UPDATED 07a TOM Remedial Law Bar Reviewer I

Omnia possum in eo qui me confortat!
1 of 598
TOM Bar Reviewer in Remedial Law I

Civil Procedure. Provisional Remedies. Special Civil Actions.
COVERAGE
I. General Principles 3
Conceptual Framework [Riano] 3
II. Jurisdiction 4
All matters related to Docket Fees 6
III. Civil Procedure 6
3.1. Actions 8
All about DEATH 8
3.2. Cause of action (coa) [Rule 2] 8
3.3. Parties to civil actions [Rule 3] 9
3.4. Venue of Actions [Rule 4] 9
3.5. Pleadings [Rule 6] 9
3.6. Summons [Rule 14] 10
3.7. Motions [Rule 15] 10
3.8. Dismissal of actions [Rule 17] 10
3.9. Pre-trial [Rule 18] 10
3.10. Intervention [Rule 19] 11
3.11. Subpoena [Rule 21] 11
3.12. Modes of discovery [Rules 23-28] 11
3.13. Trial [Rule 30] 13
3.14. Demurrer to evidence [Rule 33] 15
3.15. Judgments and final orders 18
3.16. Post-judgment remedies 18
3.17. Execution, satisfaction and effect of judgments [Rule 39] 20
3.18. Provisional remedies 21
3.18.3. Preliminary attachment [Rule 57] 22
3.18.4. Preliminary injunction [Rule 58] 24
3.18.5. Receivership [Rule 59] 27
3.18.6. Replevin [Rule 60] 30
3.18.7. Support Pendente Lite [Rule 61] 31
Omnia possum in eo qui me confortat! 2 of 598
3.19. Special civil actions (SCA) 31

3.19.4. Interpleader [Rule 62] 32
3.19.5. Declaratory reliefs and similar remedies [Rule 63] 32
3.19.6. Review of judgments and final orders or resolution of the Comelec and COA
[Rule 64] 33
3.19.7. Certiorari, prohibition and mandamus [Rule 65] 35
3.19.8. Quo warranto [Rule 66] 37
3.19.9. Expropriation [Rule 67] 38
3.19.10. Foreclosure of real estate mortgage [Rule 68] 39
3.19.11. Partition [Rule 69] 41
3.19.12. Forcible entry and unlawful detainer [Rule 70] 43
3.19.13. Contempt [Rule 71] 44
——————————————————————————————
I. General Principles
1.1. Concept of remedial law 3

1.2. Substantive law vis-á-vis remedial law 3
PRINCIPAL SOURCES OF REMEDIAL LAW 4
THE RULES OF COURT (the Rules) 6
1.3. Rule-making power of the Supreme Court 6
1.3.1 Limitations on the rule-making power of the Supreme Court 8
1.3.2. Power of the Supreme Court to amend and suspend procedural rules 8
OTHER POWERS OF THE SUPREME COURT 8
1.4. Nature of Philippine courts 9
1.4.1. Meaning of a court 9
1.4.2. Court as distinguished from a judge 9
1.4.3. Classification of Philippine courts 10
1.4.4. Courts of original and appellate jurisdiction 10
1.4.5. Courts of general and special jurisdiction 10
1.4.6. Constitutional and statutory courts 10
1.4.7. Courts of law and equity 11
1.4.8. Principle of judicial hierarchy (PJH) or Doctrine of JH (DJH) 11
1.4.9. Doctrine of non-interference or doctrine of judicial stability (DJS) 11
——————————————————————————————
1.1. Concept of remedial law
REMEDIAL LAW (RL)1

1. These are adjective laws which prescribe rules and forms of procedure of
enforcing rights or obtaining redress for their invasion. They refer to rules of
procedure by which courts applying laws of all kinds can properly administer
justice.
2. They include rules of pleadings, practice and evidence (Tan, Jr. v. CA,
January 16, 2002); a.k.a. PROCEDURAL LAW
3. RL plays a vital role in the administration of justice, which lies at the very
1
What is the concept of remedial law? 2% (2006 Bar Question) SUGGESTED ANSWER: The
concept of Remedial Law is that it is a branch of public law which prescribes the procedural
rules to be observed in litigations, whether civil, criminal, or administrative, and in special
proceedings, as well as the remedies or reliefs available in each case.
core of procedural due process: a law which hears before it condemns, one
which proceeds upon inquiry and renders judgment only after trial, and
contemplates an opportunity to be heard before judgment is rendered
(Albert v. University Publishing, January 30, 1965).
4. OBJECT OF RL: The object is not to cause an undue protraction of the
litigation, but to facilitate the adjudication of conflicting claims and to
serve, rather than to defeat, the ends of justice (Santo Tomas University
Hospital v. Surla, et al. , August 17, 1998)
5. OBJECTIVE OF THE RULES OF COURT (ROC): To secure a (JuSI):
Just, Speedy, Inexpensive disposition of every action and proceeding (Sec. 6,
Rule 1)
6. Implementation of remedial laws in our system of government (2006 Bar
Question): they are implemented through the judicial system, including the
prosecutory service of courts and quasi-judicial agencies.
1.2. Substantive law vis-á-vis remedial law

1. Substantive law is the BASIS of remedial law
a. It is substantive (not procedural) when the rule takes away a vested
right or when it creates a right such as the right to appeal
b. It is procedural if it operates as a means of implementing an existing
right,(Fabian v. Desierto, September 16, 1998).
2. Procedural/remedial law provides the methods/processes by which
substantive law is given meaning. EG: Fraud under Art 1170 of NCC makes
one liable for damages. How do you claim damages? File a complaint.
3. *****SUBSTANTIVE LAW PREVAILS OVER PROCEDURAL LAW.2
The latter must not DIM: diminish, increase or modify substantial rights.
SUBSTANTIVE LAW REMEDIAL LAW
Part of the law which Prescribes the methods of enforcing those rights and obligations
creates, defines or created by substantive law (Bustos v. Lucero, 81 Phil 640).
regulates rights concerning
life, liberty or property; or the
powers of agencies or
instrumentalities for the
administration of public
affairs, which when violated
gives rise to a cause of
action.
2
Distinguish between substantive law and remedial, law. 2% (2006 Bar Question) SUGGESTED
ANSWER: Substantive law is that part of the law which creates, defines and regulates rights
and obligations, the violation of which gives rise to a cause of action. On the other hand,
remedial law prescribes the method of enforcing rights or obtaining redress for their
invasion (cf. Bustos v. Lucero, 81 Phil. 540, 650 [1948]).
SUBSTANTIVE LAW REMEDIAL LAW

Creates vested rights Does not create vested rights
Generally prospective in GR: May be applied retroactively; there is no vested right in
application any particular remedy, and a litigant cannot insist on the
application to the trial of his case, whether civil or criminal, of
any other than the existing rules of procedure (Tan Jr. v. CA,
January 16, 2002).
XPNs: 1. The statute itself expressly or by necessary implication
provides that pending actions are excepted from its operation; 2.
To apply it to pending proceedings would impair vested rights;
3. If to do so would not be feasible or would work injustice; 4.
If to do so would involve intricate problems of due process or
impair the independence of the courts (Tan Jr. v. CA 2002)
Enacted by Congress SC is expressly empowered to promulgate procedural rules
[] *GR: procedural rules generally apply prospectively to pending cases.3

*XPNS: see the table.
3
X’s action for sum of money against Y amounting to P80,000.00 accrued before the effectivity
of the rule providing for shortened procedure in adjudicating claims that do not exceed
P100,000.00. X filed his action after the rule took effect. Will the new rule apply to his case?
(2011 BAR)
(A) No since what applies is the rule in force at the time the cause of action accrued.
(B) No, since new procedural rules cover only cases where the issues have already been joined.
(C) Yes, since procedural rules have retroactive effect.
(D) Yes, since procedural rules generally apply prospectively to pending cases.
PRINCIPAL SOURCES OF REMEDIAL LAW

1. Constitution;
2. Different laws creating the judiciary, defining and allocating jurisdiction to
courts different levels;
3. Procedural laws and rules promulgated by the SC;
4. Circulars;
5. Administrative orders;
6. Internal rules;
7. Court decisions (Herrera, 2007)
THE RULES OF COURT (the Rules)

1. Applicability: they shall apply in all the courts, except as otherwise provided by
SC [s2r1].
2. OBJECTIVE OF THE RULES OF COURT (ROC): To secure a (JuSI): Just,
Speedy, Inexpensive disposition of every action and proceeding (Sec. 6, Rule 1)
3. *****Cases governed by the Rules [s3r1]
(a) civil actions: where a party sues another for
i. the enforcement or protection of a right, or
ii. the prevention or redress of a wrong.
*NB: A civil action may either be ordinary (OCA) or special (SCA).
Both OCA & SCA are governed by OCA subject to specific rules for SCA.
(b) criminal actions: where the State prosecutes a person for an act or
omission punishable by law.
(c) A special proceeding: a remedy by which a party seeks to establish
(SRPf)
i. a status,
ii. a right, or
iii. a particular fact
3. Cases NOT governed by the Rules, though they apply by analogy or in a
suppletory character and whenever practicable and convenient. [s4r1]:
(ELCINO)
a. election cases,
b. land registration,
c. cadastral,
d. naturalization and
e. insolvency proceedings, and
f. other cases not herein provided.
RULES ON INTERPRETATIONS OF ROC PROVISIONS (1998 Bar)

1. GR: The Rules shall be liberally construed in order to promote their

objective of securing a just, speedy and inexpensive (JuSI) disposition of every
action and proceeding (Sec. 6, Rule 1).
a. By liberal construction of statutes the courts from the language used, the
subject matter, and the purposes of those framing laws, are able to find out their
true meaning (Tanada v. Yulo, May 31, 1935).
b. Note that SC has the POWER TO SUSPEND the rules—never say that
SC is wrong when it does not follow the rules.
2. *****XPNs: The following shall be strictly construed:
a. Reglementary periods;
b. Rule on forum shopping; and
c. Service of summons.
3. Effectivity of the Rules of Civil Procedure: JULY 1, 1997.
RULE ON UNIFORM INTERPRETATION

1. Latin: INTERPRETARE ET CONCORDARE LEGES LEGIBUS EST
OPTIMUS INTERPRETANDI MODUS: to interpret and harmonize laws is
the best method of interpretation;
2. The very statute must be so construed and harmonized with other statutes as
to form a uniform system of jurisprudence (Banares II v. Balising, March 13,
2000).
———————————————————————————————
1.3. Rule-making power of the Supreme Court

1. This refers to the POWER of SC TO PROMULGATE RULES. This is
EXCLUSIVE to the SC, under Section 5 (5), Article VIII of the Constitution;
*******SC has the power to promulgate rules concerning
a. the protection and enforcement of constitutional rights,
b. pleading, practice, and procedure in all courts,
c. the admission to the practice of law,
d. the integrated bar, and
e. legal assistance to the under-privileged.
2. Hence, notwithstanding any provision of substantive law exempting an
entity from the payment of docket fees, SC can still impose the same. NB: in
the 1953 and 1973 constitutions, this was a shared power between Congress
and SC, but under the 1987 Constitution, it is exclusive to SC.
3. Bases:
a. principle of separation of powers;
b. fiscal autonomy of the SC: JDF and special allowances have to be
funded.
1.3.1 Limitations on the rule-making power of the Supreme Court

*These are found in the second sentence of Section 5(5), Article VIII,
somehow outlining the characteristics of the rules: “Such rules
1. shall provide a simplified and inexpensive procedure for the speedy
disposition of cases,
2. shall be uniform for all courts of the same grade, and
3. *****shall not diminish, increase, or modify (DIM) substantive rights.”
1.3.2. Power of the Supreme Court to amend and suspend procedural

rules
1. Power of the SC to amend the Rules of Court: The SC has the power to
amend, repeal or even establish new rules for a more SIMPLIFIED and
INEXPENSIVE process, and the SPEEDY DISPOSITION of cases (Makati
Insurance Co., Inc. v. Reyes, G.R. No. 167403, August 6, 2008).
2. Power of the SC to suspend the application of the Rules of Court and
exempt a case from its operation: The courts have the POWER TO RELAX
OR SUSPEND technical or procedural rules or to EXCEPT a case from
their operation when COMPELLING REASONS so warrant or when the
purpose of justice requires it (Commissioner of Internal Revenue v. Migrant
Pagbilao Corporation, G.R. No. 159593, October 12, 2006).
3. Reasons that would warrant the suspension of the Rules of Procedure
a. The existence of SPECIAL OR COMPELLING CIRCUMSTANCES;
b. The MERITS of the case;
c. A cause not entirely attributable to the fault or negligence of the

party favored by the suspension of rules;
d. A lack of any showing that the review sought is merely frivolous and
dilatory; and
e. The other party will not be unjustly prejudiced thereby (Sarmiento
v. Zaratan, G.R. No. 167471, February 5, 2007).
4. Power to STAY proceedings and CONTROL its processes: The power to stay
proceedings is INCIDENTAL to the power inherent in every court to
control the disposition of the cases on its dockets, considering its time and
effort, and that of counsel and the litigants. But if proceedings must be stayed, it must be
done in order
a. to avoid multiplicity of suits and
b. prevent vexatious litigations, conflicting judgments, and confusion
between litigants and courts (Security Bank Corp. v. Judge Manuel Victorio,
468 SCRA 609).
5. Also under the last sentence of Section 5(5), Article VIII specifying rule-
making power of SC. It provides that “Rules of procedure of special courts
and quasi- judicial bodies shall remain effective unless disapproved by the
Supreme Court.”
OTHER POWERS OF THE SUPREME COURT

1. The Court is clothed with ample authority to review matters, even if they
are not assigned as errors in their appeal, if it finds that their consideration is
necessary in arriving at a just decision of the case.
——————————————————————————————
1.4. Nature of Philippine courts
1.4.1. Meaning of a court

1. Court is an organ of the government, belonging to the judicial
department, whose function is
a. the APPLICATION OF LAWS to controversies brought before it
and
b. the PUBLIC ADMINISTRATION OF JUSTICE (Black’s Law
Dictionary, 8th ed.).
2. FUNCTIONS of court (DAI)
a. DECIDE actual controversies and not to give opinions upon abstract
propositions (Guarduno v. Diaz, 46 Phil. 472);
b. APPLY the law;
c. INTERPRET the law.
*NB: It does not formulate public policy, which is the province of the
legislative and executive branches of government (Electromat Manufacturing

and Recording Corporation v. Hon. Ciriaco Lagunzad, G.R. No. 172699, July
27, 2011, citing Pagpalain Haulers, Inc. v. Honorable Trajano, et al., G.R. No.
133215, July 15, 1999).
1.4.2. Court as distinguished from a judge

Court Judge
It is a tribunal officially assembled Simply an officer of such tribunal (Wagenhorst v. Philadelphia

under authority of law. Life Insurance Co., 358 Pa. 55, cited by Black’s 5th ed.).
Disqualification of a judge does not May be disqualified.
affect the court.
It is a being in imagination Physical person (People ex rel. Herndon v. Opekl, 188 III
comparable to a corporation. 194, 58 NE 1996, cited by Blacks 5th ed.).
1.4.3. Classification of Philippine courts

1. Regular courts:
a. Supreme Court;
b. Court of Appeals;
c. Regional Trial Courts;
d. Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal
Trial Courts, Municipal Circuit Trial Courts;
2. Special courts:
a. Sandiganbayan;
b. Court of Tax Appeals;
c. Shari’a District Courts, Shari’a Circuit Courts;
3. Quasi-Courts or Quasi-Judicial Agencies.
1.4.4. Courts of original and appellate jurisdiction

1. Courts of original JN: exercise jurisdiction in the first instance
2. Courts of appellate JN: Superior courts reviewing and deciding cases
previously decided by a lower court
1.4.5. Courts of general and special jurisdiction

1. Courts of GENERAL JN: Those with competence to decide on their own
jurisdiction and to take cognizance of ALL cases, civil and criminal, of a
particular nature (21 CJS Courts 3).
2. Courts of SPECIAL JN: Those which have only a special jurisdiction for a
PARTICULAR PURPOSE or are clothed with special powers for the
performance of SPECIFIED DUTIES beyond which they have no authority of
any kind (21 CJS Courts 3).
1.4.6. Constitutional and statutory courts

Constitutional Court Statutory Court
Created by the Constitution: Created by law other than Constitution: CA,

Supreme Court [Art VIII, Sec 1] Sandiganbayan, CTA, RTC, MTC, MeTC, MCTC, MTCC.
Cannot be abolished by Congress May be abolished by Congress by just simply repealing
without amending the Constitution the law which created those courts
******NB: All courts in the Philippines except the SC are statutory courts.
They have been created by statutory enactments (Riano, 2011). The
Sandiganbayan is only a constitutionally-mandated court since, although
its existence is provided under Constitution, its creation was by statutory
enactment.
[] COURTS OF RECORD: These are courts whose proceedings are
enrolled and which are bound to keep written records of all trials and
proceedings handled by them (Luzano v. Romero, et al., G.R. No. L-33245,
September 30, 1971). ***RA 6031 mandates all MTCs to be courts of
record.
1.4.7. Courts of law and equity

Courts of Law Courts of Equity
Any tribunal duly Any tribunal administering justice outside the law, being ethical rather
administering than jural and belonging to the sphere of morals rather than of law. It is
the laws of the grounded on the precepts of conscience and not on any sanction of positive
land law, for equity finds no room for application where there is law.
Decides a case Adjudicates a controversy according to the common precepts of what is right and
according to the just without inquiring into the terms of the statutes
promulgated law
1.4.8. Principle of judicial hierarchy (PJH)4 or Doctrine of JH (DJH)5

1. GR: One cannot go to a higher court if a lower court can take cognizance of
4
What is meant by “hierarchy of courts”? (1996 Bar Question) SUGGESTED ANSWER:
By “hierarchy of-courts” is meant that while the Supreme Court, the Court of Appeals and the
Regional Trial Courts have concurrent original jurisdiction to issue writs of certiorari, prohibition,
mandamus, quo warranto and habeas corpus, such concurrence does not accord litigants
unrestrained freedom of choice of the court to which application therefor may be directed. The
application should be filed with the court of lower level unless the importance of the issue
involved deserves the action of the court of higher level. (Uy vs. Contreras. 237 SCRA 167)
5
Which of the following is NOT TRUE regarding the doctrine of judicial hierarchy? (2011 BAR)
(A) It derives from a specific and mandatory provision of substantive law.
(B) The Supreme Court may disregard the doctrine in cases of national interest and matters of
serious implications.
the case, in keeping with the *****LADDERIZED SYSTEM OF JUSTICE in

the Philippines. The principle provides that lower courts shall initially
decide a case before it is considered by a higher court. A higher court will
not entertain direct resort to it unless the redress desired cannot be obtained in the
appropriate courts (Santiago v. Vasquez, G.R. Nos. 99289-90, January 27, 1993).
The rationale is two-fold:
a. It would be an imposition upon the limited time of the Supreme
Court;
b. Inevitable result in a delay, intended or otherwise, in adjudication of
cases, which in some instances, had to be remanded or referred to the lower
court as the proper forum under the rules of procedure, or as better equipped
to resolve the issues because the SUPREME COURT IS NOT A TRIER OF
FACTS (Heirs of Bertuldo Hinog v. Hon. Achilles Melicor, G.R. No. 140954,
April 12, 2005).
***SC is a COURT OF LAST RESORT and must so remain if it is to
satisfactorily perform the duty assigned to it.
2. XPN (Principle of Judicial Hierarchy is NOT absolute); cases when the
Court allowed direct invocation of the SC’s original jurisdiction on the
following grounds:*****
a. When dictated by public welfare and the advancement of public
policy;
b. When demanded by the broader interest of justice;
c. When the challenged orders were patent nullities; or
d. When analogous, exceptional and compelling circumstances
called for and justified the immediate and direct handling of the case
(Republic of the Philippines v. Hon. Ramon S. Caguioa, et al., G.R. No.
174385, February 20, 2013).
e. If the issue is a PURE QUESTION OF LAW, i.e., the
doubt/controversy arises as to what law is applicable. Because SC is not a trier
of facts. [Miyaki case]
f. If the issue is a matter of NATIONAL INTEREST or it is of
TRANSCENDENTAL IMPORTANCE. It involves matters with serious
implications. There is a COMPELLING REASON, URGENT PUBLIC
INTEREST/POLICY involved.
*****SC may disregard the principle of hierarchy of courts if warranted
by the nature and importance of the issues raised in the interest of
SPEEDY justice and to avoid future litigations (Riano, 2011).
(C) A higher court will not entertain direct recourse to it if redress can be obtained in the
appropriate courts.
(D) The reason for it is the need for higher courts to devote more time to matters within their
exclusive jurisdiction.
3. Applicability: the principle is applicable when there is CONCURRENT JN

among courts:
a. in cases of issuance of Certiorari, Prohibition, Mandamus, Habeas
Corpus & Quo Warranto, the RTC, CA & SC have concurrent JN.
b. in cases involving ambassadors, consuls: SC & RTC have concurrent
JN
c. A petition to review the decision of the NLRC (LA to NLRC) under
Rule 65 has to be filed first with the CA before SC following this principle
[St Martin v. NLRC]
————————————————
1.4.9. Doctrine of non-interference or doctrine of judicial stability (DJS)

1. GR: *****No court can interfere by injunction with the judgments or
orders of another court6 of concurrent jurisdiction having the power to
grant the relief sought by the injunction (Atty. Cabili v. Judge Balindog, A.M.
No. RTJ-10-2225, September 6, 2011). IOW: No court has the power to
interfere by injunction with the judgments or decrees of a court of concurrent
or coordinate jurisdiction. The various trial courts of a province or city,
having the same or equal authority, should not, cannot, and are not permitted
to interfere with their respective cases, much less with their orders or
judgments. A contrary rule would obviously lead to confusion and seriously
hamper the administration of justice (The Heirs of Sps. Yadno vs. The Heirs
of Sps. Anchales, G.R No. 174582, October 11, 2012). EG:
a. Applicable to two RTCs because they are of equal level.
b. Applicable to decisions of NLRC & SEC: RTCs cannot issue
injunctions.
c. Applicable to decisions of CTA: they cannot be appealed to CA, since
they are of the same level.
2. *****XPN:
a. The doctrine does not apply where a third party claimant
(Terceria) is involved (Santos v. Bayhon, G.R. No. 88643, July 23, 1991). The
Affidavit of Third Party Claim contains the claimant’s rights and interests
6
Doctrine of non-interference or doctrine of judicial stability
What is the doctrine of judicial stability or non interference? (2011 BAR)
(A) Once jurisdiction has attached to a court, it can not be deprived of it by subsequent happenings
or events.
(B) Courts will not hear and decide cases involving issues that come within the jurisdiction of
administrative tribunals.
(C) No court has the authority to interfere by injunction with the judgment of another
court of coordinate jurisdiction.
(D) A higher court will not entertain direct resort to it unless the redress sought cannot be obtained
from the appropriate court.
over real property that was levied.7

b. WHY? It would be the height of injustice to allow a property
belonging to a third party to be levied and sold in public auction: the RTC has
no JN over his person; it results in UNLAWFUL TAKING; and it is
violative of DUE PROCESS.
3. RATIONALE for the rule: founded on the concept of jurisdiction: a court
that acquires jurisdiction over the case and renders judgment therein has
jurisdiction over its judgment, to the EXCLUSION of all other
coordinate courts, for its execution and over all its incidents, and to CONTROL, in
furtherance of justice, the conduct of ministerial officers acting in connection with
this judgment (De Leon v. Hon. Salvador, et al., 146 Phil. 1051).
4. Related concept: courts of the same level do not have the power to review
their peers’ decisions.8
7
Q: Its decision in Civil Case No. 93-1000 entitled “Beta Inc. vs. Jaime dela Cruz" having become
final and executory, the RTC of Manila (Branch 21) issued a writ of execution for its enforcement.
The sheriff levied upon certain chattels and scheduled the auction sale thereof. However, Jacinto
Santamaria filed a third-party claim with the sheriff asserting that the chattels levied upon by
the latter belong to him and not to the judgment debtor (Jaime dela Cruz). Because the Judgment
creditor (Beta, Inc.) posted an indemnity bond in favor of the sheriff, the latter refused to
release the chattels and threatened to proceed with the auction sale. Consequently, Jacinto
Santamaria filed an action against Beta Inc. and the sheriff in the RTC of Bulacan (Branch 8),
docketed as Civil Case No. 93-487, laying claim to the levied chattels and seeking to enjoin
the sheriff from proceeding with the auction sale thereof. As prayed for, the Court in Civil Case
No. 93-487 issued a temporary restraining order, followed by a writ of preliminary
injunction, by way of enjoining the sheriff from implementing the writ of execution issued in
Civil Case No. 93- 1000 against the levied chattels pending determination of Jacinto Santamaria’s
claim thereto. Beta.lnc. and the sheriff filed a motion to dismiss Civil Case No. 93-487 on the
ground that the court has no power to interfere with the judgment of the KIC of Manila (Branch
21), a coordinate court. How should the motion to dismiss be resolved? Explain. (1993 Bar
Question) Answer:
The motion to dismiss should be denied. A third-party claimant has the right to
vindicate his claim to the property by any proper action. It is the RTC of Bulacan which has the
Jurisdiction to determine the ownership of the property subject of the third-party claim.
Obviously, a Judgment rendered in favor of the third-party claimant would not constitute
interference with the powers or processes of the RTC of Manila. If that be so — and it is
property, being that of a stranger, is not subject to levy on execution — then an interlocutory
order such as a preliminary injunction, upon a claim and prima facie showing of ownership by
the claimant, cannot be considered as such interference either. Moreover, the writ is issued
against the sheriff, not against the court. [Abiera vs. Court of Appeals. 45 SCRA 314)
8
Q: Judge Villamor was the Presiding Judge of the Regional Trial Court of Quezon City (Branch
50), in the criminal case for qualified theft against Ding. After trial. Judge Villamor acquitted Ding
of the charge. Subsequently, Paterno, the complaining witness in the aforesaid criminal case, filed a
civil action for damages against Judge Villamor for knowingly rendering an unjust judgment when
he acquitted Ding of the qualified theft. The case was filed in the Regional Trial Court of Pasay
City (Branch 100) presided over by Judge Villegas. Judge Villamor filed a motion to dismiss the
civil case for lack of authority on the part of Regional Trial Court of Pasay City (Branch 100) to
——————————————————————————————
Conceptual Framework [Riano]

I. Complaint
A. Right of action and Cause of action [R2]
B. Jurisdiction [BP 129 aa by RA 7691]
C. Venue [R4]
D. Parties [R3]
E. Preparation of the Complaint [R6, R7, R8]
F. Filing and Payment (payment of docket fees needed for the court to
acquire JN); Effect of filing: a. court acquires JN over the person of the
plaintiff; b. the running of the prescriptive period is interrupted.
1. Provisional Remedies (interim reliefs, temporary reliefs)
2. Modes of Discovery (depositon before or pending action, etc)
G. Amendment of the Complaint (when you realize you committed a
mistake after filing; EG: you did not mention that the debt is due &
demandable; or the amount was wrong) [R10]. Compare with CrimPro.
H. Dismissal by the Plaintiff [R17]
II. Summons9
A. Motion for Bill of Particulars [MBP, R12]: option of the defendant
after receiving summons. Only purpose: to enable him to prepare a Responsive
Pleading, not to gather evidence from the plaintiff (the latter could be had
under the Modes of Discovery or during Pre-trial). NB: MBP in CrimPro
[R116] but with a different purpose: to help the defendant to plead property
and prepare for trial.
B. Motion to Dismiss [MTD, R16];
C. Answer [R6, infra]
review his (Judge Villamor) decision. How should the motion dismiss be resolved? Why? (1993 Bar
Question) Answer:
The motion to dismiss should be granted. The Regional Trial Court of Pasay City has no
authority to review the decision of Judge Villamor acquitting Ding. *****To allow Judge
Villegas to proceed with the action for damages against Judge Villamor, a co- equal judge of
a co-equal court would in effect permit a court to review and interfere with the Judgment of
a co-equal court over which it has no appellate Jurisdiction or power to review. [Villamor vs.
Solas, 203 SCRA 540).
Alternative Answer: The motion to dismiss should be denied. Since the criminal case was
terminated with the acquittal of Ding, the civil action for damages against Judge Villamor for
knowingly rendering an unjust Judgment may properly be filed with the RTC of Pasay City having
jurisdiction thereof.
9
*****NB: upon filing of the Complaint, the Clerk of Court issues summons to the defendant for
two reasons: a. for the court to acquire JN over his person; b. as a due process requirement
(procedural DP).
III. Answer [This is a Responsive (not Initiatory) Pleading]

*Various scenarios: 1. No answer [Default, Sec3, R9]; 2. With an answer
but: a. no specific denials, hence, no issues, therefore no need for trial [R34;
because there is no factum probandum—matters which you are supposed to
prove]. This is different from Summary Judgment, where there is an issue but it
is not genuine.
*Parts of the answer: 1. Negative Defense; 2. Affirmative Defense.
A. Answer with Counterclaim [R6: no leave of court or with LoC]: by
one party against the other party: to avoid multiplicity of suits;
B. Answer with Crossclaim [R6: no LoC]: by one party against a co-party;
EG: defendant vs. defendant;
C. Answer with Third (or Fourth, etc) Party Complaint [R6: with LoC];
D. Intervention [R19 with LoC]: not a party to the case & want to enter.
E. Reply [R6]: answer to the Answer; if 10 days lapsed without it, the
pleading period is over (NB: motions are not pleadings). Hence, Pre-Trial kicks
in, infra.
IV. Pre-Trial (PT) [R18]

*MANDATORY for both Civ [R18, Sec 2] & Crim Pro [R118, Sec 1]
*Is there PT on appeal? None. But there is a Preliminary Conference
[R48], equivalent to PT on appeal.
*Important purpose of PT: amicable settlement or submission to
alternative modes of dispute resolution. The latter is not in CrimPro because it
would mean an implied admission of guilt.
V. Trial [R30]
*Plaintiff starts; impliedly, the defendant can start too. Under Sec 11,
R119: when the defendant interposes a lawful defense, the order is reversed.
A. Plaintiff presents evidence;
B. After Plaintiff presents evidence and formally offers his evidence
[‘with the submission of my exhibits, I rest my case’], the defendant has the
following options:
1. Defendant presents his evidence; or
2. Files a Demurrer to Evidence (DTE), a species of MTD. NB:
this is also applicable in SpecPro, unless there is a contrary provision. If DTE
is granted in Crim: it means acquittal.
VI. Judgment [JT, R36]

*Note the following: requirements for a valid JT; JT nunc pro tunc; fallo;
dispositive portion; obiter dictum.
VII. Post-Judgment Remedies or Remedies against the judgment

A. Within the period of appeal (before JT becomes final & executory):
1. Motion for Reconsideration [MR, R37]
2. Motion for New Trial [MNT, R37]
3. File an Appeal [R40, R41, R42, R43, R45]
B. After the lapse of the appeal period (JT has become final &
executory)
1. Petition for Relief [R38];
2. Annulment of Judgment [R47];
3. Extraordinary remedy of certiorari [R65];
4. Collateral attack on the judgment [Jurisprudence; not covered
by the Rules].
VIII. Execution & Satisfaction of Judgment [R39]

——————————————————————————————
II. Jurisdiction
CONCEPT OF JURISDICTION (JN) 18

ASPECTS OF JURISDICTION 18
HOW TO DETERMINE JURISDICTION 20
2.1 JN over the parties 21
Voluntary appearance: equivalent to service of summons 22
2.2 JN over the subject matter 24
2.2 2. Jurisdiction versus the exercise of jurisdiction 27
2.2 3. Error of jurisdiction as distinguished from error of judgment 30
2.2 4. How jurisdiction is conferred and determined 31
2.2 5. Doctrine of primary jurisdiction (DPJ) 31
2.3.5.a. Doctrine of Exhaustion of Administrative Remedies (DEAR) 32
2.2 6. Doctrine of adherence of JN (DAJ) or Continuity of JN (DCJ) 32
2.3. JN over the issues 33
2.4 JN over the res or property in litigation 35
2.5. Jurisdiction of courts 37
2.5.1. Supreme Court 38
ON APPELLATE COURTS IN GENERAL 39
2.5.2. Court of Appeals 41
2.5.3. Court of Tax Appeals 43
2.5.4. Sandiganbayan***** 44
2.5.5. Regional Trial Courts 46
2.5.6. Family Courts 47
2.5.7. Metropolitan Trial Courts/Municipal Trial Courts 51
2.5.8. Shari’a Courts 54
2.6. Over small claims; cases covered by the Rules on Summary Procedure
and Barangay conciliation 56
2.7 Totality rule 61
——————————————————————————————
CONCEPT OF JURISDICTION (JN)

1. TRADITIONAL [PCGG v. Cuenca]: the power to TRY, HEAR &
DECIDE a case.
2. EXPANDED in Echegaray v. SOJ: it includes the power to EXECUTE the
judgment until the final disposition of the case, and the full and complete
service of sentence by the accused in a criminal case.
***Hence, SC can issue a TRO on the execution of the death
penalty; SC possesses collateral rights—there is no higher right than the
right to life.
3. ******And so, JN is the power and authority of a court to try, hear, and
decide a case and the power to enforce its determination (21 CJS, 9).
4. Latin “juris” (jus: right/law) and “dico” (dicere: to speak): “I speak of the
law.”
5. How is JN conferred? ******It is CONFERRED BY LAW. Consequences:
a. Parties cannot change the JN of the court;
b. JN cannot be waived;
c. even if the court believes it has JN, its judgment will be rendered void,
because good faith does not confer JN.
6. How does the judge know WON his court has JN over the case? He as to
READ the MATERIAL ALLEGATIONS of the complaint;10 he should not
10
Q: Estrella was the registered owner of a huge parcel of land located in a remote part of their
barrio in Benguet. However, when she visited the property after she took a long vacation abroad,
she was surprised to see that her childhood friend, John, had established a vacation house
on her property. Both Estrella and John were residents of the same barangay. To recover
possession, Estrella filed a complaint for ejectment with the Municipal Trial Court (MTC),
alleging that she is the true owner of the land as evidenced by her certificate of title and tax
declaration which showed the assessed value of the property as P21,000.00. On the other hand,
John refuted Estrella’s claim of ownership and submitted in evidence a Deed of Absolute Sale
between him and Estrella. After the filing of John’s answer, the MTC observed that the real
issue was one of ownership and not of possession. Hence, the MTC dismissed the
complaint for lack of jurisdiction. On appeal by Estrella to the Regional Trial Court (RTC), a full-
blown trial was conducted as if the case was originally filed with it. The RTC reasoned that
based on the assessed value of the property, it was the court of proper jurisdiction. Eventually, the
RTC rendered a judgment declaring John as the owner of the land and, hence, entitled to the
possession thereof. (2014)
a. Was the MTC correct in dismissing the complaint for lack of jurisdiction? Why or why
not?
A: NO. The Metropolitan Trial Court was not correct in dismissing the Complaint for lack of
jurisdiction. ******It is well settled that jurisdiction is determined by the allegations contained
in the complaint. The contention of defendant in his Motion to Dismiss has nothing to do in
[with] the determination of jurisdiction. Otherwise, jurisdiction would become dependent
almost entirely upon the whims of the defendant (Medical Plaza Makati Condominium v.
Cullen, G.R. No. 181416, November 11, 2013). Relative thereto, the Municipal Trial Courts
have exclusive original jurisdiction over cases of forcible entry and unlawful detainer
(Section 33, B.P. 129). Hence, the Metropolitan Trial Court is not correct in dismissing the
complaint for lack of jurisdiction. Besides, the rules allow provisional determination of
ownership in ejectment cases when the defendant raises the defense of ownership in his pleadings
and the question of possession cannot be resolved without deciding the issue of ownership (Sec.
16, Rule 70). Accordingly, the inferior courts have jurisdiction to resolve questions of ownership
rely solely on the title of the complaint. NB: Russell vs. Vestil: determine the
PRIMARY PURPOSE of the action.
ASPECTS OF JURISDICTION
1. Two aspects (Villasis: first two); four aspects (Riano: plus the other two)
a. JN over the subject matter of the litigation: this is CONFERRED
BY LAW; it is beyond competence of parties
b. JN over the person of the parties involved or the res:
c. JN over the issues
d. JN over the res
2. Summarized in De Pedro vs. Romasan Development Corporation,
November 26, 2014: Courts may exercise their powers validly and with binding
effect if they acquire jurisdiction over:**
(a) the cause of action or the subject matter11 of the case;
(b) the thing or the res;12
(c) the parties;13 and
(d) the remedy.—
[] *****Regardless of the nature of the action, proper service of
summons is imperative. A decision rendered without proper service of
summons suffers a DEFECT IN JURISDICTION. Respondent’s
institution of a proceeding for annulment of petitioner’s certificate of title
whenever it is necessary to decide the question of possession in an ejectment case. (Serreno v.

Spouses Gutierrez, G.R. No. 162366, November 10, 2006).
b. Was the RTC correct in ruling that based on the assessed value of the property, the
case was within its original jurisdiction and, hence, it may conduct a full-blown trial of the appealed
case as if it was originally filed with it? Why or why not? A: NO. *****It is settled that forcible
entry and unlawful detainer cases are within the exclusive original jurisdiction of the MTC.
Moreover, all cases decided by the MTC are generally appealable to the RTC irrespective of the
amounts involved (Sec. 22, B.P. 129).
11
*Jurisdiction over the subject matter refers to the power or authority of courts to hear and
decide cases of a general class. It is conferred by the Constitution or by law. It is not acquired
through administrative issuances or court orders. It is not acquired by agreement,
stipulation, waiver, or silence. Any decision by a court, without a law vesting jurisdiction upon such court, is
VOID.
12
*JURISDICTION OVER THE THING OR RES is the power of the court over an object
or thing being litigated. The court may acquire jurisdiction over the thing by actually or
constructively seizing or placing it under the court’s custody.
13
*JURISDICTION OVER THE PARTIES refers to the power of the court to make
decisions that are binding on persons.
i. The courts acquire jurisdiction over COMPLAINANTS OR PETITIONERS as soon as they
file their complaints or petitions.
ii. . Over the persons of DEFENDANTS OR RESPONDENTS, courts acquire jurisdiction by a
valid service of summons or through their voluntary submission. Generally, a person
voluntarily submits to the court’s jurisdiction when he or she participates in the trial despite
improper service of summons.
is sufficient to vest the court with jurisdiction over the RES, but it is not
sufficient for the court to proceed with the case with authority and
competence.
HOW TO DETERMINE JURISDICTION

1. JN IS CONFERRED BY LAW—DETERMINED BY THE
ALLEGATIONS IN THE COMPLAINT [Russel vs Vestil (1999)].
******The averments in the complaint and the character of the relief sought
are the ones to be consulted. It is axiomatic that jurisdiction over the subject
matter14 of a case is conferred by law and is determined by the allegations
in the complaint and the character of the relief sought, irrespective of
whether the plaintiff is entitled to all or some of the claims asserted therein.
[] Nor is jurisdiction changed by the defenses in the answer;
otherwise, the defendant may easily delay a case by raising other issues, then,
claim lack of jurisdiction. Erorita vs Dumlao (2016)
2. DETERMINE THE NATURE OF THE PRINCIPAL ACTION or
REMEDY [Russel vs Vestil (1999)]: In determining whether an action is one
the subject matter of which is not capable of pecuniary estimation this Court
has adopted the criterion of first ascertaining the nature of the principal
action or remedy sought.
a. If it is primarily for the recovery of a sum of money, the claim is
considered capable of pecuniary estimation, and whether jurisdiction is in
the municipal courts or in instance would depend on the amount of the
claim.
b. However, where the basic issue is something other than the right to
recover a sum of money, where the money claim is purely incidental to,
or a consequence of, the principal relief sought, this Court has
considered such where the subject of the litigation may not be estimated
in terms of money, and are cognizable exclusively by RTC.
3. TEST OF JN IS THE NATURE OF THE OFFENSE, NOT THE
PERSONALITY OF THE OFFENDER: [the] Court does not have
jurisdiction to impose the proper disciplinary action against civil
registrars. Well-settled is the rule that what controls is not the designation
of the offense but the actual facts recited in the complaint. With the
promulgation of the Local Government Code, *****the power of
administrative supervision over civil registrars was devolved to the
14
[] Jurisdiction over the subject matter is determined by the nature of the cause of action and of
the relief sought in the complaint.
municipal and city mayors of the respective local government units. Mamiscal
v. Abdullah, July 1, 2015.15
4. ******When the court lacks jurisdiction, it must dismiss the case, even
motu propio, and not to remand or forward the case to another court.16
——————————————————————————————
2.1 JN over the parties
To understand the concepts in this section, one has to grasp the following:
1. Personal action vs. Real action: refers to the nature of the subject matter
of the controversy involved.
2. ******Compared to: Actions in personam, in rem & quasi in rem: which
depend on the BINDING EFFECT of the judgment to be rendered in the action.
2.1.1. How jurisdiction over the plaintiff is acquired

2.1.2. How jurisdiction over the defendant is acquired
1. Summary: when JN over the plaintiff and defendant is acquired.
15
It becomes apparent that this Court does not have jurisdiction to impose the proper
disciplinary action against civil registrars. While he is undoubtedly a member of the Judiciary as
Clerk of Court of the Shari’a Circuit Court, a review of the subject complaint reveals that Mamiscal
seeks to hold Abdullah liable for registering the divorce and issuing the CRD pursuant to his duties
as Circuit Registrar of Muslim divorces. It has been said that the test of jurisdiction is the
NATURE of the offense and NOT THE PERSONALITY of the offender. The fact that the
complaint charges Abdullah for “conduct unbecoming of a court employee” is of no moment.
Well-settled is the rule that what controls is not the designation of the offense but the actual
facts recited in the complaint. Verily, unless jurisdiction has been conferred by some legislative act, no court or
tribunal can act on a matter submitted to it. With the promulgation of the Local Government Code, the
power of administrative supervision over civil registrars was devolved to the municipal and
city mayors of the respective local government units. Mamiscal v. Abdullah, July 1, 2015.
16
Q: Plaintiff filed a complaint for a sum of money against defendant with the MeTC- Makati, the
total amount of the demand, exclusive of interest, damages of whatever kind, attorney’s fees,
litigation expenses, and costs, being P1,000,000. In due time, defendant filed a motion to dismiss
the complaint on the ground of the MeTC’s lack of jurisdiction over the subject matter. After due
hearing, the MeTC 11) ruled that the court indeed lacked jurisdiction over the subject matter of the
complaint; and (2) ordered that the case therefore should be forwarded to the proper Regional
Trial Court immediately.
Was the court's ruling concerning jurisdiction correct? Was the court’s order to forward the case
proper? Explain briefly. (5%)(2004 Bar Question) SUGGESTED ANSWER:
Yes. The MeTC did not have jurisdiction over the case because the total amount of the
demand exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses, and
costs, was PIM. Its jurisdictional amount at this time should not exceed P400,000.00 (Sec. 33 of
B.P. Big. 129, as amended by R.A. No. 7691). ******The court's order to forward the case to the
RTC is not proper. It should merely dismiss the complaint. Under Sec. 3 of Rule 16, the court
may dismiss the action or claim, deny the motion or order the amendment of the pleading
but not to forward the case to another court.
Plaintiff Defendant
1. Plaintiff files 1. By his voluntary appearance in court and his submission to its authority; 2. By
the complaint; and valid service of summons; Other coercive process upon him (arrest in
2. Pays the docket criminal cases). *****not essential in actions in rem or quasi in rem as long
fees. as the court has jurisdiction over the res.
ACQUIRING JN OVER THE PLAINTIFF17

1. Two requisites must concur:
a. By the filing of the complaint; NB: Plaintiff cannot assail it even if he
filed it in the wrong court: he is estopped! It is the defending party who may
question the correction of filing in court.
b. and By payment of DOCKET FEES.
2. Specific scenario: in a petition for change of name, the alias of the petitioner
has to be placed in the caption, otherwise, the court would not acquire JN.18
ACQUIRING JN OVER THE DEFENDANT

1. Summary:
a. By his voluntary appearance in court and his submission to its authority;
b. By valid service of summons; Other coercive process upon him
(arrest in criminal cases).
17
How is jurisdiction acquired by a court over the person of: (1994 Bar Question) the plaintiff in a
special civil action for mandamus? SUGGESTED ANSWER:
Jurisdiction is acquired over the plaintiff in a special civil action for mandamus by the
commencement or filing of the action.
ALTERNATIVEANSWER: Such Jurisdiction is acquired by the filing of the action and
the payment of the prescribed docket fees. [TOM thinks that the alternative answer is more
accurate]
18
Pernito, also known in the community as Peregrino filed a petition for change of name to Pedro.
The name Peregrino appeared in the body of the petition but not in the caption. When the
petition was published, the caption and the body of the petition were merely lifted verbatim, so
that as published, the petition’s caption still did not contain Peregrino as the petitioner’s alias. The
government lawyer filed a motion to dismiss on the ground that, notwithstanding
publication for the requisite number of times, the court did not acquire Jurisdiction over
the petition because petitioner’s alias (Peregrino) did not appear in the published caption. The
court denied the motion to dismiss with the ruling that there was substantial compliance with the
law and that the omission of the alias in the caption may be deemed de minimis because the alias
was clearly set forth in the petition itself. Was the court correct in denying the motion to dismiss?
Explain. (1992 Bar Question)
SUGGESTED ANSWER: No, the failure of the petitioner to include his alias
(Peregrino) in the caption is a jurisdictional defect and the inclusion of the alias in the body of
the petition does not cure said defect. The reason for the rule is that the ordinary reader only
glances fleetingly at the caption in a special proceeding and only if the caption strikes him does he
proceed to read the body of the petition; hence, he will probably not notice the other names or
aliases of the petitioner. (Gil Go vs. Republic, 77 SCRA 65)
*****not essential in actions in rem or quasi in rem as long as the court

has jurisdiction over the res.
[] Proceed to “summons” to a detailed discussion on valid service of
summons, infra.
2. It depends on the nature of the case—Purpose of summons in:
a. Actions in personam
i. To acquire jurisdiction over the person of the defendant; and
ii. To give notice to the defendant that an action has been
commenced against him (Umandap v. Sabio, August 29, 2000; Nation Petroleum
Gas, Inc. v. RCBC, August 17, 2015).
b. Actions in rem and quasi in rem: to acquire JN over the res; not
to acquire jurisdiction over the defendant but mainly to satisfy the
constitutional requirement of due process19 (Gomez v. CA, March 10,
2004).
[] For a detailed explanation of these concepts, proceed to “summons”.
3. Bar scenarios: How is jurisdiction acquired by a court over the person of:
a. the defendant in an action for unlawful detainer [Bar 1994]?
Jurisdiction is acquired over the person of the defendant in an action for
unlawful detainer by the proper service of summons on him or by his
voluntary appearance.
b. a non-resident defendant who is not found in the Philippines, in an
action for compulsory acknowledgment of his natural child [Bar 1994]?
Jurisdiction cannot be acquired over the person of a non-resident defendant
who is not found in the Philippines in an action for compulsory
acknowledgment of his natural child because he is outside the jurisdiction
of the court. ALTERNATIVE ANSWER: Such jurisdiction can be acquired by
the voluntary appearance of the non-resident defendant who is not found
in the Philippines.
Voluntary appearance: equivalent to service of summons

1. Voluntary appearance: any appearance of the defendant in court, provided
he does not raise the question of lack of jurisdiction of the court (Flores v.
Zurbito, 37 Phil. 746; Carballo v. Encarnacion, 92 Phil. 974). It is equivalent
to service of summons (Sec. 20, Rule 14). An appearance in whatever form,
19
Importance of compliance with the rules: Compliance with the rules regarding the service of
summons is **as much an issue of due process as of jurisdiction. The essence of due process
is to be found in the reasonable opportunity to be heard and submit any evidence one may
have in support of his defense.
*EG: It is elementary that before a person can be deprived of his property, he should first
be informed of
a. the claim against him and
b. the theory on which such claim is premised.
without explicitly objecting to the jurisdiction of the court over the person, is a
submission to the jurisdiction of the court over the person.
a. GR: voluntary appearance shall be equivalent to service of
summons, and the consequent submission of one’s person to the jurisdiction
of the court; NB: Voluntary appearance cures the defect in the service of
summons.
b. XPN: The inclusion in a motion to dismiss of other grounds
(affirmative defenses, not affirmative reliefs: because if it’s affirmative reliefs, there is voluntary
submission to the court’s jurisdiction, unless the jurisdiction of the court is question, infra)
aside from/in addition to lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance.
2. How? It may be made by simply filing a formal motion, or plea or
answer. If his motion is for any other purpose than to object to the jurisdiction of the court
over his person, he thereby submits himself to the jurisdiction of the court
(Busuego v. CA, No. L-48955, June 30, 1987; La Naval Drug Corp. v. CA,
G.R. No. 103200, August 31, 1994).
3. Filing of pleadings seeking affirmative reliefs constitutes voluntary
appearance
a. GR: Seeking affirmative relief20 constitutes voluntary appearance, and
20
*The phrase "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" refers
to affirmative defenses, not affirmative reliefs. By seeking affirmative reliefs from the trial
court, the individual petitioners are DEEMED to have VOLUNTARILY SUBMITTED to
the jurisdiction of said court. 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. Nation vs RCBC (2015)
*EG: Special appearance operates as an exception to the general rule on voluntary
appearance; Accordingly, objections to the jurisdiction of the court over the persons of the
defendant must be explicitly made, i.e., set forth in an unequivocal manner; Failure to do so
constitutes voluntary submission to the jurisdiction of the court, especially in instances where
a pleading or motion seeking affirmative relief is filed & submitted to the court for resolution.
Thus, by asking for affirmative relief, i.e., the dismissal of Reicon’s certiorari petition, bereft
of objection, the Court concluded that Diamond had submitted itself to the jurisdiction of the
appellate court. Reicon Realty vs Diamond Dragon Realty (2015)
Hence, a **special (and conditional) appearance before the court to question JN—
challenging its jurisdiction over the person through a motion to dismiss even if the movant
invokes other grounds—is NOT tantamount to estoppel or a waiver by the movant of his objection
to jurisdiction over his person; and such is not constitutive of a voluntary submission to the
jurisdiction of the court. [Garcia v. Sandiganbayan, October 12, 2009; La Naval Drug Corp. v. CA 1994].
Hence, a MTD will prosper; the inclusion of other grounds is not considered as voluntary
appearance. NB: **compare this with a General Appearance where one invokes all grounds;
Special Appearance questions the lack of JN over the person of the defendant [NB: alternative
defenses can be had even if they are inconsistent with each other; like alternative coa].
And so, when is voluntary appearance considered valid service of summons? When the
voluntary appearance of the defendant in court is without qualification, in which case he is deemed
the consequent submission of one’s person to the jurisdiction of the court.

b.******XPNs: In the case of pleadings whose prayer is precisely for
the avoidance of the jurisdiction of the court, which only leads to a
SPECIAL APPEARANCE.21 These pleadings are:
i. In civil cases, motions to DISMISS on the ground of lack of
jurisdiction over the person of the defendant, *****whether or not other grounds
for dismissal are included;
ii. In criminal cases, motions to QUASH a complaint on the
ground of lack of jurisdiction over the person of the accused; and
iii. Motions to QUASH a warrant of arrest.
******The first 2 are consequences of the fact that failure to file
them would constitute a waiver of the defense of lack of jurisdiction over
the person. The 3rd is a consequence of the fact that it is the very legality of
the court process forcing the submission of the person of the accused that is
the very issue in a motion to quash a warrant of arrest (Miranda v. Tuliao, G.R.
No. 158763, March 31, 2006)
4. Forms of voluntary appearance: In general, **when a defendant seeks an
affirmative relief (EG: he filed a motion for extension to file an Answer), he is
deemed to have voluntarily submitted his person over to the JN of the court.
a. Voluntary appearance of attorney;
b. A motion, by answer, or simple manifestation (Flores v. Surbito,
March 8, 1918);
c. A telegraphic motion for postponement (Punzalan v. Papica,
February 29, 1960);
d. Filing a motion for dissolution of attachment;
e. Failure to question the invalid service of summons (Navale v. CA,
February 20, 1996); hence, if the defendant filed a MTD challenging the
to have waived his defense of lack of jurisdiction over his person due to improper service of summons.
21
BAR 2017: Q: Teddy filed against Buboy an action for rescission of a contract for the sale of a
commercial lot. After having been told by the wife of Buboy that her husband was out of town and
would not be back until after a couple of days, the sheriff requested the wife to just receive the
summons in behalf of her husband. The wife acceded to the request, received the summons and a
copy of the complaint, and signed for the same (…) (b) If Buboy files a motion to dismiss the
complaint based on the twin grounds of lack of jurisdiction over his person and
prescription of the cause of action, may he be deemed to have voluntarily submitted
himself to the jurisdiction of the court? Explain your answer briefly. SUGGESTED
ANSWER: (…) (b) No, Buboy may not be deemed to have voluntarily submitted himself to the
jurisdiction of the court. Under the Rules of Civil Procedure, the inclusion in a motion to dismiss
of other grounds aside from lack of personal jurisdiction shall not be deemed a voluntary
appearance. [Sec. 20, Rule 14] (Jurist Review Center, Inc.)
manner summons was served, that will not be regarded as voluntary

appearance (VA); VA must be UNQUALIFIED by any other reason—
when defendant submits himself as far as the case is concerned [Gen. Garcia
case]
f. Filing a motion for extension of time to file an answer; hence, the
court cannot grant a motion to dismiss (MTD) thereafter.
g. Failure to serve summons will mean that the court failed to acquire
jurisdiction over the person of the defendant. However, the filing of a motion
for new trial or reconsideration is tantamount to voluntary appearance.
De Pedro vs Romasan (2014)
——————————————————————————————
All matters related to Docket Fees

1. Payment of docket fees is needed for the court to acquire JN;
*GR: In Manchester Development Corporation v. CA, a court acquires
jurisdiction only upon payment of the prescribed docket fee.
******XPN: While the payment of prescribed docket fee is a
jurisdictional requirement, even its non-payment at the time of filing does
NOT AUTOMATICALLY cause the dismissal of the case, ***as long as
the fee is paid within the applicable PRESCRIPTIVE or
REGLEMENTARY period, more so when the party involved demonstrates a
willingness to abide by the rules prescribing such payment. Thus, when insufficient
filing fees were initially paid by the plaintiffs and there was NO
INTENTION TO DEFRAUD the government, the Manchester rule does
not apply (Heirs of Bertuldo Hinog v. Melico, G.R. No. 140954, April 12, 2005 citing
Sun Insurance Office, Ltd. v. Asuncion).
2. To determine the amount: look for the true nature of the action!
a. 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.22 It shall be the
22
Q: A complaint filed for recovery of possession of real property also prayed for moral and
exemplary damages the amounts of which have been left to the court’s discretion, and for
actual damages the amount of which shall be proven at the trial. The docket fees for the action
involving the real property have been paid, but not those for the related damages, the amounts of
which have not been specified. (1991 Bar Question)
(a) Did the court acquire Jurisdiction over the action? Yes, because the docket fees for the
action involving the real property have been paid.
responsibility of the Clerk of Court or his duly authorized deputy to

enforce said lien and assess and collect the additional fee (Sun
Insurance Office, Ltd. v. Hon. Maximiano Asuncion, G.R. Nos. 79937-
38, 13 February 1989).
b. Basis of amount of docket fees: In real actions, the docket
and filing fees are based on the BIR zonal value of the property.23
3. Part of the power of SC to promulgate rules under Sec 5(5), Art
VIII 1987 Constitution: Hence, notwithstanding any provision of
substantive law exempting an entity from the payment of docket
fees, SC can still impose the same.
4. When applicable:
a. 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 also allow payment of said fee within
a reasonable time but also in no case beyond its applicable
prescriptive or reglementary period.
b. Rules on appellate DF
*GR: Payment of appeal docket fees is mandatory and
jurisdictional.24 Without such payment, the appellate court does not
(b) May the action be dismissed? No, because the court has acquired jurisdiction over the
action. However, the claim for damages, as to which no amounts were specified may be
expunged, or the plaintiff may be allowed to amend the complaint so as to specify the amount
of damages and to pay the requisite fees within the prescriptive period. (Tacay v. RTC, 180 SCRA
433)
23
In real actions, the docket and filing fees are based on: (2012 BAR)
e. fairmarketvalueoftheproperty.
f. assessed value of the property.
g. BIR zonal value of the property.
h. fairmarketvalueofthepropertyandamountofdamagesclaimed.
Alternative Answer: f. assessed value of the property
24
Payment of APPEAL docket fees is both MANDATORY and JURISDICTIONAL.
Effect of non-payment or partial payment of docket fees on the appeal period: the
running of the prescriptive period not tolled! To situate the whole thing, remember that
there are three requirements in order to perfect an appeal, all of which must be done within
the period allowed for filing an appeal:******
a. the filing of a notice of appeal;
b. the payment of docket and other legal fees; and
c. in some cases, the filing of a record on appeal.
[] Rule 41, Section 4. Appellate court docket and other lawful fees. — Within the period for taking an
appeal, the appellant shall **pay to the clerk of the court which rendered the judgment or final
order appealed from, the full amount of the appellate court docket and other lawful fees. Proof of
payment of said fees shall be transmitted to the appellate court together with the original record or the
record on appeal. (n)
acquire jurisdiction over the subject matter of the action and the
decision sought to be appealed from becomes final and executory
(Regalado v. Go, G.R. No. 167988, February 6, 2007).
*XPNs: (a) *****The failure to pay appellate court docket
fee within the reglementary period allows only discretionary
dismissal, not automatic dismissal, of the appeal; (b) Such power
should be used in the exercise of the court’s sound discretion (Rep.
v. Sps. Luriz, G.R. No. 158992, January 26, 2007).
c. Rule 45, Section 3. Petitioner shall pay the corresponding docket and
other lawful fees to the clerk of court of the Supreme Court and deposit the
amount of P500.00 for costs at the time of the filing of the petition. Proof of
service of a copy, thereof on the lower court concerned and on the adverse
party shall be submitted together with the petition.
5. When not applicable: ******Payment for DF for compulsory
counterclaims was already SUSPENDED, as was clarified by OCA Circular
96-2009, August 13, 2009. Hence, in Alba vs Malapajo (2016): there is no
need for respondents to pay docket fees and to file a certification against
forum shopping for the court to ACQUIRE JURISDICTION over the
said (compulsory) counterclaim.
6. CRIMINAL CASES—Q: Is the rule on the payment of docket fees in
ordinary civil actions the same as that for the claim of damages which are
impliedly instituted in criminal cases? (1991 Bar Question) Answer: No,
because in criminal cases, docket fees are required to be paid only if the
complaint or information filed in Court for trial alleges the amount of
damages other than actual. (Sec. 1 of Rule 111 as amended)
7. Rule on filing fees in civil action deemed instituted with the criminal action
a. Actual damages
i. GR: No filing fee is required.
ii. *****XPN: B.P. 22 cases, wherein the amount of the filing fees
shall be equivalent to the amount of the check involved.
b. Liquidated, moral, nominal, temperate or exemplary damages –
The filing fee shall be based on the amount alleged in the complaint or
*Failure to observe any of these requirements is fatal to one's appeal. Verily, the
payment of APPEAL docket fees is both MANDATORY and JURISDICTIONAL. It is
mandatory as it is required in all appealed cases, otherwise, the Court does not acquire the authority
to hear and decide the appeal. The failure to pay or even the partial payment of the appeal fees
does not toll the running of the prescriptive period, hence, will not prevent the judgment
from becoming final and executory. Indeed, there are instances when the Court relaxed the rule
and allowed the appeal to run its full course. However, in the present case, the NTC failed to
present any justifiable excuse for its failure to pay the docket fees. There was no initiative to
verify the necessity of paying the docket fees nor was there an expression of willingness to
pay. NTC vs Ebesa (2016)
information (Sec. 1(4), Rule 111). NB: *****If the amount of the damages
claimed is not specifically alleged in the complaint or information, but the
court subsequently awards such, the filing fees based on the amount awarded shall
constitute a FIRST LIEN on the judgment (Sec. 1(3), Rule 111).
——————————————————————————————
2.2 JN over the subject matter
2.2 1. Meaning of jurisdiction over the SUBJECT MATTER

1. It is the power to hear and determine cases of the general class to which the
proceedings in question belong (Herrera, 2007). It is the power or authority to
hear and determine cases to which the proceeding in question belongs (Reyes
v. Diaz, 73 Phil 484).
a. GR: Jurisdiction over the subject matter cannot be waived, enlarged
or diminished by stipulation of the parties (Republic v. Estipular, 336 SCRA
333).25
b. XPN: ESTOPPEL BY LACHES:
i. by failure to object to the jurisdiction of the court for a long
period of time and
ii. by invoking its jurisdiction in obtaining affirmative relief (Tijam
v. Sibonghanoy, G.R. No. L-21450, April 15, 1968).
25
Q: In a suit to recover a sum of money, plaintiff filed his complaint with the Regional Trial
Court instead of with the Municipal Trial Court which has jurisdiction over the case because of
the amount involved. The defendant did not file a motion to dismiss. Neither did the Regional
Trial Court dismiss the case on its own initiative. At the pre-trial hearing, defendant tried to have
the case settled. With the effective help of the presiding judge, he was able to forge with the
plaintiff a compromise agreement which stipulated that he would pay in twelve (12) equal
monthly installments starting the first day of the following month, each to become due without
need of any demand. Failure to pay any installment when due will render the entire amount
enforceable by writ of execution. Judgment was rendered on the basis of the compromise
agreement and was then served on the parties. Defendant failed to pay the first installment as it
fell due. Plaintiff thereupon sought execution which was granted, and the corresponding writ
of execution was issued. Defendant filed in due form a motion to set aside the writ of
execution upon the contention that the court had no power to order the issuance of the writ
of execution because it has no jurisdiction over the nature of the action, an issue that can be
raised at any stage of the case. The court granted the defendant’s motion and accordingly set aside
the writ of execution. Did the court act correctly? Why? (1992 Bar Question) Suggested Answer:
Yes, the court acted correctly, because jurisdiction over the subject matter or nature of
an action cannot be conferred by agreement of the parties. Whenever it appears that the court
has no jurisdiction over the subject matter, it shall dismiss the action,
Another Acceptable Answer: Inasmuch as the defendant did not file a motion to dismiss
and the parties submitted a compromise agreement on the basis of which judgment was rendered,
the defendant is estopped to raise the question of jurisdiction. (Tijam vs. Sibonghanoy, 23 SCRA
29 and other cases) [TOM: in Tijam, there is active participation on the part of the defendant plus
laches]
2. Jurisdiction over the subject matter v. Jurisdiction over the person

Jurisdiction Over the Subject Matter Jurisdiction Over the Person
GR: Determined by the allegations of the complaint Acquired by the filing of the
(Riano, 2011). petition in case of the plaintiff or by
XPN: Where the real issues are evident from the arrest (Rule 113), by valid service of
record of the case, jurisdiction over the subject matter cannot be summons or voluntary submission
made to depend on how the parties word or phrase their pleadings to the court’s authority in case of the
(Herrera, 2007). EG in ejectment cases in which the defendant (Ibid.).
defendant averred the defense of the existence of tenancy
relationship between the parties. Tenancy relationship
is not presumed and it is not enough that it is alleged. There
must be evidence to prove that it exists and that all its
elements are established (Salmorin v. Zaldivar, G.R. No.
169691, July 23, 2008).
Conferred by law which may be either the Constitution sometimes made to depend, indirectly
or a statute at least, on the party’s volition
2.2 2. Jurisdiction versus the exercise of jurisdiction

Jurisdiction Exercise of Jurisdiction
The authority to hear and It is any act of the court pursuant to such
decide cases. It does not authority, which includes making decisions.
depend upon the regularity of If there is jurisdiction over the person and
the exercise of that power or upon subject matter, the resolution of all other questions
the rightfulness of the decision arising in the case is but an exercise of
made (Lim v. Pacquing, et al., jurisdiction (Herrera v. Baretto; Palma v.
September 1, 1994). Q&S, Inc., May 16, 1966).
2.2 3. Error of jurisdiction as distinguished from error of judgment

(Bar 1989)26******
Error of Jurisdiction Error of Judgment
One where the court, officer or quasi-judicial body One that the court may commit in the
acts without or in excess of jurisdiction, or exercise of jurisdiction; it includes errors of
with grave abuse of discretion. procedure or mistakes in the court’s findings.
26
Distinguish between error of judgment and error of jurisdiction. (1989 Bar Question) Answer:
An error of judgment is one which the court may commit in the exercise of its
jurisdiction. Such an error does not deprive the court of jurisdiction and is correctible only by
appeal; whereas an error of jurisdiction is one which the court acts without or in excess of its
jurisdiction. Such an error renders an order or judgment void or voidable and is correctible
by the special civil action of certiorari. De la Cruz vs. Moir, 36 Phil. 213; Cochingyan vs.
Cloribel, 76 SCRA 361).
Renders a judgment void or at least Does not make the court’s decision void.
voidable (Sec. 1(a) & (b), Rule 16; Rule 65).
The only exception is when the party raising the issue
is barred by estoppel.
Correctible by certiorari (Rule 65) Correctible by appeal (Henderson, et al. v. Tan,
87 Phil. 466)
There is an exercise of jurisdiction in the The court acted with jurisdiction but committed
absence of jurisdiction. procedural errors in the appreciation of the facts or the
law.
2.2 4. How jurisdiction is conferred and determined

1. It is CONFERRED BY LAW, that is,
a. The Constitution
b. BP 129, otherwise known as “Judiciary Reorganization Act.”
2. It does not depend on the objection or the acts or omissions of the
parties or anyone of them (Republic v. Sangalang, 159 SCRA 515; PNB v.
Florendo, 206 SCRA 582).
3. Instances when jurisdiction over the subject matter cannot be conferred
a. By the administrative policy of any court;
b. A court’s unilateral assumption of jurisdiction;
c. An erroneous belief by the court that it has jurisdiction;
d. By the parties through a stipulation (contract)
e. The agreement of the parties acquired through, or waived, enlarged
or diminished by, any act or omission of the parties;
f. Parties’ silence, acquiescence or consent (Riano, 2011).
4. Determination of jurisdiction over the subject matter: It is determined by the
ALLEGATIONS OF THE COMPLAINT (Baltazar v. Ombudsman, 510
SCRA 74) **regardless of whether or not the plaintiff is entitled to his
claims asserted therein (Gocotano v. Gocotano, 469 SCRA 328).
——————————————
2.2 5. Doctrine of primary jurisdiction (DPJ)

1. DPJ: Courts will not resolve a controversy involving a question which is
within the jurisdiction of an administrative tribunal, especially where the
question demands the exercise of sound administrative discretion requiring the
special knowledge and experience of said tribunal in determining technical
and intricate matters of fact (Villaflor v. CA, G.R. No. 95694, October 9,
1997). It precludes the courts from resolving a controversy over which
jurisdiction has initially been lodged with an ADMINISTRATIVE BODY OF
SPECIAL COMPETENCE.
*EG: in agrarian reform cases, jurisdiction is vested in the Department
of Agrarian Reform; more specifically, in the Department of Agrarian Reform
Adjudication Board (DARAB) (Spouses Jesus Fajardo and Emer Fajardo v.

Anita Flores, G.R. No. 167891, January 15, 2010).
2. Objective of DPJ: to guide a court in determining whether it should
refrain from exercising its jurisdiction **until after an administrative agency has
determined some question or some aspect of some question arising in the
proceeding before the court (Province of Aklan v. Jody King Construction and
Development, G.R. Nos. 197592 & 20262, November 27, 2013, citing Fabia v.
CA, 437 Phil. 389).
3. *****Summary of DJP & DEAR: cases are best decided first by
administrative bodies, whose EXPERTISE pertain to the subject matter of
the case, before they are brought to the court.
2.3.5.a. Doctrine of Exhaustion of Administrative Remedies (DEAR)

1. DEAR: It states that recourse through court action cannot prosper until
after all such administrative remedies have first been exhausted. The
non-observance of the doctrine of exhaustion of administrative remedies
******RESULTS IN LACK OF CAUSE OF ACTION (National
Electrification Administration v. Val L. Villanueva, G.R. No. 168203, March 9,
2010).
2. The rule on exhaustion of administrative remedies and doctrine of primary
jurisdiction *****applies only when the administrative agency EXERCISES
QUASI-JUDICIAL OR ADJUDICATORY FUNCTION (Associate Communications
and Wireless Services v. Dumalao, G.R. No. 136762, November 21, 2002).
3. Rationale of DEAR: The thrust of the rule is that courts must allow
administrative agencies to carry out their functions and discharge their
responsibilities within the specialized areas of their respective COMPETENCE
(Caballes v. Perez-Sison, G.R. No. 131759, March 23, 2004). It entails LESSER
EXPENSES and provides for the SPEEDIER RESOLUTION of controversies.
COMITY AND CONVENIENCE also impel courts of justice to shy away from
a dispute until the system of administrative redress has been completed
(Universal Robina Corporation v. Laguna Lake Authority, G.R. No. 191427,
May 30, 2011).
4. ******EXCEPTIONS to DEAR:
a. When respondent official acted in utter disregard of due process;
b. When the questions involved are purely judicial or a legal one;
c. When the controverted act is patently illegal or was performed
without jurisdiction or in excess of jurisdiction;
d. When there is estoppel on the part of the administrative agency concerned;
e. When its application may cause great and irreparable damage;
f. When the respondent is a Department Secretary, whose acts as an
alter ego of the President bears the implied or assumed approval of the
latter unless actually disapproved by him;

g. When to require administrative remedies would be unreasonable;
h. When the insistence in its observance would result in the
nullification of the claim being asserted;
i. **When the subject matter is a private land in land case
proceedings;
j. When it does not provide a plain, speedy and adequate remedy;
k. Where there are circumstances indicating the URGENCY of judicial
intervention (Paat v. CA, G.R. No. 111107, January 10, 1997);
l. Exhaustion of administrative remedies may also be considered waived
if there is a failure to assert it for an unreasonable length of time (Rep. v.
Sandiganbayan, G.R. Nos. 112708-09, March 29, 1996);
m. ******A civil action for damages may, however, proceed
notwithstanding the pendency of an administrative action (Escuerte v. CA,
G.R. No. L-53485,February 6, 1991);
n. When the claim involved is small;
o. When strong public interest is involved; and
p. *****In QUO WARRANTO proceedings (Castro v. Gloria, G.R.
No. 132174, August 20, 2001).
5. Effect of failure to exhaust administrative remedies: The ****ground
should not be lack of jurisdiction but LACK OF CAUSE OF ACTION as
it renders the action PREMATURE (Carale v. Abarintos, G.R. No. 120704,
March 3, 1997; Pestanas v. Dyogi, 81 SCRA 574).
—————————————————
2.3.5.b. Doctrine of Ancillary Jurisdiction (DAJ) (addded by TOM)

1. Doctrine of Ancillary Jurisdiction: *****involves the inherent or implied
powers of the court to DETERMINE ISSUES INCIDENTAL to the
EXERCISE OF ITS PRIMARY jurisdiction.
*IOW, once the court has acquired JN over the case, it can perform any
act to give meaning/effect to that JN, like issuing necessary orders and
writs; it a sense, it is given enough leeway to exercise its JN.
2. Under its ancillary jurisdiction, a court may
a. DETERMINE ALL QUESTIONS RELATIVE to the matters brought
before it,
b. regulate the manner in which a trial shall be conducted,
c. determine the hours at which the witnesses and lawyers may be heard, and
d. grant an injunction, attachment or garnishment.
*****These are listed under Section 5, Rule 135.27

3. Exercise of DAJ also includes using EQUITY to decide a case, when
there is no applicable law. Equity refers to the natural sense of right and wrong.
EG: the court ruled that Deposit, although not listed as a provisional remedy,
can be considered one [Reyes vs. Lim]. Such ruling was made under the court’s
power of EQUITABLE JURISDICTION.
———————————————-
2.2 6. Doctrine of adherence of JN (DAJ) or Continuity of JN (DCJ)

1. GR: Jurisdiction, once attached, cannot be ousted by subsequent happenings or
events although of a character which would have prevented jurisdiction from
attaching in the first instance, and the court retains jurisdiction until it
finally disposes of the case.
*****In short: once the court acquires JN by virtue of the material
allegations in the complaint, that JN shall remain until the end of the
proceedings.
2. XPNs:
a. Where a subsequent statute EXPRESSLY prohibits the continued
exercise of jurisdiction;
b. Where the law penalizing an act which is punishable is repealed by
a subsequent law;
c. When accused is deprived of his constitutional right such as where
the court fails to provide counsel for the accused who is unable to obtain one and
does not intelligently waive his constitutional right;
d. Where the statute expressly provides, or is construed to the effect
that it is intended to operate as to actions pending before its enactment;
e. When the proceedings in the court acquiring jurisdiction is
terminated, abandoned or declared void;
f. Once appeal has been perfected; and
27
Section 5. Inherent powers of court. — Every court shall have power:
(a) To preserve and enforce order in its immediate presence;
(b) To enforce order in proceedings before it, or before a person or persons empowered to
conduct a judicial investigation under its authority;
(c) To compel obedience to its judgments, orders and processes, and to the lawful orders of a
judge out of court, in a case pending therein;
(d) To control, in furtherance of justice, the conduct of its ministerial officers, and of all other
persons in any manner connected with a case before it, in every manner appertaining thereto;
(e) To compel the attendance of persons to testify in a case pending therein;
(f) To administer or cause to be administered oaths in a case pending therein, and in all other
cases where it may be necessary in the exercise of its powers;
(g) To amend and control its process and orders so as to make them conformable to law and
justice;
(h) To authorize a copy of a lost or destroyed pleading or other paper to be filed and used
instead of the original, and to restore, and supply deficiencies in its records and proceedings.
g. Curative statutes (Herrera, 2007).

h. ******In Tenancy proceedings, which have to be brought to the
DARAB. EG: action for unlawful detainer filed in court, but evidences show
it’s a tenancy issue, the proceeding must be dismissed. But note that even if
tenancy is alleged but it is actually an unlawful detainer case, the court does not lose its
jurisdiction.
3. Effect of retroactivity of laws on jurisdiction: Jurisdiction being a matter of
substantive law, the established rule is that the ******STATUTE IN FORCE AT
THE TIME OF THE COMMENCEMENT of the action determines jurisdiction
(Herrera, 2007).
2.2 7. Objections to jurisdiction over the subject matter

1. GR: The prevailing rule is that jurisdiction over the subject matter may be
raised at ANY STAGE of the proceedings and even for the first time on
appeal (Riano, 2011).
2. XPNs:
a. Estoppel by laches. SC barred a belated objection to jurisdiction
that was raised only after an adverse decision was rendered by the court
against the party raising the issue of jurisdiction and after seeking affirmative
relief from the court and after participating in all stages of the proceedings
(Tijam v. Sibonghanoy, G.R. No. L-21450, April 15, 1968). See more in the
next thought unit.
b. Public policy. One cannot question the jurisdiction which he
invoked, not because the decision is valid and conclusive as an adjudication, but because it
cannot be tolerated by reason of public policy (Filipinas Shell Petroleum
Corp. v. Dumlao, G.R. No. L-44888, February 7, 1992).
c. **A party who invokes the jurisdiction of the court to secure
affirmative relief against his opponents cannot repudiate or question the
same after failing to obtain such relief (Tajonera v. Lamaroza, G.R. Nos. L-
48907 & 49035, January 19, 1982).
3. Under the Omnibus Motion Rule, a motion attacking a pleading like a
motion to dismiss shall include all grounds THEN AVAILABLE and all
objections NOT SO INCLUDED SHALL BE DEEMED WAIVED (Sec. 8, Rule
115). ******Even in the absence of lack of jurisdiction raised in a motion to dismiss, a
party may, when he files an answer, STILL RAISE the lack of jurisdiction as
an affirmative defense because such defense is NOT BARRED under the
omnibus motion rule.
4. **Effect of lack of jurisdiction over the subject matter: When it appears
from the pleadings or evidence on record that the court has no jurisdiction
over the subject matter, the COURT SHALL DISMISS the claim (Sec. 1,
Rule 9).
2.2 8. Effect of estoppel on objections to jurisdiction

1. GR: The JN of the court can be questioned anytime because the lack of
JN renders the proceedings void ab initio; even for the first time on appeal;
even up to the SC.
*Initially, if the court has no JN, file a MTD or an Affirmative Defense
in the Answer to that effect.
2. XPN: PRINCIPLE OF EQUITABLE ESTOPPEL (PEE) or LACHES
[Tijam v. Sibunghanoy 1968]. PEE is applicable only if the factual milieu of
the case is similar to Tijam, i.e., when the complainant ACTIVELY
PARTICIPATED in the proceedings, he can no longer question the very JN
that he embraced, after receiving an adverse decision. Hence, PEE only applies
as a matter of exception. The ACTIVE PARTICIPATION of a party in a
case and SEEKING of AFFIRMATIVE RELIEFS is tantamount to
recognition of that court’s jurisdiction and will bar a party from
impugning the court’s jurisdiction. This only applies to exceptional
circumstances (Francel Realty Corp. v. Sycip, 469 SCRA 424; Concepcion v.
Regalado, G.R. No. 167988, February 6, 2007).
3. ******Note that the Doctrine in Tijam v. Sibonghanoy on estoppel by laches
is NOT the general rule—The ruling in Tijam that a party is estopped from
questioning the jurisdiction applies only to exceptional circumstances.
What is still controlling is that jurisdiction over the subject matter of the
action is a matter of law and may not be conferred by consent or
agreement of the parties (Calimlim v. Ramirez, G.R. No. L-34362,
November 19, 1982).
——————————————————————————————
2.3. JN over the issues

1. The power of the court to try and decide issues raised in the pleadings
of the parties (Reyes v. Diaz, 73 Phil 484) or by their agreement in a pre-
trial order or those tried by the implied consent of the parties (Sec. 5, Rule
10).
2. It may also be conferred by waiver or failure to object to the
presentation of evidence on a matter not raised in the pleadings. The issues
tried shall be treated in all respect as if they had been raised in the pleadings
(Sec. 5, Rule 10).
3. There are **two kinds of issues:
a. Issues/Questions of Fact (QoF).28 EG: WON debtor delivered the
28
In complex crimes, how is the jurisdiction of a court determined? (2003 Bar Question)
SUGGESTED ANSWER: *****In a complex crime, jurisdiction over the whole
money (QoF) or WON the act of delivery constitutes payment (QoL)

b. Issues/Questions of Law (QoL). EG:; WON a sales constitutes a
double sale (QoL) or WON the sale was made (QoF)
4. *****How to determine the issues? look at the PLEADINGS.
a. Issues arise when there is a material allegation, which was specifically
denied by the other party. If there is no specific denial, there is no issue as to
that matter. EG: DD denies that he owes PP 1M.
b. If there is a general denial, that is tantamount to an admission,
hence, there is no issue. There being no triable issue, PP may move for
judgement on the pleadings.
c. Even if there may be no issues by way of material allegation and
specific denial, where else can issues arise?
i. if there are stipulations during Pre-Trial, there can be triable issues;
ii. when there is implied amendment of the pleadings [Rule 10,
Sec 5. EG: issue of ownership is different from issue of possession—if there is
no issue of possession in the pleadings, but during the trial PP adduced
evidence that he is in possession (and the DD did not object as being
irrelevant; hence, there is a waiver), therefore, it is as if the issue of possession
was placed in the pleadings—the court can then base its judgment on that fact.
There is an implied amendment of the pleadings. But to be sure, some lawyers
move to conform the pleadings to the evidence adduced during trial.
——————————————————————————————
2.4 JN over the res or property in litigation

1. How jurisdiction over the res is acquired—It is acquired either by:
a. The seizure of the property under legal process;
b. As a result of the institution of legal proceedings, in which the
power of the court is recognized and made effective (Banco Español Filipino v.
Palanca, 37 Phil. 291);
c. The court by placing the property of thing under its custody
(CUSTODIA LEGIS). EG: attachment of property;
d. The court through statutory authority conferring upon it the power to
deal with the property or thing within the court’s territorial jurisdiction. EG:
Suits involving the status of the parties or suits involving the property in the
Philippines of non-resident defendants (Riano, 2011).
2. For real actions, the ASSESSED VALUE of the real property must be
alleged in the complaint, otherwise, the complaint is vulnerable to
complex crime must be lodged with the trial court having jurisdiction to impose the
maximum and most serious penalty imposable on an offense forming part of the complex
crime. (Cuyos v. Garcia, 160 SCRA 302 [1988]).
DISMISSAL. ******Why? The court cannot take judicial notice of the

assessed value of the real property. Hence, it has to dismiss the case.
3. Note that the probate court cannot make a final determination on the
ownership of the properties in the inventory of properties by the deceased.29
——————————————————————————————
2.5. Jurisdiction of courts
29
Q: A and B are brothers. Their late father, during his lifetime, donated his only real estate
property to B. Thereafter. B sold the property to C who had it titled. C died intestate and was
survived by his son. D. A. claiming that his legitime had been impaired, filed a case for annulment
of donation and sale, cancellation of title and recovery of possession of the property before Branch
85 of the Regional Trial Court. D filed a motion to dismiss the complaint on the ground that there
is a pending intestate estate proceeding before Branch 87 involving the estate of C. his father,
which included the subject real property. A opposed the motion arguing that Branch 85 has
jurisdiction since ownership of the land is involved and the said branch has jurisdiction to resolve
the question of ownership. As Judge of Branch 85 resolve the motion to dismiss. (1996 Bar
Question) Answer:
I would deny the motion because it is Branch 85 of the Regional Trial Court that has
jurisdiction to decide the question of ownership of said property.
1. Applicable laws:
a. BP 129 [Judiciary Reorganisation Act of 1980], as amended by RA 7691.
b. RA 7691 expanded the JN of the first level courts.
2. JN of courts on specific cases:
Boundary RTC as court of general JN (since there is no legal provision specifically governing
dispute between jurisdiction over boundary disputes between a municipality and an independent component city of
municipalities the same province. Municipality of Kananga v. Madrona, April 30, 2003)
Ordinary *****Look at the assessed value (AV) because it's in the nature of an accion
boundary dispute reivindicatoria, not an ejectment case: the dispute is not about possession,
but encroachment.
Expropriation RTC because it is incapable of pecuniary estimation. It does not involve the
recovery of sum of money. Rather, it deals with the exercise by the
government of its authority and right to take property for public use.
Labor dispute LABOR ARBITER (LA) if action for damages for abuse of right as an incident to
dismissal (exclusive JN). ******But LA has no jurisdiction for claims of
damages based on quasi-delict which has no reasonable connection with
the employer-employee relations claims under the Labor Code (Ocheda v.
CA, G.R. No. 85517, October 16, 1992). Hence, REGULAR COURTS if there is no
employer-employee relationship and no issue involved may be resolved by reference to the Labor
Code, other labor statutes or any CBA.(Jaguar Security Investigation Agency v. Sales,
April 22, 2008).
Forcible entry and MTC has exclusive original jurisdiction, **regardless of whether they involve
unlawful detainer questions of ownership: if the question of possession cannot be resolved without deciding
the question of ownership, the issue of ownership shall be resolved only to
determine the issue of possession. Covered by the Rule on Summary
Procedure. Gayoso v. 22 Realty Development Corp July 17, 2006.
Authority to Secretary of Local Government and concurrent with the Ombudsman [RA
conduct 6770] There is nothing in the Local Government Code of 1991 to indicate that it
administrative has repealed, whether expressly or impliedly, the pertinent provisions of the
investigations Ombudsman Act (Hagad v. Dadole, G.R. No. 108072, December 12, 1995).
over local elective [includes authority to impose preventive suspension over elective provincial
officials or city officials]
Public school Generally, the Ombudsman must yield to the Division School
teachers Superintendent in the investigation of administrative charges against public
school teachers (Ombudsman v. Galicia, G.R. No. 167711, October 10, 2008).
Enforcement of a COA has the primary jurisdiction to pass upon the money claim against the
money claim government (or any subdivision thereof as provided for under Sec. 26 of the
against a local Government Auditing Code of the Philippines). Courts may raise the issue of
government unit primary jurisdiction sua sponte and its invocation cannot be waived by the
failure of the parties to argue it as the doctrine exists for the proper distribution of
power between judicial and administrative bodies and not for the convenience of the parties
(Euro-Med v. Batangas, G.R. No. July 17, 2006).
*SUA SPONTE (Latin: "of his, her, its or their own accord") or SUO MOTU
"on its own motion" describes an act of authority taken without formal
prompting from another party. The term is usually applied to actions by a judge taken
without a prior motion or request from the parties.

———————————————
2.5.1. Supreme Court

1. Cases to be decided by SC En Banc
a. All cases involving the constitutionality of a treaty, international or executive
agreement, or law;
b. Cases involving the constitutionality, application or operation of
presidential decrees, proclamations, orders, instructions, ordinances and other regulations;
c. A case where the required number of vote in a division is not obtained;
d. A doctrine or principle laid down in a decision rendered en banc or by
division is modified, or reversed;
c. All other cases required to be heard en banc under the Rules of Court
(Sec. 5, Art. VIII, 1987 Constitution).
2. Some bar areas related to the SC:
a. The Supreme Court en banc is not an appellate court to which decisions
or resolutions of a Division may be appealed.30
b. If the Supreme Court en banc is equally divided in opinion covering an
original action, the case shall be dismissed;31
3. Summary of JN:
Civil Cases Criminal Cases
Excl Petitions for issuance of writs of certiorari, Petitions for issuance of writs of certiorari,
usive
Orig prohibition and mandamus against CA, prohibition and mandamus CA &
inal CTA, Comelec En Banc, Commission on Audit, Sandiganbayan.
Sandiganbayan.
30
After the First Division of the Supreme Court decided a case, the losing party sought a
reconsideration from the Supreme Court en banc. Is the action taken by the said losing party proper?
Explain your answer. (1990 Bar Question) Answer:
No, because the Supreme Court en banc is not an appellate court to which decisions or
resolutions of a Division may be appealed. However, a motion for reconsideration may be
considered by the Supreme Court en banc if three members of the Division are of the opinion
that the same merits the attention of the Court en banc and a majority of the Court en banc decide
to consider it. (Circular No. 2.89, Feb. 7, 1989)
31
If the Supreme Court en banc is equally divided in opinion covering an original action, the case
shall be: (2012 BAR) a. re-raffled to a division. b. original action shall be dismissed. c. The
judgment appealed from shall be official. d. again deliberated upon.
[] A decision or resolution of a division of the Supreme Court when concurred in by
members who actually took part in the deliberation on the issues in a case and voted thereon, is a
decision or resolution of the Supreme Court. (2012 BAR): a. three (3); f. five(S); g. eight(8); h.
ten(10).
App A. Petitions for review on certiorari 1. CA decisions (A.M. No. 00-5-03-SC,

ellat
e against CA, CTA, SB, RTC, in cases September 28, 2004): a. where it
involving: 1. If no question of fact is imposes reclusion perpetua, life imprisonment or a
involved and the case involves: a. lesser penalty, file a notice of appeal; b.
Constitutionality or validity of treaty, Automatic review if death penalty—Where
international or executive agreement, law, the judgment also imposes a lesser penalty,
presidential decree, proclamation, order, the automatic review shall include such lesser
instruction, ordinance or regulation; b. offense; 2. SB decisions (A.M. No. 00-5-03-SC,
Legality of tax, impost, assessments, or toll, October 12, 2004): a. Petition for review on
or penalty in relation thereto; c. Cases in certiorari (Rule 45) if penalty is less than
which jurisdiction of lower court is in issue; death, life imprisonment or reclusion
2. All cases in which only errors or perpetua in criminal cases, and, in civil cases;
questions of law are involved; b. Notice of appeal if it imposes life
B. Special civil action of certiorari: filed imprisonment or reclusion perpetua + lesser
within 30 days against the penalty; c. Automatic review if death penalty is
COMELEC/COA. in the exercise of SB's original jurisdiction; d.
Automatic review if in the exercise of SB's
appellate jurisdiction imposes death, reclusion
perpetua or life imprisonment; 3. Appeals
from RTC in which only errors or questions
of law are involved.
Concurrent
With 1. Petitions for issuance of writs of Petitions for issuance of writs of certiorari,
CA
certiorari, prohibition and mandamus prohibition and mandamus against the RTC
against the following: a. NLRC under the and lower courts.
Labor Code (The petitions must first be
filed with the CA, otherwise, they shall be
dismissed—St. Martin Funeral Homes v.
CA 1998); b. Civil Service Commission; c.
Quasi-judicial agencies (file with the CA
first); d. RTC and lower courts; 2. Petitions
for issuance of writ of Kalikasan (Sec. 3,
Rule 7, A.M. No. 09-6-8-SC).
With 1. Petitions for habeas corpus and quo Petitions for issuance of writs of certiorari,
CA
and warranto; and 2. Petitions for issuance of prohibition and mandamus against the lower
RTC writs of certiorari, prohibition and courts or bodies.
mandamus against the lower courts or
other bodies.
With 1. Petitions for the issuance of writ of Petitions for the issuance of writ of amparo
CA,
SB amparo; 2. Petition for writ of habeas and writ of habeas data
and data, where the action involves public data or
RTC government office.
With *****Actions affecting ambassadors and
RTC
other public ministers and consuls.
With Petitions for mandamus, prohibition,
SB
certiorari, injunctions and ancillary writs in
aid of its appellate jurisdiction including quo
warranto arising or that may arise in cases filed
under EOs. 1, 2, 14 and 14-A
4. Bar areas:
a. SC’s concurrent JN with CA and RTC on
i. petitions for habeas corpus32 and
ii. quo warranto, and
iii. petitions for the issuance of the writs of certiorari, prohibition and
mandamus against the lower courts and other bodies.
b. SC’s concurrent JN with SB,33 CA and RTC on
i. petitions for the issuance of writ of amparo;
ii. petition for writ of habeas data, where the action involves public
data or government office.
ON APPELLATE COURTS IN GENERAL

[] Appellate courts do NOT DISTURB the findings of the trial courts on the
following: as to the credibility of witnesses: the trial court having heard the
witnesses and having had the opportunity to observe closely their deportment and
manner of testifying, unless the trial court had plainly overlooked facts of
substance or value which, if considered, might affect the result of the case. [PP
v. Garcia 1979, etc]. Hence, he who appeals has to prove the latter.
————————————————
32
Q: Roxanne, a widow, filed a petition for habeas corpus with the Court of Appeals against Major
Amor who is allegedly detaining her 18-year-old son Bong without authority of law. After Major
Amor had filed a return alleging the cause of detention of Bong, the Court of Appeals
promulgated a resolution remanding the case to the Regional Trial Court for a full-blown trial
due to the conflicting facts presented by the parties in their pleadings. In directing the remand, the
Court of Appeals relied on Sec. 9(1), in relation to Sec. 21 of BP 129 conferring upon said Court the
authority to try and decide habeas corpus cases concurrently with the Regional Trial Courts.
Did the Court of Appeals act correctly in remanding the petition to the Regional Trial Court? Why?
(1993 Bar Question) Answer:
No. *****Because while the Court of Appeals has original jurisdiction over habeas corpus
concurrent with Regional Trial Courts, it has no authority for remanding to the latter original
actions filed with the former. On the contrary, the Court of Appeals is specifically given the power
to receive evidence and perform any and all acts necessary to resolve factual issues raised in
cases falling within its original jurisdiction. (Sec. 9. second paragraph of B.P. Big. 129, as amended by
E.O. No. 33 s. 1986; Orda vs. Court of Appeals. 192 SCRA 768).
Alternative Answer: Yes, because there is no prohibition in the law against a superior court
referring a case to a lower court having concurrent Jurisdiction. The Supreme Court has referred to the
Court of Appeals or the Regional Trial Court cases falling within their concurrent Jurisdiction.
33
Sandiganbayan exercises concurrent jurisdiction with the Supreme Court and the Court of Appeals
over: (2012 BAR)
a. Petitions for Writ of Certiorari and Prohibition;
b. Petitions for Writ of Habeas Corpus;
c. Petitions for Quo Warranto;
d. Petitions for Writ of Amparo and Habeas Corpus. [TOM: this should have been habeas data;
but among the choices, this is the closest to the ideal answer]
2.5.2. Court of Appeals

1. CA has exclusive original jurisdiction over actions for annulment of judgments
of the RTC [BP 129], hence, do not file it with SC [Estate of Juico v. Republic].
On the other hand, note that RTC has jurisdiction over annulment of judgments
of the MTC [Sec 10, Rule 47].
2. *****CA can act as a trial court, even on cases on appeal to resolve factual
issues,34 but RTC cannot do the same; the RTC can only rely on briefs and
memoranda submitted to it when it exercises its appellate JN—it cannot receive
new evidence and cannot conduct new trials. Instances where the Court of
Appeals may act as a trial court are [Bar 2008]
a. In annulment of judgment under Secs. 5 and 6, Rule 47. Should the CA
find prima facie merit in the petition, the same shall be given due course and
summons shall be served on the respondent, after which trial will follow, where
the procedure in ordinary civil cases shall be observed.
b. When a motion for new trial is granted by the Court of Appeals, the
procedure in the new trial shall be the same as that granted by a Regional Trial
Court (Sec. 4, Rule 53).
c. A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102).
d. In a petition for the writs of amparo and habeas data, a hearing can be
conducted.
e. Under Section 12, Rule 124 of the Rules of Criminal Procedure, the
Court of Appeals has the power to try cases and conduct hearings, receive
evidence and perform any and all acts necessary to resolve factual issues cases
which fall within its original and appellate jurisdiction.
f. The Court of Appeals can grant a new trial based on the ground of
34
Q: Goodfeather Corporation, through its President, Al Pakino, filed with the Regional Trial Court
(RTC) a complaint for specific performance against Robert White. Instead of filing an answer to the
complaint, Robert White filed a motion to dismiss the complaint on the ground of lack of the
appropriate board resolution from the Board of Directors of Good feather Corporation to show the
authority of Al Pakino to represent the corporation and file the complaint in its behalf. The RTC
granted the motion to dismiss and, accordingly it ordered the dismissal of the complaint. Al Pakino
filed a motion for reconsideration which the RTC denied. As nothing more could be done by Al
Pakino before the RTC, he file an appeal before the Court of Appeals (CA). Robert White moved for
dismissal of the appeal in the ground that the same involved purely a question of law and should have
been filed with the Supreme Court (SC). However, Al Pakino claimed that the appeal involved mixed
questions of fact and law because there must be a factual determination if, indeed, Al Pakino was duly
authorized by Goodfeather Corporation to file the complaint. Whose position is correct? Explain.
(2014) Answer:
Al Pakino is correct in claiming that the appeal involved mixed questions of fact and law.
There is a question of law when the doubt or difference arises as to what the law is on a certain state of
facts. On the other hand, there is a question of fact, when the doubt or difference arises as to the truth or
falsehood of alleged facts. (Mirant Philippines Corporation v. Sario, G.R. No. 197598, November 21, 2012).
Since the complaint was dismissed due to the alleged lack of appropriate board resolution from
the Board of Directors of Goodfeather Corporation, the appeal will necessarily involve a factual
determination of the authority to file the Complaint for the said Corporation. Hence, the appeal before
the Court of Appeals is correct.
newly discovered evidence. (Sec. 14, Rule 124).

g. The Court of Appeals, under Section 6, Rule 46, whenever necessary to
resolve factual issues, may conduct hearing thereon or delegate the reception
of the evidence of such issues to any of its members or to an appropriate
agency or office.
3. Summary of JN of CA:
Exclu Actions for annulment of judgments of 1. Actions for annulment of judgments of

sive
Origi RTC based upon extrinsic fraud or lack RTC (Sec. 9, BP 129).
nal of jurisdiction (Sec. 9, BP 129; Rule 47) 2. Crimes of Terrorism under the Human
Security Act of 2007 or
RA 9372
Appel 1. Final judgments, decisions, resolutions, 1. Judgments or decisions of RTC via notice
late
orders, awards of: a. RTC (original of appeal (except those appealable to the SC
jurisdiction or appellate jurisdiction); b. or SB): a. Exercising its original or appellate
Family Courts; c. RTC on the questions of JN; b. Where the imposable penalty is life
constitutionality, validity of tax, jurisdiction imprisonment or reclusion perpetua or a lesser
involving questions of fact; d. Appeals from penalty for offenses committed on the same
RTC in cases appealed from MTCs occasion or which arose from the same
which are not a matter of right; occurrence;
2. Appeal from MTC in the exercise of its 2. Automatic review in cases of death
delegated jurisdiction (RA 7691); penalty rendered by the RTC, in which case, it
3. Appeals from Civil Service Commission; may decide on whether or not to affirm the
4. Appeals from quasi-judicial agencies penalty of death. If it affirms the penalty of
under Rule 43; death, it will render a decision but will not
5. Appeals from the National Commission enter the judgment because it will then be
on Indigenous Peoples (NCIP); and forwarded to the SC.
6. Appeals from the Office of the *NB: Death penalty imposed by the RTC is
Ombudsman in administrative elevated to the CA by automatic review while
disciplinary cases (Arce v. Office of the death penalty imposed by the SB
Ombudsman 2002). (original/appellate) is elevated to the SC for
automatic review.
Concurrent
With cf. SC’s table. Also With SC, SB, and RTC cf. SC’s table. Also, With SC and RTC
SC
2.5.3. Court of Tax Appeals35

Tax Cases Criminal Cases
Exclusive Original In tax collection cases involving final All criminal cases arising from
and executory assessments for taxes, violation of the NIRC of the TCC
fees, charges and penalties where the and other laws, part of laws, or
principal amount of taxes and fees, special laws administered by the BIR
exclusive of charges and penalties or the BOC where the principal
claimed is not less than Php 1M. amount of taxes and fees, exclusive
of charges and penalties claimed is
less that Php 1M or where there is no
specified amount claimed (the
offenses or penalties shall be tried by
the regular courts and the
jurisdiction of the CTA shall be
appellate).
Appellate In tax collection cases involving final 1. Over appeals from the
and executory assessments for taxes, judgment, resolutions or orders
fees, charges and penalties where the of the RTC in tax cases
principal amount of taxes and fees, originally decided by them, in
exclusive of charges and penalties their respective territorial
claimed is less than Php 1M tried by jurisdiction.
the proper MTC, MeTC and RTC. 2. Over petitions for review of the
judgments, resolutions or
orders of the RTC in the
exercise of their appellate
jurisdiction over tax cases
originally decided by the
MeTCs, MTCs, and MCTCs in
their respective jurisdiction.
Exclusive appellate jurisdiction to review by appeal (Sec. 7, RA 9282)
35
Q: Mark filed with, the Bureau of Internal Revenue a complaint for refund of taxes paid, but it was
not acted upon. So, he filed a similar, complaint with the Court of Tax Appeals raffled to one of its
Divisions. Mark’s complaint was dismissed. Thus, he filed with the Court of Appeals a petition for
certiorari under Rule 65. Does the Court of Appeals have jurisdiction over Mark’s petition? 2.5% (2006
Bar Question) SUGGESTED ANSWER:
No. A decision of a Division of the Court of Tax Appeals (CTA) is appealable within 15
days to the CTA en banc [Sec. 18, Rep. Act No. 9282, as amended]. On the other hand, a party
adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a
verified petition for review on certiorari pursuant to Rule 45 of the 1997 Rules of Civil Procedure
[Sec. 19, Rep. Act No. 9282, as amended].
Rep. Act No. 9282 expanded the jurisdiction of the Court of Tax Appeals and elevated
the same to the level of a collegiate court equivalent to the rank of the Court of Appeals. Hence, the
Court of Appeals no longer has jurisdiction to review decisions of the Court of Tax Appeals en
banc.
Tax Cases Criminal Cases
From Commissioner of 1. Decisions in cases involving disputed assessments, refunds of internal

Internal Revenue
revenue taxes, fees or other charges, penalties in relation thereto, or
other matters arising under the NIRC or other laws administered by
BIR;
2. Inaction by CIR in cases involving disputed assessments, refunds of IR
taxes, fees or other charges, penalties in relation thereto, or other
matters arising under the NIRC or other laws administered by BIR,
where the NIRC or other applicable law provides a specific period of
action, in which case the inaction shall be deemed an implied denial via
petition for review under Rule 42.
From RTC Decisions, orders or resolutions of the in local taxes originally decided or
resolved by them in the exercise of their original or appellate jurisdiction via
petition for review under Rule 43.
From Commissioner of 1. Decisions in cases involving liability for customs duties, fees or other
Customs
charges, seizure, detention or release of property affected, fines,
forfeitures or other penalties in relation thereto; or
2. Other matters arising under the Customs law or other laws, part of laws
or special laws administered by BOC; (via petition for review under
Rule 42).
From Central Board of Decisions in the exercise of its appellate jurisdiction over cases involving
Assessment Appeals
the assessment and taxation of real property originally decided by the
provincial or city board of assessment appeals via petition for review under
Rule 43.
From Secretary of Finance Decision on customs cases elevated to him automatically for review from
decisions of the Commissioner of Customs which are adverse to the
government under Sec. 2315 of the TCC via petition for review under Rule
42.
From Secretary of Trade Decisions of Secretary of Trade and Industry in the case of non-agricultural
and Industry and the
Secretary of Agriculture product, commodity or article, and the Secretary of Agriculture in the case
of agricultural product, commodity or article, involving dumping duties and
counterveiling duties under Secs. 301 and 302, respectively, of the TCC, and
safeguard measures under RA 8800, where either party may appeal the
decision to impose or not to impose said duties (via petition for review
under Rule 42).
2.5.4. Sandiganbayan*****
Excl Cases involving violations of: a. Violations of Republic Act No. 3019 [Anti-graft and
usive
Orig a. EO 1 (Creating the PCGG); Corrupt Practices Act], RA 1379 (forfeiture of wealth
inal b. EO 2 (Illegal Acquisition and illegally taken with respect to a public office), and
Misappropriations of Chapter II, Section 2, Title VII, Book II RPC [210-212:
Ferdinand Marcos, Imelda Direct Bribery, Indirect Bribery, Corruption of
Marcos their close relatives, Public Officials], where one or more of the accused
subordinates, business are officials occupying the following positions in the
associates, dummies, agents or government whether in a permanent, acting or
nominees); interim capacity, at the time of the commission of
c. EO 14 (Cases involving the ill- the offense: (Include Plunder Law)
gotten wealth of the (1) Officials of the executive branch occupying the
immediately mentioned positions of regional director and higher, otherwise
persons (Marcos and classified as Grade '27' and higher, of the
dummies)); and Compensation and Position Classification Act of 1989
d. EO 14-A (amendments to EO (Republic Act No. 6758), specifically including: (a)
14) (Sec. 2, RA 7975, as amended by Provincial governors, vice-governors, members of the
RA 8294). sangguniang panlalawigan and provincial treasurers,
assessors, engineers and other provincial
department heads; (b) City mayors, vice-mayors,
members of the sangguniang panlungsod, city
treasurers, assessors, engineers and other city
department heads; (c) Officials of the diplomatic
service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank; (e) Officers of
the Philippine National Police while occupying the
position of provincial director and those holding the
rank of senior superintendent or higher; (f) City and
provincial prosecutors and their assistants, and
officials and prosecutors in the Office of the
Ombudsman and special prosecutor; (g) Presidents,
directors or trustees, or managers of GOCCs, state
universities or educational institutions or
foundations; (2) Members of Congress and officials
thereof classified as Grade’27’; (3) Members of the
judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions of the
Constitution; and (5) All other national and local
officials classified as Grade’27' and higher
b. Other offenses or felonies whether simple or
complexed with other crimes committed by the
public officials and employees mentioned in subsection
a of this section in relation to their office.
*****Whatever offense (say AoL) as long as it is
alleged that it was committed irt his office
c. Civil and criminal cases filed pursuant to and in
connection with Executive Order Nos. 1, 2, 14 and 14-
A, issued in 1986. [Sec 4 RA 8249]
App Appeals from final judgments, resolutions or orders of

ellat
e the RTC, whether in the exercise of their original or
appellate jurisdiction, in cases involving public
officials or employees not otherwise mentioned in the
preceding enumeration.
Concurrent
With Petitions for certiorari, prohibition, Petitions for certiorari, prohibition, mandamus,
SC
mandamus, habeas corpus, injunction habeas corpus, injunction and other ancillary writs
and other ancillary writs in aid of its in aid of its appellate jurisdiction, including quo warranto
appellate jurisdiction, including quo arising in cases falling under EOs. 1, 2, 14 and 14-A.
warranto arising in cases falling
under Executive Order Nos. 1, 2,
14 and 14-A.
With Petitions for the issuance of writ of Petitions for the issuance of writ of amparo and writ
SC,
CA amparo and writ of habeas data. of habeas data.
and
RTC
Bar areas:
1. SB can entertain a quo warranto petition on in aid of its appellate JN.36
2. SB does not have original JN over habeas corpus cases—it may only grant such
in aid of its appellate JN.37 It only has concurrent JN with SC, CA and RTC over
amparo and habeas data cases.
3. Upon the filing of the information at the SB, suspension is MANDATORY,
although NOT AUTOMATIC.38 It is mandatory after the determination of the
36
The Sandiganbayan can entertain a quo warranto petition only in: (2012 BAR)
e. casesinvolvingpublicofficerswithsalarygrade27orhigher.
f. only in aid of its appellate jurisdiction.
g. asaprovisionalremedy.
h. casesinvolving"illgottenwealth".
37
TRUE or FALSE. In the exercise of its original jurisdiction, the Sandiganbayan may grant petitions
for the issuance of a writ of habeas corpus. (2009 Bar Question) SUGGESTED ANSWER:
FALSE. The Sandiganbayan may grant petitions for Habeas corpus only in aid of its
appellate jurisdiction (RA 7975, as amended by RA 8249), not in the exercise of “original”
jurisdiction.
38
[] Bar 2001: Governor Charles of Tarlac was charged with indirect bribery before the Sandiganbayan
for accepting a car in exchange for the award of a series of contracts for medical supplies. The
Sandiganbayan, after going over the information, found the same to be valid and ordered the
suspension of Charles. The latter contested the suspension claiming that under the law (Sec. 13, RA
3019), his suspension is not automatic upon the filing of the information and his suspension under Sec.
13, RA 3019 is in conflict with Sec. 5 of the Decentralization Act of 1967 (RA 5185). The
Sandiganbayan overruled Charles’ contention stating that the suspension under the circumstances is
mandatory. Is the court's ruling correct?
YES. Charles’ ******suspension is MANDATORY, although NOT AUTOMATIC. It is
mandatory after the determination of the validity of the information in a pre-suspension
hearing. The purpose of the suspension is to prevent the accused public officer from frustrating
validity of the information in a pre-suspension hearing.39 The purpose of the

suspension is to prevent the accused public officer from frustrating or
hampering his prosecution by intimidating or influencing witnesses or tampering with
evidence or from committing further acts of malfeasance while in office.
4. The requirement that before a private person may be indicted for violation
of R.A. 3019: he must be alleged to have acted in conspiracy with a public
officer. The law does not require that such person must, in all instances, be
indicated together with the public officer. It is not necessary to join all alleged co-
conspirators in an indictment for conspiracy.40
or hampering his prosecution by intimidating or influencing witnesses or tampering with evidence or from
committing further acts of malfeasance while in office.
39
Q: X, an undersecretary of DENR, was charged before the Sandiganbayan for malversation of
public funds allegedly committed when he was still the Mayor of a town in Rizal. After
arraignment, the prosecution moved that X be preventively suspended. X opposed the motion
arguing that he was now occupying a position different from that which the Information charged
him and therefore, there is no more possibility that he can intimidate witnesses and hamper the
prosecution. Decide. Suppose X files a Motion to Quash challenging the validity of the
Information and the Sandiganbayan denies the same, will there still be a need to conduct a pre-
suspension hearing? Explain. (2012 BAR)
A: There is no necessity for the court to conduct pre-suspension hearing. Under Section
13 of RA No. 3019, an incumbent public officer against whom any criminal prosecution under a valid
information for graft-related crime such as malversation is pending in court, shall be suspended from
office. ******The word “office”, from which the public officer charged shall be preventively
suspended, could apply to any office, which he might currently be holding and not necessarily the
particular office under which he was charged. Thus, the DENR undersecretary can be preventively
suspended even though he was a mayor, when he allegedly committed malversation.
Settled is the rule that where the accused files a motion to quash the information or
challenges the validity thereof, a show-cause order of the trial court would no longer be
necessary. *****What is indispensable is that the trial court duly hear the parties at a hearing
held for determining the validity of the information, and thereafter hand down its ruling, issuing the
corresponding order of suspension should it uphold the validity of the information (Luciano v. Mariano, G.R.
No. L-32950, July 30, 1971). Since a pre-suspension hearing is basically a due process
requirement, when an accused public official is given an adequate opportunity to be heard on his
possible defenses against the mandatory suspension under R.A. No. 3019, then an accused would
have no reason to complain that no actual hearing was conducted (Miguel v. The Honorable
Sandiganbayan, G.R. No. 172035, July 04, 2012).
In the facts given, the DENR Undersecretary was already given opportunity to question
the validity of the Information for malversation by filing a motion to quash, and yet, the
Sandiganbayan sustained its validity. There is no necessity for the court to conduct pre-suspension
hearing to determine for the second time the validity of the information for purpose of
preventively suspending the accused.
40
Q: The Ombudsman, after conducting the requisite preliminary investigation, found probable cause
to charge Gov. Matigas in conspiracy with Carpinter, a private individual, for violating Section 3(e) of
Republic Act (RA) No. 3019 (Anti- Graft and Corrupt Practices Act, as amended). Before the
information could be filed with the Sandiganbayan, Gov. Matigas was killed in an ambush. This,
notwithstanding, an information was filed against Gov. Matigas and Carpintero. At the Sandiganbayan,
Carpintero through counsel, filed a Motion to Quash the information, on the ground of lack of
jurisdiction of the Sandiganbayan, arguing that with the death of Gov. Matigas, there is no public
officer charged in the information. Is the Motion to Quash legally tenable? (2014)
5. The case against public officers, even if their SG is below 27, is cognizable by
the SB, whatever be the crime, as long as it is alleged that it was committed in
relation to his office. It will just be with the trial court if he just took advantage
of his office.41
——————————————-
2.5.5. Regional Trial Courts

1. All cases not within the jurisdiction of any court are cognizable by the RTC as a
court of general JN
2. TEST to determine whether an action is capable of pecuniary
estimation—The criterion is the NATURE OF THE PRINCIPAL ACTION
or the REMEDY sought.
a. If it is primarily for the recovery of a sum of money, the claim is considered
capable of pecuniary estimation, and whether jurisdiction is in the MTCs or in the
RTCs would depend on the amount of the claim.
b. However, where the basic issue is something other than the right to
recover a sum of money, where the money claim is purely incidental to, or a
consequence of the principal relief sought like specific performance suits
and in actions for support, or for annulment of a judgment or foreclosure of
mortgage, such actions are incapable of pecuniary estimation, and are cognizable
exclusively by the RTCs (Barangay Piapi v. Talip, G.R. No. 138248, September 7,
2005).
3. MATTERS INCAPABLE OF PECUNIARY ESTIMATION (PE): see under
actions, infra****
A: NO. The Motion to quash is not legally tenable. While it is true that by reason of the death
of Gov. Matigas, there is no longer any public officer with whom he can be charge for violation of
R.A. 3019, it does not mean, however, that the allegation of conspiracy between them can no longer be
proved or that their alleged conspiracy is already expunged. The only thing extinguished by the death
of Gov. Matigas is his criminal liability. His death did not extinguish the crime nor did it remove the
basis of the charge of conspiracy between him and Carpintero. The requirement before a private
person may be indicated for violation of Section 3(g) of R.A. 3019, among others, is that such private
person must be alleged to have acted in conspiracy with a public officer. The law, however, does not
require that such person must, in all instances, be indicated together with the public officer. Indeed, it
is not necessary to join all alleged co-conspirators in an indictment for conspiracy (People of the
Philippines v. Henry T. Go, G.R. No. 168539, March 25, 2014).
41
The information charges PNP Chief Luis Santos, (Salary Grade 28), with "taking advantage of his
public position as PNP Head by feloniously shooting JOSE ONA, inflicting on the latter mortal
wounds which caused his death." Based solely on this allegation, which court has jurisdiction over the
case? (2011 BAR)
(A) Sandiganbayan only
(B) Sandiganbayan or Regional Trial Court
(C) Sandiganbayan or Court Martial
(D) Regional Trial Court only
4. Intra-corporate42 controversies that are within the jurisdiction of the RTC:

a. Devices or schemes employed by, or any act of, the board of directors,
business associates, officers or partners, amounting to fraud or misrepresentation
which may be detrimental to the interest of the public and/or of the stockholders,
partners, or members of any corporation, partnership, or association;
b. Controversies arising out of intra-corporate, partnership, or association
relations, between and among stockholders, members, or associates; and between,
any or all of them and the corporation, partnership, or association of which they
are stockholders, members, or associates, respectively;
c. Controversies in the election or appointment of directors, trustees,
officers, or managers of corporations, partnerships, or associations;
d. Derivative suits; and
e. Inspection of corporate book (Rule 1, IRR of RA 8799).
5. Summary of RTC JN43:
42
******In determining whether a dispute constitutes an intra-corporate controversy, the Court uses
two tests, namely, the relationship test and the nature of the controversy test.
An intra-corporate controversy is one which pertains to any of the following relationships: (1)
between the corporation, partnership or association and the public; (2) between the corporation,
partnership or association and the State insofar as its franchise, permit or license to operate is
concerned; (3) between the corporation, partnership or association and its stockholders, partners,
members or officers; and (4) among the stockholders, partners or associates themselves. Thus,
under the relationship test, the existence of any of the above intra-corporate relations makes the case
intra-corporate.
***Under the nature of the controversy test, “the controversy must not only be rooted in the
existence of an intra-corporate relationship, but must as well pertain to the enforcement of the
parties’ correlative rights and obligations under the Corporation Code and the internal and intra-
corporate regulatory rules of the corporation.” In other words, jurisdiction should be determined
by considering both the relationship of the parties as well as the nature of the question involved.
Applying the two tests, we find and so hold that the case involves intra-corporate controversy.
It obviously arose from the intra-corporate relations between the parties, and the questions involved
pertain to their rights and obligations under the Corporation Code and matters relating to the
regulation of the corporation. [Medical Plaza Makati Condo vs. Robert Cullen 2013]
43
BAR 2016: Q: State at least five (5) civil cases that fall under the exclusive original jurisdiction of the
Regional Trial Courts (RTCs).
Exclusi 1. Actions in which the subject of 1. Criminal cases not within exclusive
ve
Origina litigation is incapable of pecuniary jurisdiction of any court, tribunal or body
l estimation; (Sec. 20, BP 129): a) Includes criminal cases
2. Actions involving title to or where the penalty provided by law exceeds 6
possession of real property or any years imprisonment irrespective of the
interest therein where the assessed fine (RA 7691); 2. Includes criminal cases not
value exceeds Php 20,000 or Php falling within the exclusive original
50,000 in Metro Manila, except jurisdiction of the Sandiganbayan where
forcible entry and unlawful the imposable penalty is imprisonment more
detainer; than 6 years and none of the accused is
3. Actions in admiralty and maritime occupying positions classified as “Grade
jurisdiction where demand or 27” and higher (Sec. 4, P.D. 1606, as amended
claim exceeds Php 300,000 or Php by RA 8249); 3. Cases where the only penalty
400,000 in Metro Manila; provided by law is a fine exceeding Php
4. Matters of probate, testate or 4,000; 4. Other laws which specifically lodge
intestate, where gross value of jurisdiction in the RTC: a) Law on written
estate exceeds Php 300,000 or Php defamation or libel; b) Decree on
400,000 in Metro Manila; Intellectual Property; c) Violations of
5. Cases not within the exclusive Dangerous Drugs Act regardless of the imposable
jurisdiction of any court, tribunal, penalty except when the offender is under 16 and there
person or body exercising judicial are Juvenile and Domestic Relations Court in the
or quasi-judicial function; province; d) Cases falling under the Family
6. Civil actions and special Courts in areas where there are no Family Courts
proceedings falling within (Sec. 24, BP 129); e) ****Election offenses
exclusive original jurisdiction of (Omnibus Election Code) even if committed
Juvenile and Domestic Relations by an official with salary grade of 27 or
Court and Court of Agrarian higher.
Reforms;
7. Other cases where the demand,
exclusive of interest, damages,
attorney’s fees, litigation expenses
and costs, or value of property in
controversy exceeds P300,000 or
Php 400,000 in Metro Manila (Sec.
19, BP 129 as amended by RA 7691);
and
8. Intra-corporate controversies
under Sec. 5.2 of the Securities
and Regulation Code.
Concurrent Jurisdiction
With 1. Writ of amparo; Petitions for the issuance of writs of amparo and
SC, SB
and CA 2. Writ of habeas data. habeas data
With Actions affecting ambassadors and other
SC
public ministers and consuls (Sec. 21(2), BP
129).
With 1. Certiorari, prohibition and mandamus
SC and
CA against lower courts and bodies;
2. Habeas corpus and quo warranto;
With Cases involving enforcement or violations

MTC
of environmental and other related laws,
rules and regulations (Sec. 2, Rule 1, A.M.
No. 09-6-8-SC).
Special SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban land reform cases not falling within the
jurisdiction of any quasi-judicial body and other special cases in the interest of justice (Sec.
23, BP 129).44
Appella GR: All cases decided by lower courts in their respective territorial jurisdictions.
te
XPN: Decisions of lower courts in the exercise of delegated jurisdiction.
2.5.6. Family Courts

44
BAR 2017: Q: Santa filed against Era in the RTC of Quezon City an action for specific performance
praying for the delivery of a parcel of land subject of their contract of sale. Unknown to the parties,
the case was inadvertently raffled to an RTC designated as a special commercial court. Later,
the RTC rendered judgment adverse to Era, who, upon realizing that the trial court was not a regular
RTC, approaches you and wants you to file a petition to have the judgment annulled for lack of
jurisdiction. What advice would you give to Era? Explain your answer. SUGGESTED ANSWER:
The advice I would give to Era is that the petition for annulment of judgment on lack of jurisdiction
will not prosper. The Supreme Court has held that a special commercial court is still a court of
general jurisdiction and can hear and try a non-commercial case. [Concorde Condominium Inc.
v. Baculio, 17 Feb 2016, Peralta, J.]. Hence the special commercial court had jurisdiction to try and
decide the action for specific performance and to render a judgment therein.
Exclusive 1. Petitions for guardianship, custody 1. Where one or more of the accused is/are
Original
of children, habeas corpus in below 18 years of age but not less than 9
relation to minor; years of age; 2. When one or more of the
2. Petitions for adoption of children victims is a minor at the time of the
and its revocation; commission of the offense (RA 8369, Act
3. Complaints for annulment and Establishing the Family Courts); 3. Cases
declaration of nullity of marriage against minors cognizable under the
and those relating to marital status Dangerous Drugs Act, as amended; 4.
and property relations of spouses or Violations of RA 7610 or the Special
those living together under Protection of Children Against Child Abuse,
different status and agreements; Exploitation and Discrimination Act, as
and petitions for dissolution of amended by RA 7658; and 5) Cases of
conjugal partnership of gains; domestic violence against: a) Women –
4. Petitions for support and/or involving acts of gender-based violence that
acknowledgment; result, or likely to result in physical, sexual or
5. Summary judicial proceedings psychological harm or suffering to women; and
under the Family Code of the other forms of physical abuse such as battering
Philippines; or threats and coercion which violate a
6. Petitions for declaration of status of woman’s personhood, integrity and freedom of
children as abandoned, dependent movement; b) Children – which include the
or neglected children, petitions for commission of all forms of abuse, neglect,
voluntary or involuntary cruelty, exploitation, violence and
commitment of children, the discrimination and all other conditions
suspension, termination, or prejudicial to their development (Sec. 5, RA
restoration of parental authority 8369).
and other cases cognizable under
PD 603, EO 56 (Series of 1986) and
other related laws; and
7. Petitions for the constitution of the
family home (rendered unnecessary
by Art. 153, Family Code) (Sec. 5,
RA 8369).
*******Bar areas: 1. when minors45 are involved, file the case before Family
Courts; 2. Family Courts have authority and jurisdiction to resolve the
constitutionality of a statute;46 3. The records of child and family cases in the
45
Cesar, age 16, a habitual offender, was caught in possession of .001 grams of marijuana. He was
charged for violation of Sec. 16 of R.A. 9165, The Comprehensive Dangerous Drugs Law. The court
which has jurisdiction is: (2012 BAR) a. theMTC; b. theRTC;c. Special Drugs Court; d. FamilyCourt.
46
Q: Juliet invoking the provisions of the Rule on Violence Against Women and their Children filed
with the RTC designated as a Family Court a petition for issuance of a Temporary Protection
Order (TPO) against her husband, Romeo. The Family Court issued a 30-day TPO against Romeo. A
day before the expiration of the TPO, Juliet filed a motion for extension. Romeo in his opposition
raised, among others, the constitutionality of R.A. No. 9262 (The VAWC Law) arguing that the
law authorizing the issuance of a TPO violates the equal protection and due process clauses of the
1987 Constitution. The Family Court judge, in granting the motion for extension of the TPO,
declined to rule on the constitutionality of R.A. No. 9262. The Family Court judge reasoned that
Family Courts are without jurisdiction to pass upon constitutional issues, being a special court of
limited jurisdiction and R.A. No. 8369, the law creating the Family Courts, does not provide for such
Family Courts shall be dealt with utmost confidentiality—they shall not be

divulged unless necessary and with authority of the judge.47
2.5.7. Metropolitan Trial Courts/Municipal Trial Courts

1. The term "Municipal Trial Courts” (MTC) as used in these Rules shall include
[s2r5]:
a. Metropolitan Trial Courts (MeTC);
b. Municipal Trial Courts in Cities (MTCC);
c. Municipal Trial Courts (MTC), and
d. Municipal Circuit Trial Courts (MCTC).
2. The procedure in the MTCs [s1r5] shall be the same48 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.
3. Under MTC’S EXCLUSIVE & ORIGINAL JN are:
a. EJECTMENT SUITS. *****Thus, although a complaint bears the
caption “recovery of possession,” if its allegations contain the jurisdictional
facts for an unlawful detainer case it will be treated as one for unlawful
detainer notwithstanding the said caption. Under RA 7691, an action for
unlawful detainer is within the MTC’s exclusive jurisdiction regardless of
jurisdiction. Is the Family Court judge correct when he declined to resolve the constitutionality of R.A.
No. 9262? (2015)
A: NO, the Family Court Judge is not correct when it declined to resolve the constitutionality
of R.A. No. 9262. In Garcia v. Hon. Rey Allan Drilon, G.R. No. 179267, June 25, 2013, the Supreme
Court held that the “Family Courts have authority and jurisdiction to resolve the constitutionality of a
statute. In spite of its designation as a family court, the RTC remains to possess the authority
as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency. This
authority is embraced in the general definition of judicial power to determine the valid and
binding laws in conformity with the fundamental law.”
47
Bar 2011: How should the records of child and family cases in the Family Courts or Regional Trial
Court designated by the Supreme Court to handle Family Court cases be treated and dealt with? (3%)
SUGGESTED ANSWER: The records of child and family cases in the Family Courts or
Regional Trial Court designated by the Supreme Court to handle Family Court cases shall be dealt with
utmost confidentiality. (Sec. 12, Family Courts Act of 1997) shall not be divulged unless necessary and
with authority of the judge. (Id.)
48
Are the rules on summons under Rule 14 of the Rules of Court applicable equally in actions before
the Regional Trial Courts as well as in the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts? Answer:
Yes, because the procedure to be observed in the Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Court is the same as that observed in the Regional Trial
Courts, and Rule 5 which conveyed procedure in inferior courts including summons, was repealed.
(Sec. 8 of Interim Rules).
the property’s assessed value.49 NB: the rules allow provisional determination
of ownership by the MTC in ejectment cases when the defendant raises the
defense of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership (Sec. 16, Rule 70).50
b. Under jurisdictional amounts, infra: up to 300K outside MM or 400K
within MM.
4. *****Can MTC’s handle Spec Pro cases? YES.
a. Probate cases whose JN’l amounts fall within its ambit;
b. Habeas corpus proceedings when there is no RTC judge in the locality.
5. Can MTCs handle land registration and cadastral cases? YES. Under the
******doctrine of DELEGATED JURISDICTION, where:
49
In the present case, however, the complaint clearly contained the elements of an unlawful detainer
case. Therefore, the case should have been filed with the MTC, and the RTC had no jurisdiction over
the case. Erorita vs Dumlao (2016)
50
Q: Estrella was the registered owner of a huge parcel of land located in a remote part of their barrio
in Benguet. However, when she visited the property after she took a long vacation abroad, she was
surprised to see that her childhood friend, John, had established a vacation house on her
property. Both Estrella and John were residents of the same barangay. To recover possession,
Estrella filed a complaint for ejectment with the Municipal Trial Court (MTC), alleging that she is the
true owner of the land as evidenced by her certificate of title and tax declaration which showed the
assessed value of the property as P21,000.00. On the other hand, John refuted Estrella’s claim of
ownership and submitted in evidence a Deed of Absolute Sale between him and Estrella. After the
filing of John’s answer, the MTC observed that the real issue was one of ownership and not of
possession. Hence, the MTC dismissed the complaint for lack of jurisdiction. On appeal by
Estrella to the Regional Trial Court (RTC), a full-blown trial was conducted as if the case was
originally filed with it. The RTC reasoned that based on the assessed value of the property, it was the
court of proper jurisdiction. Eventually, the RTC rendered a judgment declaring John as the
owner of the land and, hence, entitled to the possession thereof. (2014)
a. Was the MTC correct in dismissing the complaint for lack of jurisdiction? Why or why not?
A: NO. The Metropolitan Trial Court was not correct in dismissing the Complaint for lack of
jurisdiction. ******It is well settled that jurisdiction is determined by the allegations contained in
the complaint. The contention of defendant in his Motion to Dismiss has nothing to do in
[with] the determination of jurisdiction. Otherwise, jurisdiction would become dependent
almost entirely upon the whims of the defendant (Medical Plaza Makati Condominium v. Cullen,
G.R. No. 181416, November 11, 2013). Relative thereto, the Municipal Trial Courts have exclusive
original jurisdiction over cases of forcible entry and unlawful detainer (Section 33, B.P. 129).
Hence, the Metropolitan Trial Court is not correct in dismissing the complaint for lack of jurisdiction.
Besides, the rules allow provisional determination of ownership in ejectment cases when the
defendant raises the defense of ownership in his pleadings and the question of possession cannot be
resolved without deciding the issue of ownership (Sec. 16, Rule 70). Accordingly, the inferior courts
have jurisdiction to resolve questions of ownership whenever it is necessary to decide the question of
possession in an ejectment case. (Serreno v. Spouses Gutierrez, G.R. No. 162366, November 10,
2006).
b. Was the RTC correct in ruling that based on the assessed value of the property, the case
was within its original jurisdiction and, hence, it may conduct a full-blown trial of the appealed case as
if it was originally filed with it? Why or why not? A: NO. *****It is settled that forcible entry and
unlawful detainer cases are within the exclusive original jurisdiction of the MTC. Moreover, all
cases decided by the MTC are generally appealable to the RTC irrespective of the amounts involved
(Sec. 22, B.P. 129).
a. land is not contested: amount/value of the land does not matter.

b. if land is contested, the value of the land must not be more than 100K
*****Note that the MTC here is asking as an RTC, hence, its decisions are
appealable51 to the CA.52
6. Can MTCs handle real actions? YES.
a. There are only two real actions which are surely within MTC: ejectment
cases (unlawful detainer & forcible entry), where rental in arrears does not
count—it’s the NATURE of the action (but note the allegations in the complaint
to make sure it’s really an ejectment suit).
b. The following, depending on the assessed value of the property
(before, they all fall under RTC):
51
Q: On July 15,2009, Atty. Manananggol was served copies of numerous unfavorable judgments and
orders. On July 29, 2009, he filed motions for reconsideration which were denied. He received the
notices of denial of the motions for reconsideration on October 2,2009, a Friday. He immediately
informed his clients who, in turn, uniformly instructed him to appeal. How, when and where should he
pursue the appropriate remedy for each of the following: (10%)
[a] Judgment of a Municipal Trial Court (MTC) pursuant to its delegated jurisdiction dismissing
his client’s application for land registration? (2009 Bar Question) By notice of appeal, within 15 days
from notice of judgment or final order appealed from, to the Court of Appeals;
[b] Judgment of the Regional Trial Court (RTC) denying his client’s petition for a Writ of
Habeas Data? (2009 Bar Question) SUGGESTED ANSWER: By verified petition for review on
certiorari under Rule 45, with the modification that appellant may raise questions of fact or law or
both, within 5 work days from date of notice of the judgment or final order to the Supreme Court
(Sec. 19, A.M. No. Q8-1- 16SC);
[c] Order of a Family Court denying his client’s petition for Habeas Corpus in relation to
custody of a minor child? (2009 Bar Question) SUGGESTED ANSWER: By notice of appeal, within
48 hours from notice of judgment or final order to the Court of Appeals (Sec. 14, RA No. 8369 in
relation to Sec 3, Rule 41, Rules of Court).
[d] Order of the RTC denying his client’s Petition for Certiorari questioning the
Metropolitan Trial Court’s (MeTC’s) denial of a motion to suspend criminal proceedings? (2009 Bar
Question) SUGGESTED ANSWER: By notice of appeal, within 15 days from notice of the final
Order, to the Court of Appeals (Magestrado v. People, 527SCRA 125 [2007]). [TOM disagrees because
filing of notice of appeal is only applicable when the decision was in the exercise of original jurisdiction
of the RTC]
[e] Judgment of the First Division of the Court of Tax Appeals (CTA) affirming the RTC
decision convicting his client for violation of the National Internal Revenue Code? (2009 Bar
Question) SUGGESTED ANSWER: By petition for review filed with the Court of Tax Appeals
(CTA) en banc, within 30 days from receipt of the decision or ruling in question (Sec. 9[b], Rule 9,
Rev. Rules of CTA).
52
When a Municipal Trial Court (MTC), pursuant to its delegated jurisdiction, renders an adverse
judgment in an application for land registration, the aggrieved party’s remedy is: (2014)
(A) ordinary appeal to the Regional Trial Court
(B) petition for review on certiorari to the Supreme Court
(C)ordinary appeal to the Court of Appeals
(D)petition for review to the Court of Appeals
Answer: (C) Ordinary appeal to the Court of Appeals. Under Section 34, Batas Pambansa Blg.
129, the judgment of the MTC in the exercise of its delegated jurisdiction in land registration
cases shall be appealable in the same manner as decisions of the RTC. Thus, an ordinary
appeal to the Court of Appeals is the appropriate remedy.
i. acción publiciana;
ii. acción reinvidicatoria.
7. Summary of MTC JN:
Excl 1. Actions involving personal property 1. All offenses punishable with imprisonment
usive
Origi where the value of the property does not exceeding 6 years (up to prison
nal not exceed Php 300,000 or, in Metro correccional) irrespective of the amount of
Manila Php 400,000; fine and regardless of other imposable
2. Actions for claim of money where accessory or other penalties; 2. in offenses
the demand does not exceed Php involving damage to property through
300,000 or, in Metro Manila Php criminal negligence they shall have
400,000; exclusive original jurisdiction thereof. (as
3. Probate proceedings, testate or amended by R.A, No. 7691); 3. Where the
intestate, where the value of the estate only penalty provided by law is a fine not
does not exceed Php 300,000 or, in exceeding Php 4,000 (Admin. Circular No.
Metro Manila Php 400,000; 09-94, June 14, 1994); 4. Those covered by
NOTE: In the foregoing, claim must be the Rules on Summary Procedure, i.e.: a)
exclusive of interest, damages, attorney’s Violations of traffic laws, rules and
fees, litigation expense, and costs (Sec. 33, regulations; b) Violations of the rental law;
BP 129 as amended by RA 7691). c) Violations of municipal or city
4. Actions involving title to or ordinances; 5. Violations of BP 22 (A.M.
possession of real property or any No. 00-11-01-SC); 6. All other criminal
interest therein where the value or cases where the penalty is imprisonment
amount does not exceed Php 20,000 not exceeding 6 months and/or a fine of
or, in Metro Manila Php 50,000 Php 1,000 irrespective of other penalties or
exclusive of interest damages, civil liabilities arising therefrom; 7. All
attorney’s fees, litigation expense, and offenses committed by public officers and
costs; (2008 Bar Question) employees in relation to their office,
5. Maritime claims where the demand including government-owned or –controlled
or claim does not exceed Php 300,000 corporations, and by private individuals
or, in Metro Manila Php 400,000 charged as co-principals, accomplices or
(Sec. 33, BP 129, as amended by RA accessories, punishable with imprisonment
7691); not more than 6 years or where none of
6. Inclusion or exclusion of voters (Sec. the accused holds a position classified as
138, BP 881); “Grade 27” and higher (Sec. 4, P.D. 1606,
7. Those covered by the Rules on as amended by RA 8249).
Summary Procedure:
a. Forcible entry and unlawful
detainer;
b. Other civil cases except probate
where the total amount of the
plaintiff’s claims does not exceed
Php 100,000 or, in Metro Manila
Php 200,000 exclusive of interest
and costs (as amended by A.M. No.
02-11-09-SC).
8. Those covered by the Rules on
Small Claims, i.e. actions for
payment of money where the claim
does not exceed Php 200,000 [starting
Feb 1, 2016] exclusive of interest and
costs.
Dele Cadastral or land registration cases covering

gated
lots where:
1. There is no controversy or
opposition;
2. Contested but the value does not

exceed Php 100,000 (Sec. 34, BP 129,
as amended by RA 7691).
NOTE: The value shall be ascertained by
the affidavit of the claimant or agreement
of the respective claimants (Sec. 34, BP 129
as amended by RA 7691).
Speci Petition for habeas corpus in the absence Application for bail in the absence of all
al
of all RTC judges in the province or city RTC judges in the province or city.
(Sec. 35, BP 129).
With Cases involving enforcement or violations
RTC
of environmental and other related laws,
rules and regulations (Sec. 2, Rule 1, A.M.
No. 09-6-8-SC).
Bar areas:
2.5.8. Shari’a Courts

Exclusive Original 1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of
Muslim Personal Laws;
2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of
wills, issuance of letters of administration or appointment of administrators or executors regardless of
the nature or aggregate value of the property;
3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the
Muslim Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are Muslims, if they have not
specified which law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs and
processes in aid of its appellate jurisdiction.
Concurrent (with all 1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an
civil courts) insane person to an asylum;
2. All other personal and legal actions not mentioned in paragraph 1(d) wherein the parties involved are
Muslims except those for forcible entry and unlawful detainer, which shall fall under the
exclusive jurisdiction of the Municipal Circuit Court; and
3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the
property involved belongs exclusively to Muslims.
———————————————————————————————
2.6. Over small claims; cases covered by the Rules on Summary Procedure
and Barangay conciliation
Katarungang Pambarangay Rule on Rules on
Law Small Claims Cases Summary Procedure
Purpose/Object To effect an amicable settlement To provide a simpler and more To achieve an expeditious and
of disputes among family and inexpensive and expeditious inexpensive determination of the
barangay members at the barangay means of settling disputes cases defined to be governed by
level without judicial recourse and involving purely money claims the Rules on Summary Procedure
consequently help relieve the than the regular civil process
courts of docket congestion
(Preamble of PD 1508). (1999 Bar
Question)
Where to file 1. For disputes between residents 1. MeTC 1. MeTC

of the same barangay: the dispute 2. MTCC 2. MTCC
must be brought for settlement in 3. MTC 3. MTC
the said barangay; 2. For disputes 4. MCTC 4. MCTC
between residents of different but
adjoining barangays and the parties
agree to submit their differences to
amicable settlement: within the
same city or municipality where
any of the respondents reside at
the election of the complainant; 3.
For disputes involving real
property or any interest when the
parties thereto agree to submit
their differences to amicable
settlement by an appropriate lupon
therein shall be brought in the
barangay where the real property
or larger portion thereof is
situated; 4. For disputes arising at
the workplace where the
contending parties are employed
or at the institution where such
parties are enrolled for study shall
be brought in the barangay where
such workplace or institution is
located.
Cases Covered
Civil Cases All disputes involving parties who Small claims cases – civil claims 1. All cases of forcible entry and
actually reside in the same city or which are exclusively for the unlawful detainer
municipality may be the subject of payment or reimbursement of a irrespective of the amount of
the proceedings for amicable sum of money not exceeding Php damages or unpaid rentals
settlement in the barangay. 100,000 exclusive of interest and sought to be recovered.
costs, either Where attorney’s fees are
1. Purely civil in nature where awarded, the same shall not
the claim or relief prayed for exceed Php 20,000; and
by the plaintiff is solely for 2. All other civil cases, except
payment or reimbursement probate proceedings, where
of sum of money, or the total amount of plaintiff’s
2. The civil aspect of criminal claim does not exceed Php
actions, either filed before the 100,000 or does not exceed
institution of the criminal Php 200,000 in Metro
action, or reserved upon the Manila, exclusive of interests
filing of the criminal action in and costs (A.M. No. 02-11-
court, pursuant to Rule 111 09-SC, November 25, 2005).
of the Revised Rules of
Criminal Procedure.
These claims or demands may be:
1. For money owed under any
of the following:
a. Contract of Lease;
b. Contract of Loan;
c. Contract of Services;
d. Contract of Sale;
e. Contract of Mortgage;
2. For damages arising from any
of the following:
a. Fault or negligence;
b. Quasi-contract;
c. Contract;
The enforcement of a barangay
amicable settlement or an
arbitration award involving a
money claim covered by this Rule
pursuant to Sec. 417, LGC.
Criminal Cases When punishable by None 1. Violations of traffic laws,

imprisonment of not more than 1 rules and regulations;
year or fine of not more than Php 2. Violations of the rental law;
5,000 (Sec. 408, LGC). 3. Violations of municipal or
city ordinances;
4. Violations of B.P. 22 or the
Bouncing Checks Law (A.M.
No. 00-11-01-SC, April 15,
2003);
5. All other criminal cases
where the penalty is
imprisonment not exceeding
6 months and/or a fine of
Php 1,000 irrespective of
other penalties or civil
liabilities arising therefrom;
and
6. Offenses involving damage
to property through criminal
negligence where the
imposable fine is not
exceeding Php 10,000.
———————————————————————————————
2.7 Totality rule

1. Totality or Aggregate Rule: *****Where there are SEVERAL claims or causes
of actions between the SAME OR DIFFERENT parties embodied in ONE
COMPLAINT, the amount of the demand shall be the TOTALITY OF THE
CLAIMS in all causes of action irrespective53 of whether the causes of action
53
Q: Lender extended to Borrower a Pl00,000.00 loan covered by a promissory note. Later,
Borrower obtained another Pl00,000.00 loan again covered by a promissory note. Still later,
Borrower obtained a P300,000.00 loan secured by a real estate mortgage on his land valued at
P500,000.00. Borrower defaulted on his payments when the loans matured. Despite demand to pay
the P500,000.00 loan, Borrower refused to pay. Lender, applying the totality rule, filed against
Borrower with the Regional Trial Court (RTC) of Manila, a collection suit for P500,000.00. Did Lender
correctly apply the totality rule and the rule on joinder of causes of action? (2015)
A: YES. *****The Lender correctly applied the totality rule and the rule on joinder of
causes of action because where the claims in all the causes of action are principally for recovery of
sum of money, the aggregate amount of the claim shall be the test of jurisdiction (Section 5(d),
Rule 2). Here, the total amount of the claim is P500,000.00. Hence, the Regional Trial Court (RTC)
of Manila has jurisdiction over the suit. At any rate, it is immaterial that one of the loans is secured
by a real estate mortgage because the Lender opted to file a collection of sum of money instead
of foreclosure of the said mortgage.
[] Q: At the trial, Borrower's lawyer, while cross-examining Lender, successfully elicited an
admission from the latter that the two promissory notes have been paid. Thereafter, Borrower's
lawyer filed a motion to dismiss the case on the ground that as proven only P300,000.00 was the
amount due to Lender and which claim is within the exclusive original jurisdiction of the
Metropolitan Trial Court. He further argued that lack of jurisdiction over the subject matter can
be raised at any stage of the proceedings. Should the court dismiss the case? (2015)
A: NO. The court should not dismiss the case. ******What determines the jurisdiction of
the court is the nature of the action pleaded as appearing from the allegations in the complaint.
The averments therein and the character of the relief sought are the ones to be consulted (Navida v.
Hon. Teodoro A. Dizon, Jr., G.R. No. 125078, May 30, 2011). Accordingly, even if the defendant is
arose out of the same or different transaction (Sec. 5(d), Rule 2).54
2. Under the present law, the totality rule is applied also to cases where two or
more plaintiffs having separate causes of action against a defendant join in a
single complaint, as well as to cases where a plaintiff has separate causes of
action against two or more defendants joined in a single complaint. However,
the causes of action in favor of the two or more plaintiffs or against the two or
more defendants should arise out of the same transaction or series of
transactions and there should be a common question of law or fact, as
provided in Sec. 6, Rule 3 (permissive joinder of parties).55 ******Hence, the
totality rule is NOT APPLICABLE if the claims are separate and distinct
from each other and did not arise from the same transaction. In the case of
Flores v. Mallare Philips, the SC did not apply the totality test where there are two
claims filed by Flores first against Ignacio Binongcal and the second cause of action was
against Fernando Calion for allegedly refusing to pay an amount representing cost of
truck tires.
4. Claim for damages:
a. GR: If the main action is for the recovery of sum of money and the
damages being claimed are merely the consequences of the main cause of
action, the same are not included in determining the jurisdictional amount.
b. ******However, in cases where the claim for damages is the main
cause of action, or one of the causes of action, the amount of such claim shall
be considered in determining the jurisdiction of the court (Albano, 2010)
able to prove in the course of the trial that a lesser amount is due, the court does not lose jurisdiction
and a dismissal of the case is not in order (Paadlan v. Dinglasan, G.R. No. 180321, March 20, 2013).
54
P sued A in the RTC-Manila to recover the following sums: (1) P200,000.00 on an overdue
promissory note, (2) P80,000.00 on the purchase price of a computer, (3) P150,000.00 for damages to
his car and (4) P100,000.00 for attorney’s fees and litigation expenses. Can A move to dismiss the case
on the ground that the court has no jurisdiction over the subject matter? Explain. (2%)
SUGGESTED ANSWER: No, because the RTC-Manila has jurisdiction over the subject
matter. P may sue A in one complaint asserting as many causes of action as he may have and
since all the claims are principally for recovery of money, the aggregate amount claimed shall be the
test of jurisdiction. [Rule 2, sec. 5(d)]. The aggregate amount claimed is P430,000.00, exclusive of the
amount of P100,000.00 for attorney’s fees and expenses of litigation. Hence, the RTC-Manila has
jurisdiction.
55
Q: Marissa brought an action against Dely and Inday in one complaint before the Regional Trial
Court of Manila. As her first cause of action, Marissa alleges that Dely purchased from her on various
occasions truck tires worth PI2,000 but refused to pay the said amount despite several demands. As
her second cause of action, Marissa alleges that Inday likewise purchased from her on several occasions
truck tires worth P10,000 but refused to pay the said amount despite repeated demands. The total
amount o£ Marissa’s demands against the two is P22,000. Both Dely and Inday now separately move
to dismiss the complaint on the ground that the RTC has no jurisdiction over the case. How would
you resolve these motions? Explain. (1989 Bar Question) Answer:
I would grant said motions to dismiss, *****because the totality rule is subject to the rule on
permissive joinder of parties. In this case, there is misjoinder of parties (defendant) inasmuch as the
claims against the two defendants are separate and distinct from each other and cannot be
joined in a single complaint. Neither claim falls within the jurisdiction of the Regional Trial
Court. (Flores v. Mallare-Philipps, 142 SCRA 377).
———————————————————————————————
III. Civil Procedure
3.1. Actions
3.1.1. Meaning of ordinary civil actions 66
3.1.2. Meaning of special civil actions 66
3.1.3. Meaning of criminal actions 66
3.1.4. Civil actions versus special proceedings 67
3.1.5. Personal actions and real actions 67
JURISDICTIONAL AMOUNTS FOR PERSONAL ACTIONS 67
JURISDICTIONAL AMOUNTS FOR REAL ACTIONS 68
Those incapable of pecuniary estimation—file at the RTC 69
Venue of other actions 71
3.1.6. Local and transitory actions 75
3.1.7. Actions in rem, in personam and quasi in rem 79
Actions in personam vs. personal action 80
Actions in rem 81
Actions quasi in rem 83
Review of common actions that may confuse you 84
ACTION FOR DAMAGES (A4D) 85
3.1.8. Independent Civil Actions 87
———————————————————————————————
3.1.1. Meaning of ordinary civil actions

1. Civil actions: where a party sues another for
a. the enforcement or protection of a right, or
b. the prevention or redress (remedy) of a wrong.
2. A civil action may either be:
a. ordinary (OCA) or
b. special (SCA).
*Both OCA & SCA are governed by OCA subject to specific rules for SCA.
3. SUBJECT MATTER of an action: It is the physical facts, the thing, real or
personal, the money, lands, chattels, and the like, in relation to which the suit is
prosecuted (Iniego v. Purganan, G.R. No. 166876, March 24, 2006).
4. When civil actions COMMENCE [s5r1]: by the filing of the original
complaint in court. It can be instituted by filing the complaint
a. by personal service or
b. by registered mail (Sec. 3, Rule 13).
**NB: 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 (Heirs of Hinog v.
Melicor, G.R. No. 140954, April 12, 2005).
**If an additional defendant is impleaded in a later pleading: the action
is commenced with regard to him on the date of the filing of such later
pleading, irrespective of whether the motion for its admission, if necessary, is denied by
the court.
3.1.2. Meaning of special civil actions

1. It is one in which a party sues another for
a. the enforcement or protection of a right or
b. the prevention or redress of a wrong
*wherein it has special features not found in ordinary civil actions.
2. It is governed by ordinary rules but subject to specific rules prescribed under
Rules 62-71. (Riano, 2011).
3.1.3. Meaning of criminal actions

[] criminal actions: where the State prosecutes a person for an act or omission
punishable by law.
3.1.4. Civil actions versus special proceedings

1. A civil action is one by which a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong (Rule 1, Sec. 3
(a)), while a special proceeding is a remedy by which a party seeks to establish a
status, a right, or a particular fact (Rule 1, Sec. 3 (c)).
2. Action vs.56 SpecPro
Action Special Proceeding
Purpose Civil action: 1. To establish a status;

1. To protect a right; 2. Right; or
2. Prevent or redress a wrong. 3. Particular fact (Sec. 3 Rule 1).
Criminal action: Prosecute a person Rules of special proceedings are provided for under
for an act or omission punishable Sec. 1 of Rule 72 of the Rules of Court (EG:
by law (Sec. 3, Rule 1) settlement of estate, escheat, guardianship, etc.)
(Riano, 2014).
Governing Ordinary rules supplemented by Requires the application of specific rules as
Law
special rules provided for in the Rules of Court (Natcher v. CA, et
al., G.R. No. 133000, October 2, 2001)
Court Heard by courts of general Heard by courts of limited jurisdiction (Ching v.
jurisdiction Rodriguez, G.R. No. 192828, November 28, 2011)
56
******Distinguish special proceeding from an ordinary action. (1996/1999 Bar Question) Answer: A
special proceeding is a remedy to establish the status or right of a party or a particular fact, while
an ordinary action is one by which one party prosecutes another for the enforcement or protection
of a right or the prevention or redress of a wrong. (Secs. 1 and 2 of Rule 2)
Procedure Initiated by a pleading and parties Initiated by an application and parties respond
respond through an answer through an opposition
3.1.5. Personal actions and real actions

1. Real action: those affecting [TPI]
a. title to
b. or possession of real property,
b. or interest therein.
2. All else are personal actions.
3. *****Importance of knowing if the action is real or personal: it has
legal implications on 3 things:
a. Jurisdiction: If real, JN is based on the assessed value57 of
the land; if personal (like rescission of a contract) and it’s incapable of
pecuniary estimation, it’s under RTC; if capable of pecuniary
estimation, look at the jurisdictional amounts, infra.
b. Venue: if real, where property is located; if personal, choice of
plaintiff (his residence or the residence of the defendant). See more
under venue, infra.
c. Filing fees: if real, docket fees based on FMV (Fair Market
Value; tax declaration or zonal valuation, whichever is higher) or if
none, stated value; if personal, based on claims in prayer.
4. See Rule 4 on Venue; Questions involving the propriety or
impropriety of a particular venue are resolved by initially determining the
nature of the action, i.e., if the action is personal or real (Riano,
2014)******
57
Q: Angelina sued Armando before the Regional Trial Court (RTC) of Manila to recover the
ownership and possession of two parcels of land; one situated in Pampanga, and the other in
Bulacan.
[a] May the action prosper? Explain. (2%) (2009 Bar Question) SUGGESTED ANSWER:
NO, the action may not prosper, because under Rep. Act No. 7691, exclusive original jurisdiction in
civil actions which involve title to, or possession of real property or any interest therein is determined
on the basis of the assessed value of the land involved, whether it should be P20,000 in the rest of
the Philippines, outside of the Manila with courts of the first level or with the-Regional Trial Court
[TOM: see jurisdictional amounts]. The assessed value of the parcel of land in Pampanga is different
from the assessed value of the land in Bulacan. What is involved is not merely a matter of venue, which
is waivable, but of a matter of jurisdiction. However, the action may prosper if jurisdiction is not in
issue, because venue can be waived.
[b] Will your answer be the same if the action was for foreclosure of the mortgage over the two
parcels of land? Why or why not? (2%) SUGGESTED ANSWER: NO, the answer would not be the
same. The foreclosure action should be brought in the proper court of the province where the land
or any part thereof is situated, either in Pampanga or in Bulacan. Only one foreclosure action need be
filed unless each parcel of land is covered by distinct mortgage contract.
In foreclosure suit, the cause of action is for the violation of the terms and conditions of the mortgage
contract; hence, one foreclosure suit per mortgage contract violated is necessary.
Real Action Personal Action
Scope When it affects title to or possession Recovery of personal property, the

of real property, or an interest therein enforcement of a contract or the recovery of
(Sec. 1, Rule 4) damages (Chua v. TOPROS, G.R. No. 152808,
September 30, 2005)
Basis When it is founded upon the privity of Founded on privity of contract such as
a real estate. The realty or interest damages, claims of money, etc. (Paper Industries
therein is the subject matter of the Corporation of the Philippines v. Samson, G.R. No. L-
action. NB: It is important that the 30175, November 28, 1975)
matter in litigation must also involve
any of the following issues; 1. Title; 2.
Ownership; 3. Possession; 4. Partition;
5. Foreclosure of mortgage; 6. Any
interest in real property (Riano, 2014).
Venue Venue of action shall be commenced Venue of action is the place where the plaintiff
and tried in the proper court which or any of the principal plaintiffs resides, or
has jurisdiction over the area wherein where the defendant or any of the principal
the real property involved, or a defendants resides, or in the case of a non-
portion thereof is situated (Sec. 1, Rule resident defendant where he may be found,
4). at the election of the plaintiff (Sec. 2, Rule 4).
JURISDICTIONAL AMOUNTS FOR PERSONAL ACTIONS

1. Ceiling:
a. first level courts in Metro Manila: up to 400K;
b. first level courts outside MM: up to 300K
2. Rules:
a. ******GR: The said amounts do not include DIAL-C: Damages,
Interest, Attorney’s fees, Litigation expenses and Costs (the latter two is where
docket fees fall into).
b. XPN1: However, ACCRUED INTERESTS are included if they are
already earned [Gomez v. Montalban]; without the word ‘accrued’, do not
include interests; include interest of a loan if it is DETERMINABLE at the
time of filing of the complaint, i.e., when the interest is a PRIMARY &
INSEPARABLE component of a cause of action, and not merely incidental
thereto.
c. XPN2: when an action is primarily one for damages. Interest is
included if it’s a PRIMARY component of the cause of action [Gomez vs
Montalban (2008)]. EG: interest on a loan.58
3. AMOUNT PLEADED, NOT PROVEN: Jurisdiction can neither be made to
depend on the amount ultimately substantiated in the course of the trial or
58
Since the interest on the loan is a primary and inseparable component of the cause of action, not merely
incidental thereto, and already determinable at the time of filing of the Complaint, it must be included
in the determination of the jurisdictional amount to ascertain which court has the jurisdiction
over case.
proceedings nor be affected by proof showing that the claimant is entitled to

recover a sum in excess of the jurisdictional amount fixed by law.
*****Jurisdiction is determined by the cause of action as alleged in the complaint
and not by the amount ultimately substantiated and awarded. [Gomez vs
Montalban (2008)]
4. When are these jurisdictional amounts used? PEA:******
a. the value of the personal property is the subject matter of the action;
b. the gross value59 of the Estate (probate cases);60,61 NB: probate cases are
excluded from the rules on Summary Procedure whose jurisdictional amounts are
only 100K/200K, as compared to 300K/400K here.62
c. the amount of demand/claim.
5. Other actions covered [NB: all these cases, regardless of the amount, used to
be under RTC.]
a. action for replevin63 (personal property capable of manual delivery):
59
What courts have jurisdiction over the following cases filed in Metro Manila? (1997 Bar Question)
e) A petition for the probate of a will involving an estate valued at P200.000.00.
e) A petition for the probate of a will involving an estate valued at 200,000.00 falls within the
jurisdiction of the Metropolitan Trial Courts in Metro Manila (Id; Sec. 19(41 of BP 129, as amended).
Additional Answer:
60
Probate—follow gross value of the estate. EG: probate of an estate worth 200K: MTC.
61
Q: A, a resident of Malolos, Bulacan, died leaving an estate located in Manila, worth P200,000. In
what court, taking into consideration the nature of jurisdiction and of venue, should the probate
proceeding on the estate of A be instituted? (2003 Bar Question) SUGGESTED ANSWER:
The probate proceeding on the estate of A should be instituted in the Municipal Trial Court
of Malolos, Bulacan which has jurisdiction, because the estate is valued at P200,000.00, and is
the court of proper venue because A was a resident of Malolos at the time of his death. (Sec. 33 of
BP 129 as amended by RA 7691; Sec. 1 of Rule 73).
62
Q: Josefa filed in the Municipal Circuit Trial Court of Alicia and Mabini, a petition for the probate of
the will of her husband, Martin, who died in the Municipality of Alicia, the residence of the spouses.
The probable value of the estate which consisted mainly of a house and lot was placed at P95,000.00
and in the petition for the allowance of the will, attorney's fees in the amount of P10,000.00, litigation
expenses in the amount of P5,000.00 and costs were included. Pedro, the next, of kin of Martin, filed
an opposition to the probate of the will on the ground that the total amount included in the relief of
the petition is more than P100,000.00, the maximum jurisdictional amount for municipal circuit trial
court. The court overruled the opposition and proceeded to hear the case. Was the municipal circuit
trial court correct in its ruling? Why? (5%) (2001 Bar Question) SUGGESTED ANSWER:
Yes, the Municipal Circuit Trial Court was correct in proceeding to hear the case. It has
exclusive jurisdiction in all matters of probate, both testate and intestate, where the value of the estate
does not exceed P100,000,00 (now 300K/400K). The value in this case of P95,000.00 is within its
jurisdiction. ******In determining the jurisdictional amount, excluded are attorney's fees,
litigation expenses and costs; these are considered only for determining the filing fees. (B.P.
Big. 129, sec. 33, as amended)
63
c) An action for replevin of a motorcycle valued at P150,000.00.
c) An action for replevin of a motorcycle valued at 150,000.00 falls within the jurisdiction of
the Metropolitan Trial Courts in Metro Manila (Sec. 33 of BP 129. as amended by RA No. 7691)
determine the value of the property (EG: car64 or vessel65).

b. interpleader:66 get the value of the goods: follow the valuation made by
the plaintiff, not the defendant’s.67
c. admiralty/maritime cases: use the amount of the claim.68
JURISDICTIONAL AMOUNTS FOR REAL ACTIONS

1. Real actions: those that involved TITLE to, POSSESSION of, or ANY
64
Replevin: Determine the amount of the personal property in question, then follow the jurisdictional
amounts. EG: replevin of a motorcycle costing 150K: MTC
65
Bar 1988: b) Capt. Basaya and twenty-four (24) sailors are the crew of F/b Carribbean, a fishing boat
chartered and operated since 1977 by Tuna, Inc. In 1985, Tuna, Inc. transferred its operation to a sister
corporation, Eastship Corporation. On June 28,1986, Capt. Basaya and his crew informed Eastship
that they would not sail the ship unless their economic demands, which they had presented
previously to Tuna, Inc., were granted. Eastship on July 8,1986 filed with the National Labor
Relations Commission in Cebu a Petition to declare the strike by Capt. Basaya and his crew illegal.
In turn, the crew filed on August 8,1986 a complaint for unfair labor practice against Tuna, Inc.
and Eastship. On July 9, 1986, a day after the filing of the illegal strike complaint, Tuna, Inc. also
sought the remedy of Replevin before the Regional Trial Court praying that Capt. Basaya and his
crew be ordered to deliver the possession of the vessel to it as their possession was in violation of
its rights. Which Court or Tribunal has jurisdiction over the issue of possession of the vessel? Explain.
Answer: The Regional Trial Court has jurisdiction over the issue of possession of the vessel.
The replevin case is not involved in the labor dispute. The question of who has the better right of
possession is outside the competence of labor tribunals and within the jurisdiction of civil courts.
(Basaya, Jr. vs. Militante, Dec. 11,1987) [TOM: it depends on the value of the vessel—see jurisdictional
amounts]
66
d) An action for Interpleader to determine who between the defendants is entitled to receive the
amount of P190.000.00 from the plaintiff.
d) An action for interpleader to determine who between the defendants is entitled to receive
the amount of P190,000.00 falls within the jurisdiction of the Metropolitan Trial Courts in Metro
Manila. (Id.; Makati Dev. Corp. v. Tanjuatco, 27 SCRA 401)
67
Interpleader (compel parties with adverse claims to litigate): Determine the property subject of the
interpleader:
a. if personal property: look at the value of the goods; EG: amount is 190K: MTC.
b. if real property: look at the assessed value of the RP.
68
Q: On August 13, 2008, A, as shipper and consignee, loaded on the M/V Atlantis in Legaspi City
100,000 pieces of Century eggs. The shipment arrived in Manila totally damaged on August 14, 2008. A
filed before the Metropolitan Trial Court (MeTC)of Manila a complaint against B Super Lines, Inc. (B
Lines), owner of the M/V Atlantis, for recovery of damages amounting to P167,899. He attached to
the complaint the Bill of Lading. B Lines filed a Motion to Dismiss upon the ground that the Regional
Trial, Court has exclusive original jurisdiction over "all actions in admiralty and maritime" claims. In his
Reply, A contended that while the action is indeed "admiralty and maritime" in nature, it is the amount
of the claim, not the nature of the action, that governs jurisdiction. Pass on the Motion to Dismiss.
(3%) (2010 Bar Question) SUGGESTED ANSWER:
The Motion to Dismiss is without merit and therefore should be denied. Courts of the first
level have jurisdiction over civil actions where the demand is for sum of money not exceeding
P300, 000.00 or in Metro-Manila, P400, 000.00, exclusive of Interest, damages, attorney's fees,
litigation expenses and, costs: this jurisdiction includes admiralty and marine cases. *****And where
the main cause of action is the claim for damages, the amount thereof shall be considered in
determining the jurisdiction of the court (Adm. Circular No. 09-94, June 14, 1994).
INTEREST in real property.69

2. First level courts now have jurisdiction to take cognizance of real actions or
those affecting title to real property, or for the recovery of possession, or for the
partition or condemnation of, or foreclosure of a mortgage on real property.
Barrido vs Nonato (2014).70 Basis: assessed value71 of the real property (found in
the tax declaration):72
a. first level courts within MM: up to 50K;
b. first level courts outside MM: up to 20K.
[] Landmark case: Russell vs. Vestil 1999: “While actions under Sec. 33(3)73
of B.P. 129 are also incapable of pecuniary estimation, the law specifically
mandates that they are cognizable by the MTC, METC, or MCTC where the
assessed value of the real property involved” does not exceed the jurisdictional
69
An action "involving title to real property" means that the plaintiff’s cause of action is based on a
claim that he owns such property or that he has the legal rights to have exclusive control,
possession, enjoyment, or disposition of the same. In such cases, the assessed value of the
property must be considered to determine which court has jurisdiction. *****The action is about
ascertaining which of the parties is the lawful owner of the subject lots considering that the
declaration of the nullity of the documents and/or the reconveyance would merely follow after the trial
court shall have first resolved the issue of who between the contending parties is the lawful owner of
such lots and the one also entitled to their possession, jurisdiction over which is determined by the
assessed value of such lots. [Sebe vs Sevilla (2009)]
70
Under the present law, original jurisdiction over cases the subject matter of which involves "title to,
possession of, real property or any interest therein" under Section 19(2) of B.P. 129 is divided
between the first and second level courts, with the assessed value of the real property involved as
the benchmark. This amendment was introduced to "unclog the overloaded dockets of the RTCs
which would result in the speedier administration of justice.” San Pedro vs Asdala (2009)
71
[] Section 33 of BP Blg 129 (as amended by R.A. No. 7691) provides: "Section 33. Jurisdiction of
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in civil cases. –
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:
xxx (3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of,
real property, or any interest therein where the assessed value of the property or interest therein
does not exceed P20,000.00 or, in civil actions in Metro Manila, where such assessed value does not
exceed P50,000.00 exclusive of interest, damages of whatever kind, attorney's fees, litigation
expenses and costs: Provided, That value of such property shall be determined by the assessed value of the
adjacent lots.”
72
[] JURISDICTIONAL VALUES: As things now stand, a distinction must be made between
those properties the assessed value of which is below P20,000.00, if outside Metro Manila; and
P50,000.00, if within. If the assessed value of the real property involved does not exceed P50,000 in
Metro Manila, and P20,000 outside of Metro Manila, the municipal trial court exercises jurisdiction
over actions to recover possession of real property. [Quinagoran vs CA (2007)]
73
BP 129, Sec. 33 (3) Exclusive original jurisdiction in all civil actions which involve title to, or
possession of, real property, or any interest therein where the assessed value of the property or interest
therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila,
where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest,
damages of whatever kind, attorney's fees, litigation expenses and costs: Provided, That value of such
property shall be determined by the assessed value of the adjacent lots. (as amended by R.A. No.
7691)
amounts, otherwise, it is the Regional Trial Courts which has JN.74

3. MEANING OF ASSESSED VALUE:75 Jurisdiction over actions involving title
to or possession of real property is now determined by its assessed value. The
assessed value of real property is its fair market value multiplied by the
assessment level. *****It is synonymous to taxable value.76 Supapo vs De
Jesus (2015)
4. ASSESSED VALUE IS NOT CONSIDERED IF RTC IS EXERCISING
APPELLATE JURISDICTION: it applies only if the court is in the exercise
of its original jurisdiction.77
5. DISMISS ACTION IF THE ASSESSED VALUE IS NOT SPECIFIED: since
the assessed value of the property was not alleged, it cannot be determined
which trial court had original and exclusive jurisdiction over the case.78
74
BAR 2017: Q: What trial court outside Metro Manila has exclusive original jurisdiction over the
following cases? Explain briefly your answers. SUGGESTED ANSWER: Exclusive original
jurisdiction is vested in the MTC. The Supreme Court has held that where the ultimate relief sought by
an action is the assertion of title to real property, the action is a real one and not one incapable of
pecuniary estimation. [Brgy. Piapi v. Talip, 7 Sep 2005] Here the ultimate relief sought by the complaint
is the assertion of title since the seller seeks to exercise his right to repurchase. Hence the action is a
real one and jurisdiction is vested in the MTC since the assessed value does not exceed
P20,000. ALTERNATIVE ANSWER: Exclusive original jurisdiction is vested in the RTC. The
Supreme Court has held that an action to enforce the right of redemption is one which is
incapable of pecuniary estimation and thus within the exclusive original jurisdiction of the RTC
pursuant to B.P. Blg. 129. [Heirs of Bautista v. Lindo, 10 March 2014] (Jurist Review Center, Inc.)
75
[] A complaint must allege the assessed value of the real property subject of the complaint or
the interest thereon to determine which court has jurisdiction over the action. This is because
the nature of the action and which court has original and exclusive jurisdiction over the same is
determined by the material allegations of the complaint, the type of relief prayed for by the plaintiff
and the law in effect when the action is filed, irrespective of whether the plaintiffs are entitled to some
or all of the claims asserted therein. [Quinagoran vs CA (2007)]
76
[] The estimated value, commonly referred to as fair market value, is entirely different from
the assessed value of the property. Assessed value is understood to be "the worth or value of
property established by taxing authorities on the basis of which the tax rate is applied.
Commonly, however, it does not represent the true or market value of the property.” Geonzon Vda.
De Barrera vs Legaspi (2008)
77
The Court does not agree with the ruling of the CA that the RTC lacks jurisdiction over the case on
the ground that Arrienda failed to allege the assessed value of the subject land in his Complaint.
It must be clarified that this requirement applies only if these courts are in the exercise of their
original jurisdiction. In the present case, the RTC was exercising its appellate, not original,
jurisdiction when it took cognizance of Arrienda's appeal and Section 22 of B.P. Blg. 129 does
not provide any amount or value of the subject property which would limit the RTC's exercise
of its appellate jurisdiction over cases decided by first level courts. Arrienda vs Kalaw (2016)
78
For the RTC to exercise jurisdiction, the assessed value of the subject property must exceed
P20,000.00. Since petitioners failed to allege in their Complaint the assessed value of the subject
property, the CA correctly dismissed the Complaint as petitioners failed to establish that the RTC
had jurisdiction over it. In fact, since the assessed value of the property was not alleged, it cannot be
determined which trial court had original and exclusive jurisdiction over the case. Heirs of Julao v.
De Jesus, September 29, 2014
However, THE COURT MAY LOOK INTO THE ATTACHED DOCUMENTS

TO THE COMPLAINT TO CHECK THE A.V.79
6. Cases where the assessed value is jurisdictional:
a. reconveyance of ownership of a real property or for cancellation of title
to or to quiet title over real property;80
b. annulment of contract of sale to recover ownership of land;
c. ACCION PUBLICIANA is no longer filed with RTC alone; check the
assessed value of the property in controversy.81,82
79
Generally, the court should only look into the facts alleged in the complaint to determine whether
a suit is within its jurisdiction. There may be instances, however, when a rigid application of this rule
may result in defeating substantial justice or in prejudice to a party’s substantial right.
a. In Marcopper Mining Corp. v. Garcia: in addition to the complaint, other pleadings submitted
by the parties in deciding whether or not the complaint should be dismissed for lack of cause of action.
b. In Guaranteed Homes, Inc. v. Heirs of Valdez, et al.: the factual allegations in a complaint should
be considered in tandem with the statements and inscriptions on the documents attached to it
as annexes or integral parts.
c. Tumpag v. Tumpag, September 24, 2014: the petitioner filed a complaint for recovery of
possession of real property before the RTC but failed to allege in her complaint the property’s
assessed value. Attached, however, to the petitioner’s complaint was a copy of a Declaration of
Real Property showing that the subject property has a market value of P51,965.00 and assessed
value of P20,790.00. A mere reference to the attached document could facially resolve the
question on jurisdiction and would have rendered lengthy litigation on this point unnecessary.
80
Actions for reconveyance of or for cancellation of title to or to quiet title over real property are
actions that fall under the classification of cases that involve "title to, or possession of, real
property, or any interest therein." In such cases, jurisdiction is determined according to
assessed value of the property involved. In determining which court has jurisdiction, it is only the
assessed value of the realty involved that should be computed. Concha vs Lumocso (2007)
81
Q: Anabel filed a complaint against B for unlawful detainer before the Municipal Trial Court (MTC)
of Candaba, Pampanga. After the issues had been joined, the MTC dismissed the complaint for lack of
jurisdiction after noting that the action was one for accion publiciana. Anabel appealed the dismissal to
the RTC which affirmed it and accordingly dismissed her appeal. She elevates the case to the Court of
Appeals, which remands The case to the RTC, Is the appellate court correct? Explain (3%). (2010 Bar
Question) SUGGESTED ANSWER:
Yes, the Court of Appeals is correct in remanding the case to RTC for the latter to try the same
on the merits. The RTC, having jurisdiction over the subject matter of the case appealed from MTC
should try the case on the merits as if the case was originally med with it, and not just to affirm the
dismissal of the case.
*****Rep. Act No. 7691, however, vested jurisdiction over specified accion publiciana
with courts of the first level (Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts) in cases where the assessed value of the real property involved does not
exceed P20,000.00 outside Metro Manila, or in Metro Manila, where such value does not exceed
P50,000.00.
82
Q: While Alfredo was abroad, a parcel of land belonging to him was intruded into and occupied by
Rodrigo on January 1, 1991. When Alfredo returned on February 1, 1991, he immediately demanded
that Rodrigo vacate the property. When the demand went unheeded. Alfredo prepared a complaint
alleging: that he is the owner of the property which Rodrigo has intruded into and is occupying; that
the intrusion done with strategy and stealth, has caused him actual damages of P30.000.00; and he,
therefore, is praying the court to restore him to the possession of the property, to award him
damages, and to further grant him such other reliefs as may be proper in the premises. The complaint
7. When there are several cases, determine the crux of the controversy:
a. if it is a question on who has the better title over the subject property, it is
an action to quiet title,83 a real action, hence check the assessed value.84
b. otherwise, file it at the RTC, if it’s incapable of pecuniary estimation.
Those incapable of pecuniary estimation—file at the RTC

1. Specific performance (SP) is the usual example of a case that is incapable of
pecuniary estimation (PE);
a. if the case is for specific performance and damages, go to RTC: do not
mind the amount of damages.****
b. if it’s SP or damages: look at the amount of damages to determine JN. EG:
SP or damages of P150K (alternative), go to the MTC.85
was filed on March 1. 1991 with the Regional Trial Court which eventually rendered a decision
declaring Alfredo to be the owner of the land, awarding him damages of P5.000.00, and ordering that
possession of the property be restored to him. Rodrigo appealed to the Court of Appeals where he
ques-tioned the jurisdiction of the Regional Trial Court, pertinently contending that it was the
Municipal Trial Court which had original and exclusive jurisdiction over the case because (1) it was a
forcible entry case, having been filed within one year from the alleged intrusion; (2) the intrusion was
allegedly done through strategy and stealth which are hallmarks of a forcible entry case; and (3) the
declaration of ownership was uncalled for since Alfredo did not ask for it. As counsel for Alfredo,
what points will you raise and advance to rebut the arguments of Rodrigo and to justify the
jurisdiction, as well as the decision of the Regional Trial Court? (1992 Bar Question) Suggested
Answer:
As counsel for Alfredo. I would raise the point that the action was not one of forcible entry,
but an accion publiciana or a plenary action for recovery of possession de jure which is within the
jurisdiction of the Regional Trial Court [TOM: now, check the assessed value if the property to
determine if it’s under MTC (up to 20K/50K) or RTC (above those figures). Moreover, the claim of
actual damages in the amount of P30.000.00. is not within the jurisdiction of the Municipal Trial Court
*****If it were an action of forcible entry, the damages that could be claimed would be the
reasonable compensation for the use and occupation of the land and the amount hereof could
exceed Twenty Thousand Pesos. But damages other than the reasonable compensation for the use and
occupation of the premises are not recoverable in an action of forcible entry (Reyes us. Court of
Appeals, 38 SCRA 138). With respect to the declaration of ownership, I would argue that it was correct
inasmuch as Rodrigo did not question the ownership of Alfredo.
83
Thus, under Sec 19 (2) of BP 129, because an action for reconveyance or to remove a cloud
(quieting of title) on one’s title involves the title to, or possession of, real property, or any interest
therein, exclusive original jurisdiction over such action pertained to the RTC, unless the assessed value
of the property did not exceed P20,000.00 or P50,000.00 in proper cases. Reterta vs Mores (2011)
84
The case filed by the spouses was an **action for quieting of title, and nullification of the SPA,
Deed of Real Estate Mortgage, and foreclosure proceedings. While the body of the complaint
consists mainly of allegations of forgery, the PRIMARY object of the spouses was to effectively
free the title from any unauthorized lien imposed upon it. Clearly, the crux of the controversy
chiefly hinges on the question of who has the better title over the subject property. We thus have
established that the case filed by the spouses before the MTC is actually an action for quieting of
title, a real action, the jurisdiction over which is determined by the assessed value of the
property. The assessed value of the subject property as alleged is P4,900.00, which aptly falls within
the jurisdiction of the MTC. Bank of Commerce vs San Pablo.
85
c. If real property is involved, determine the ULTIMATE PURPOSE

of the action:
i. If the ultimate purpose of SP is to acquire possession and
ownership of property, it is a real action;
ii. If purpose of SP is the physical deed of sale/conveyance, it’s a
personal action.
******EG: Under law on sales, execution of a public instrument is
a mode of delivery. Hence, if PP wants DD to execute a notarized deed (specific
performance) of sale so PP will have ownership of the land, that’s a real action
(because there was no prior delivery). *****But if PP already possesses the
land (there is actual delivery, hence, transfer of ownership), but PP cannot register
it because there is no notarized deed of sale, SP here is only wrt to the deed of
sale, apart from ownership, then it is a personal action.86
a) An action for specific performance or. In the alternative, for damages In the amount of P180,000.00
Answer: An action for specific performance or, in the alternative, for damages in the amount
of 180,000.00falls within the jurisdiction of Metropolitan Trial Courts in Metro Manila. Although an
action for specific performance is not capable of pecuniary estimation, since the alternative
demand for damages is capable of pecuniary estimation, it is within the Jurisdiction of the
Metropolitan Trial Courts in Metro Manila. (Sec. 33 of BP 129 as amended by RA No. 7691; Cruz vs.
Tan 87 Phil. 627).
86
Q: A filed with the Metropolitan Trial Court of Manila an action for specific performance against
B, a resident of Quezon City, to compel the latter to execute a deed of conveyance covering a
parcel of land situated in Quezon City having an assessed value of P19,000.00. B received the
summons and a copy of the Complaint on 02 January 2003. On 10 January 2003, B filed a Motion to
Dismiss the Complaint on the ground of lack of jurisdiction contending that the subject matter of the
suit was incapable of pecuniary estimation. The court denied the motion. In due time, B filed with the
Regional Trial Court a Petition for Certiorari praying that the said Order be set aside because the
Metropolitan Trial Court had no jurisdiction over the case. On 13 February 2003, A filed with the
Metropolitan Trial Court a motion to declare B in default. The motion was opposed by B on the
ground that his Petition for Certiorari was still pending.
(a) Was the denial of the Motion to Dismiss the Complaint correct? The denial of the Motion
to Dismiss the Complaint was not correct. Although the assessed value of the parcel of land
involved was P19,000.00, within the jurisdiction of the Metropolitan Trial Court of Manila, the
action filed by A for Specific Performance against B to compel the latter to execute a Deed of
Conveyance of said parcel of land was not capable of pecuniary estimation and, therefore, the
action was within the jurisdiction of Regional Trial Court. (Russel v. Vestil, 304 SCRA 738 [1999];
Copioso v. Copioso, G.R. No. 149243, October 28, 2002; Cabutihan v. Landcenter Construction, 383
SCRA 353 [2002]). ALTERNATIVE ANSWER:
If the action affects title to or possession of real property then it is a real action and jurisdiction is
determined by the assessed value of the property. It is within the jurisdiction therefore of the
Metropolitan Trial Court.
(b) Resolve the Motion to Declare the Defendant in Default. (2003 Bar Question). The Court
could declare B in default because B did not obtain a writ of preliminary injunction or a
temporary restraining order from the Regional Trial Court prohibiting the judge from proceeding in
the case during the pendency of the petition for certiorari. (Sec. 7 of Rule 65; Diaz v. Diaz, 331 SCRA
302 [2000]. ALTERNATIVE ANSWER: The Court should not declare B in default inasmuch as the
jurisdiction of Metropolitan Trial Court was put in issue in the Petition For Certiorari filed with
the Regional Trial Court. The Metropolitan Trial Court should defer further proceedings pending the
2. ******When action is both a real action, and at the same time incapable of PE,
do not consider it as a real action for the purpose of ascertaining JN—only
consider its real nature for the purpose of VENUE. EG:
a. action for annulment of the sale of a land. Why? Consent was vitiated
because he was insane, minor, dead-mute who does not know how to write, or
consent acquired through MVIUF (mistake, violence, etc). Purpose: to reacquire
ownership: there is real property and issue of ownership/possession, hence, a real
action. ******But action of annulment—RIGHT TO ANNUL, which is
incapable of PE. So where do you file it? RTC: incapable of PE.87 In what
place? Where the RP is located! (From Dean Riano)
b. consolidation of ownership’s primary purpose is to get a judicial
order [Art 1601 NCC]—it’s an action for registration, incapable of pecuniary
estimation, therefore RTC.
c. NB: If the action is incapable of pecuniary estimation, but at the same
time it is a real action, check the assessed value, as per Russell vs. Vestil
1999: “While actions under Sec. 33(3) of B.P. 129 are also incapable of pecuniary
estimation, the law specifically mandates that they are cognizable by the MTC,
METC, or MCTC where the assessed value of the real property involved” does
not exceed the jurisdictional amounts, otherwise, it is the Regional Trial Courts
which has JN.
3. Expropriation suit: right to take private property by the government.88
4. In an unlawful detainer case, check the material allegations of the complaint
result of such petition. (Eternal Gardens Memorial Park Corporation v. Court of Appeals, 164 SCRA
421 [1988]).
87
A brings an action in the Metropolitan Trial Court of Manila against B for the annulment of an
extrajudicial foreclosure sale of real property with an assessed value of P50.000.00 located in
Laguna. The complaint alleged prematurity of the sale for the reason that the mortgage was not yet
due. B timely moved to dismiss the case on the ground that the action should have been brought in the
Regional Trial Court of Laguna. Decide with reasons. (3%) SUGGESTED ANSWER:
The motion should be granted. *****The Metropolitan Trial Court of Manila has no
jurisdiction because the action for the annulment of the extrajudicial foreclosure is not capable
of pecuniary estimation and is therefore under the jurisdiction of the Regional Trial Courts. (Russell
v. Vestil 304 SCRA 738, (1999). However, the action for annulment is a personal action and the venue
depends on the residence of either A or B. Hence, it should be brought in the Regional Trial Court of
the place where either of the parties resides. [TOM: Dean Riano said that for the purpose of the venue
where real property is concerned, it should be filed in the place where the real property is located]
88
An EXPROPRIATION suit does not involve the recovery of a sum of money. Rather, it deals
with the exercise by the government of its authority and right to take private property for public use. It
should be stressed that the primary consideration in an expropriation suit is whether the
government or any of its instrumentalities has complied with the requisites for the taking of private
property. Hence, the courts determine the authority of the government entity, the necessity of the expropriation, and the
observance of due process. In the main, the subject of an expropriation suit is the GOVERNMENT'S
EXERCISE OF EMINENT DOMAIN, a matter that is incapable of pecuniary estimation. True, the value
of the property to be expropriated is estimated in monetary terms, for the court is duty-bound to
determine the just compensation for it, but the same is merely incidental to the expropriation
suit. Barangay San Roque vs Pastor (2000)
[Barrazona vs. Judge Reyes]:

a. ******if it says PAY and VACATE or COMPLY WITH THE TERMS
OF THE LEASE and VACATE = go to MTC, since it is an unlawful detainer
case;
b. if it says PAY or VACATE or COMPLY or VACATE, it means that if
you pay/comply, you do not need to vacate, hence, it’s either an action for
collection of a sum of money or specific performance. If the former, look at the
amount; if the latter, it’s incapable of pecuniary estimation, then go to the
RTC.
5. Sale of lots covered by a free patent: the stipulation that the sale is subject to
repurchase by the applicant within a period of five (5) years from the date of
conveyance pursuant to Sec. 119 of CA 141, is deemed integrated and made
part of the deed of sale as prescribed by law. Hence, *****a complaint to
enforce a right granted by law to recover the lot subject of free patent is an action for
specific performance, or if not strictly such action, then it is akin or analogous to
one of specific performance.89
6. Rescission of a contract of sale;90
89
While the deeds of sale of lots covered by a free patent do not explicitly contain the stipulation
that the sale is subject to repurchase by the applicant within a period of five (5) years from the date of
conveyance pursuant to Sec. 119 of CA 141, still, such **legal provision is deemed integrated and
made part of the deed of sale as prescribed by law. Although a contract is the law between the parties, the
provisions of positive law which regulate contracts are deemed written therein and shall limit
and govern the relations between the parties. Hence, *****a complaint to enforce a right granted by
law to recover the lot subject of free patent is an action for specific performance, or if not strictly such action,
then it is akin or analogous to one of specific performance. Such being the case, his action for
specific performance is incapable of pecuniary estimation and cognizable by the RTC. Bautista v.
Lindo, G.R. No. 208232, March 10, 2014.
*****Note that at first blush, it appears that the action filed involves title to or possession
of the lots he sold to respondents. Since the total selling price is less than PhP 20,000, then the MTC, not the
RTC, has jurisdiction over the case. This proposition is **incorrect because the re-acquisition of the
lots is but incidental to and an offshoot of the exercise of the right to redeem said lots pursuant to
Sec. 119 of CA 141. The reconveyance of the title to petitioners is solely dependent on the
exercise of such right to repurchase the lots in question and is not the principal or main relief or remedy
sought. Thus, ***the action of petitioners is, in reality, incapable of pecuniary estimation, and the
reconveyance of the lot is merely the outcome of the performance of the obligation to return the property conformably to the
express provision of CA 141.
90
Amorsolo, a Filipino citizen permanently residing in New York City, filed with the RTC of Lipa
City a Complaint for Rescission of Contract of Sale of Land against Brigido, a resident of Barangay
San Miguel, Sto. Tomas, Batangas. The subject property, located in Barangay Talisay, Lipa City, has
an assessed value of P19,700.00. Appended to the complaint is Amorsolo’s verification and certification of
non-forum shopping executed in New York City, duly notarized by Mr. Joseph Brown, Esq., a
notary public in the State of New York. Brigido filed a motion to dismiss the complaint on the
following grounds: (Bar 2009) *****Rescission of Contract, is incapable of pecuniary estimation
the exclusive original jurisdiction to which is vested by law in the Regional Trial Courts. **The nature
of the action renders the assessed value of the land involved irrelevant.
7. Annulment of a document entitled “DECLARATION OF HEIRS AND

DEED OF CONFIRMATION OF PREVIOUS ORAL PARTITION."91
8. Action for (main case of) INJUNCTION92 (not preliminary injunction); so,
it is RTC that could issue the provisional remedy of preliminary injunction in
connection to the main case of injunction.
9. Petition for declaratory relief;93
10. May MTC issue an order a provisional remedy of support pendent lite in an
action of support? NO. because it involves the issue if RIGHT TO SUPPORT,
which is incapable of PE—it’s under the Family Court (or RTC if there is no FC).
11. Petition to revive a dormant judgment (after 5 years from date of entry and
before 10 years) is incapable of PE.94
Venue of other actions

1. ******Petition for RELIEF of judgment—file in the same court; EG: petition
for relief of judgment of the MTC: file it also in the MTC since it is not a new
complaint—it is an extension of the proceeding; neither is it an appeal.
2. MR and MNT: file it in the same court
3. Annulment of Judgment
a. of the RTC: file it in the CA which has EXCLUSIVE and ORIGINAL
JN over such action [Sec 9, BP 129].
b. of the MTC: file it with the RTC, which has JN over the area.
91
The subject matter of the complaint in this case is annulment of a document denominated as
"DECLARATION OF HEIRS AND DEED OF CONFIRMATION OF PREVIOUS ORAL
PARTITION." The main purpose of petitioners in filing the complaint is to declare null and
void the document in which private respondents declared themselves as the only heirs of the
late spouses Tautho and divided his property among themselves to the exclusion of petitioners
who also claim to be legal heirs and entitled to the property. While the complaint also prays for the
partition of the property, this is just incidental to the main action, which is the declaration of
nullity of the document above-described.
92
b) An action for a writ of injunction. Answer:
b) An action for injunction is not capable of pecuniary estimation and hence falls within
the jurisdiction of the Regional Trial Courts.
93
*****Although title of the action is for quieting of title, the action itself is one for declaratory
relief, which properly falls within the jurisdiction of the RTC pursuant to Rule 63 of the Rules.
Sabitsana vs Muertegui (2013]. NB: look for the assessed value of the property in an action for quieting
of title.
94
Q: A, a resident of Dagupan City, secured a favorable judgment in an ejectment case against X. a
resident of Quezon City, from the Metropolitan Trial Court of Manila. The judgment, entered on 15
June 1991, had not as yet been executed. In July 1996, A decided to enforce the judgment of the
Metropolitan Trial Court of Manila. What is the procedure to be followed by A in enforcing the
Judgment? With what court should A Institute the proceedings? (1997 Bar Question) Answer: A can
enforce the Judgment by another action reviving the judgment because it can no longer be
enforced by motion as the five-year period within which a Judgment may be enforced by motion
has already expired. (Sec. 6 of Rule 39).
A may institute the proceedings in the Regional Trial Court in accordance with the rules of
venue because the enforcement of the Judgment is a personal action incapable of pecuniary estimation.
4. Appeals
a. MTC to RTC under Rule 40 (ordinary appeal). File notice of appeal at
the MTC and pay the docket fee there too.
i. If he loses again, RTC to CA: now file directly a PLEADING with
CA (not a notice of appeal), i.e., a Verified Petition for Review directly with CA
under Rule 42 (this is a mode of appeal, not a special civil action). Why? The
decision of the RTC here is rendered in the exercise of its appellate (vs. original) JN.
ii. What if he wants to raise pure questions of law? *****CA can
still take cognizance of it because it was decided in RTCs exercise of its
appellate JN. Same Rule 42.
iii. ******Action for specific performance filed at the MTC—case
dismissed for lack of JN (this is a dismissal without prejudice, where there should
be no appeal as per Sec 1, Rule 41; however, Sec 8 of Rule 4 allows it to be appealed to
the RTC since it the case was “dismissed without trial” on the merits):
(a) if RTC affirms the dismissal (i.e., it agrees with the MTC
that there was lack of JN), it will take cognizance of the case (if RTC has JN
over it), and shall try the case on the merits as if the case was originally filed
with it. Now. after the trial, RTC dismissed the case, what mode of appeal will
you now use? Use Rule 41—ordinary appeal to CA. Why? Because it is as if it
was originally filed with the RTC (by legal fiction). From the CA, go to SC via
Rule 45.
(b) If RTC reversed the decision, it will remand it to the
MTC for further proceedings.
b. MTC to CA if MTC’s decision is on a land/cadastral proceeding,
because it is a delegated JN (MTC was acting as an RTC).
c. RTC to CA under Rule 41 (ordinary appeal: from a decision of RTC in
the exercise of its original JN, i.e., case was filed in the first instance at the RTC).
How? File a notice of appeal at the RTC and pay the docket fee there too.
***But if you want to raise pure questions of law, go straight to SC,
under Rule 45 which is “Appeal by Certiorari” (Old name: petition for review on
certiorari).
3.1.6. Local and transitory95 actions

Local Action Transitory Action
95
Q: On January 2,1989, Ernani purchased construction materials for his new building in Calamba,
Laguna, from a hardware store located in Batangas City and owned by Daniel. On the same date and
in payment of the materials, Emani issued a Metrobank check (Calamba branch) for P500,000 which
was drawn and signed by him in Calamba. Daniel deposited the check with the Metrobank,
Batangas City branch, but the same was dishonored for “insufficient funds.” Despite several demands,
Ernani failed to make good his check so that a case for violation of B.P. 22 (The Bouncing Checks
Law), after a preliminary investigation thereof was conducted, was filed with the Regional Trial Court
of Batangas City. Ernani moved to quash the case on the ground of lack of jurisdiction,
Venue Must be brought in a particular place where Dependent on the place where the party
the subject property is located, unless there is resides regardless of where the cause of
an agreement to the contrary (Sec. 4, Rule 4) action arose. Subject to Sec. 4, Rule 4.
Privity No privity of contract and the action is Founded on privity of contract between
of founded on privity of estate only (Riano, 2014) the parties whether debt or covenant
contrac (Paper Industries Corporation of the Philippines
t v. Samson, supra)
3.1.7. Actions in rem, in personam and quasi in rem96

1. Preliminary Concept: to understand the concepts in this section, one has to
grasp the following:
a. Personal action vs. Real action: refers to the nature of the subject
matter of the controversy involved. Real/personal actions: determine
venue, jurisdiction, and filing fees;
b. Compared to: Actions in personam, in rem & quasi in rem: which
contending that the case should have been filed with the Regional Trial Court of Calamba, Laguna,
since the check was drawn and signed in Calamba. How would you decide the motion? Explain. (1989
Bar Question) Answer:
Motion to quash is denied. Violation of the Bouncing Checks Law is a transitory or
continuing offense which may be validly tried either in the place where the check was issued or in the
place where the check was dishonored. Since the check in question was dishonored by the Metrobank
in Batangas City, the Regional Trial Court of Batangas City has jurisdiction over the case. (People vs.
Grospe, 157 SCRA 154)
96
Distinguish: (2004 Bar Question)
[] an action in rem from an action quasi in rem: An action in rem is an action against all who
might be minded to make an objection of any sort against the right sought to be established, while an
action quasi in rem is an action against an individual although the purpose of the suit is to subject
his interest in a particular property to the obligation or lien burdening the property. The judgment
rendered in actions in rem binds the whole world, while the judgment rendered in actions quasi in
rem is conclusive only between the parties. (Banco Español FUipinov. Palanca, 37 Phil. 921;
Sandejas v. Robles, 81 Phil. 421.)
[] an action quasi in rem from an action in personam: An action quasi in rem, as stated, is an
action against a person over a particular property or claims relating thereto, while an action in
personam is an action to establish a claim against a person with a judgment that binds him
personally.
[] an action in personam from a personal action: An action in personam, as stated, is an action
against a person on the basis of his personal liability while a personal action is an action where the
plaintiff seeks the recovery of personal property, the enforcement or resolution of a contract or
the recovery of damages. (Hernandez v. Rural Bank of Lucena, Inc., 81 SCRA 75 [1981]).
[] an action in rem from a real action: An action in rem is as stated above, while a real action is
an action affecting title to real property or for the recovery of possession, or for partition or
condemnation of, or foreclosure of a mortgage on, real property. (Rule 4, sec. 2[a]).
[] a personal action from a local action: A personal action is as stated above, while a local action
is that which must be brought in a particular place. Plaintiff in a personal action may file it in the
place where he resides or where the defendant resides, while in a local action, plaintiff has no
choice except to file the action in the place where the property is located.
depend on the BINDING EFFECT of the judgment to be rendered in the

action. In rem/in personam/quasi in rem actions: merely determine who
will be bound by the judgment (effect of judgment)97 ******98
ACTION IN PERSONAM ACTION IN REM ACTION QUASI IN REM
an action AGAINST A an action AGAINST THE Directed against particular persons

PERSON on the basis of THING ITSELF instead of with respect to the res; INDIVIDUAL
his personal liability; A against the person; A proceeding IS NAMED as defendant and the
proceeding to enforce to determine title, status or PURPOSE of the proceeding is to
personal rights and condition of property within SUBJECT HIS INTEREST therein to
obligations brought its borders. the OBLIGATION OR LIEN BURDENING
against the person. THE PROPERTY.
JN over the person of the JN over the person of the defendant is not a prerequisite to confer jurisdiction on
defendant is necessary for the court provided that the court acquires jurisdiction over the res
the court to validly try and (through publication in a newspaper of general circulation)
decide the case
Judgment is binding only judgment is binding binding only upon the litigants,
upon parties impleaded theoretically upon the whole privies, successor in interest but it shall
or their successors-in- world. be executed against a particular
interest but not upon property. The res involved will answer
strangers for the judgment. (only as between the
particular parties to the proceedings and not to
ascertain or cut-off the rights or interests of all
possible claimants )
Action for specific Probate proceeding; ******Action for partition; Action for
performance; Action for Cadastral proceeding; Land accounting; Foreclosure of REM;
breach of contract registration proceeding; preliminary attachment of property.
Action for a sum of marriage annulment cases.
money; for damages
2. Jurisdiction over the res is acquired either (1) by the seizure of the property
under legal process, whereby it is brought into actual custody of the law; or (2)
as a result of the institution of legal proceedings, in which the power of the court is
recognized and made effective. *****Nonetheless, summons must be served upon the
defendant not for the purpose of vesting the court with jurisdiction but merely for
satisfying the due process requirements.99
3. The difference among actions in rem, in personam and quasi in rem is
97
What’s the JN? authority of the court; conferred by law; *****JN on subject matter is substantial,
not procedural. But note that JN over the person and res is procedural (under summons).
Hence, court may dismiss the case motu proprio for lack of JN over the subject matter (SM).
98
*Biaco vs. Philippine Countryside Rural Bank, February 8, 2007
99
**Where the trial court only acquired jurisdiction over the res, its jurisdiction is limited to a rendition of
judgment on the res—it cannot extend its jurisdiction beyond the res and issue a judgment enforcing a
party’s personal liability. In doing so without first having acquired jurisdiction over the person of
petitioner, as it did, the trial court violated her constitutional right to due process, warranting the
annulment of the judgment rendered in the case.
important in determining the following:*****

a. Whether or not jurisdiction over the person of the defendant is
required; and
b. The type of summons to be employed (Gomez v. CA, G.R. No. 127692,
March 10, 2004). See summons.
Actions in personam vs. personal action

1. In an action in personam, jurisdiction over the person of the defendant is
necessary100 for the court to validly try and decide the case. Any judgment of the
court which has no jurisdiction over the person of the defendant is null and void.
2. Personal action vs. Action in personam—Main difference:
a. personal action: for the determination of venue;
b. action in personam: who is liable—a specific person (personam), not the
whole world (rem)
3. Examples:******
a. Unlawful Detainer/Forcible Entry is real action (possession of
property) but it is an action in personam (is directed to a specific person who
deprived you of possession). Why? because the plaintiff seeks to enforce a
personal obligation on the defendant for the latter to vacate the property
subject of the action, restore physical possession thereof to the plaintiff, and
pay actual damages by way of reasonable compensation for his use or occupation of
the property.
b. Injunction.101
c. ***Annulment of marriage is a personal action, but it is an action in
rem (against the whole world, as to the STATUS of the person)
d. Damages is personal and in personam (directed against a specific
person who is liable for the damages).
100
In an action strictly in personam, personal service on the defendant is the preferred mode of service,
that is, by handing a copy of the summons to the defendant in person. If defendant, for excusable
reasons, cannot be served with the summons within a reasonable period, then substituted service can
be resorted to. While substituted service of summons is permitted, “it is extraordinary in character
and in derogation of the usual method of service.” Hence, it must faithfully and strictly comply
with the prescribed requirements and circumstances authorized by the rules. Indeed, “compliance with
the rules regarding the service of summons is as much important as the issue of due process as of
jurisdiction.” Manotoc vs. Court of Appeals, August 16, 2006
101
TRUE or FALSE. A suit for injunction is an action in rem. (2009 Bar Question)
SUGGESTED ANSWER: FALSE. A suit for injunction is an action in personam. In the
early case of Auyong Hian v. Court of Tax Appeals (59 SCRA 110 [1974], it was held that a
restraining order, like an injunction, operates upon a person. It is granted in the exercise of
equity jurisdiction and has no in rem effect to invalidate an act done in contempt of an order of the
court except where by statutory authorization, the decree is so framed as to act in rem on
property. (Air Materiel Wing Savings and Loan Association, Inc. v. Manay, 535 SCRA356 [2007]).
Actions in rem
1. It is valid against the whole world, not just to a specific person, like
annulment of marriage.
2. Common matters for rem & quasi in rem: In a proceeding in rem or
quasi in rem, jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court provided that the court acquires
jurisdiction over the res [hence, the ruling is limited to the res102] Jurisdiction
over the res is acquired either103
a. by the seizure of the property under legal process, whereby it is brought into
actual custody of the law; or
b. as a result of the institution of legal proceedings, in which the power of
the court is recognized and made effective.
******Is summons still served upon the defendant? YES. For what
purpose? Summons must be served upon the defendant not for the purpose
of vesting the court with jurisdiction but merely for satisfying the DUE
PROCESS requirements.
3. Application: Rule on suit against non-residents and the type of action [Perkins vs
Dizon (1939)]:
a. GR: ******The general rule is that a suit against a non-resident cannot
be entertained by a Philippine court.
b. XPN: Where, however, the action is in rem or quasi in rem in connection
with property located in the Philippines, the court acquires jurisdiction over
the res, and its jurisdiction over the person of the non-resident is non-
essential.
c. NB: POTENTIAL CUSTODY is enough: In order that the court may
exercise power over the res, it is not necessary that the court should take actual
custody of the property, POTENTIAL CUSTODY thereof being sufficient.
There is potential custody when, from the nature of the action brought, the
power of the court over the property is impliedly recognized by law. However, the
action being quasi in rem and notice having been made by publication, the relief that may
be granted by the Philippine court must be confined to the res, it having no
jurisdiction to render a personal judgment against the non-resident.
d. RATIONALE: It is in virtue of the State's jurisdiction over the
property of the non-resident situated within its limits that its tribunals can
102
*In a proceeding in rem or quasi in rem, the only relief that may be granted by the court against a
defendant over whose person it has not acquired jurisdiction either by valid service of summons or by
voluntary submission to its jurisdiction, is limited to the res. It cannot extend its jurisdiction beyond
the res and issue a judgment enforcing petitioner’s personal liability. In doing so without first having acquired
jurisdiction over the person of petitioner, as it did, the trial court violated her constitutional right to due
process, warranting the annulment of the judgment rendered in the case. Biaco vs Philippine
Countryside Rural Bank (2007)
103
[Biaco vs Philippine Countryside Rural Bank (2007)]
inquire into the non-resident's obligations to its own citizens, and the inquiry can then be carried
only to the extent necessary to control the disposition of the property. *****Hence, If the
non-resident has no property in the State, there is nothing upon which the
tribunals can adjudicate.
Actions quasi in rem

1. What it is: no need to acquire JN over the person because it is directed to a
property. It is governed by principles governing actions in rem.104
2. Examples [Valmonte vs CA; Banco Espanol case]*****
a. action for PARTITION: quasi in rem, but real action for purpose of
venue;
b. action for ACCOUNTING of property;
c. PRELIMINARY ATTACHMENT of property;
d. FORECLOSURE of REM:105 incapable of PE (RTC), but file where
real property is found because it is a real action; no need to acquire JN over the
person because it is directed to a property (hence, quasi-in-rem); NB: In an action
to foreclose a mortgage against a nonresident defendant who fails to submit
himself to the jurisdiction of the court, no adjudication can be made which
involves a determination of a personal liability of either party arising out of
the contract of mortgage;106
104
While it is true that in proceedings of this character, if the defendant for whom publication is made
appears, the action becomes as to him a personal action and is conducted as such. This, however,
does not affect the proposition that where the defendant fails to appear, the action is quasi in
rem and it should therefore be considered with reference to the principles governing actions in rem. El Banco
Espanol vs Palanca (1918)
105
The action to foreclose a mortgage is quasi in rem. The property itself is the sole thing which is
impleaded and which is the subject of the exercise of judicial power. The jurisdiction of the court is
derived from the power which it possesses over the property. Thus, jurisdiction over the person
is non-essential. Jurisdiction over the property which is the subject of the litigation may result either
from a seizure of the property under legal process, whereby it is brought into the actual custody of the law, or
it may result from the institution of legal proceedings wherein, under special provisions of law, the
power of the court over the property is recognized and made effective. In the latter case the property, though
at all times within the potential power of the court, may never be taken into actual custody at all.
106
Banco Español-Filipino vs. Palanca, March 26, 1918: Where the defendant in a mortgage
foreclosure lives out of the Islands and refuses to appear or otherwise submit himself to the authority of the
court, the **jurisdiction of the latter is LIMITED to the mortgaged property, with respect to
which the jurisdiction of the court is based upon the fact that the property is located within the
district and that the court, under the provisions of law applicable in such cases, is vested with the
power to subject the property to the obligation created by the mortgage. In such case PERSONAL
JURISDICTION OVER THE NONRESIDENT DEFENDANT is NONESSENTIAL and in fact cannot
be acquired. **The failure of the clerk to send notice by mail to the nonresident defendant in a foreclosure
proceeding, as required by an order of the court, does not defeat the jurisdiction of the court over the
mortgaged property. **In an action to foreclose a mortgage against a nonresident defendant who
fails to submit himself to the jurisdiction of the court, no adjudication can be made which
involves a determination of a personal liability of either party arising out of the contract of
mortgage… In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in
e. When a nonresident defendant is sued in the Philippine courts and it

appears, by the complaint or by affidavits, that the action relates to real or
personal property within the Philippines in which said defendant has or
claims a lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding such person from any interest therein;107
*****the relief that may be granted by the Philippine court must be CONFINED TO
all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of
Civil Procedure, and to make an order requiring the defendant to pay the money into court. This
step is a NECESSARY PRECURSOR of the order of sale. The mere fact that the court thus
ascertains the amount of the debt and orders the defendant to pay it into court does NOT
CONSTITUTE the entering of a JUDGMENT AGAINST HIM AS UPON A PERSONAL LIABILITY.
In an action to foreclose a mortgage against a nonresident, some notification of the
proceedings must be given to the defendant. Under statutes generally prevailing, this notification
commonly takes the form of publication in a newspaper of general circulation and the sending of
notice, by mail, by which means the owner is admonished that his property is the subject of judicial
proceedings. The provisions of law providing for notice of this character must be complied with. In a
foreclosure proceeding against a nonresident defendant, the court is required to make an order for
the clerk to mail a copy of the summons and complaint to the defendant at his last place of residence
if known. In the present case an order was made directing the clerk to mail the required copy to the
defendant at Amoy China. No evidence appeared of record showing that such notice had in fact been mailed by the
clerk; but publication was regularly made in a periodical as the law requires. Held: **That the making of the
order by the court constituted a compliance with the law, in so far as necessary to constitute DUE
PROCESS of law, and that if the clerk failed to send the notice, his dereliction in the
performance of his duty was an IRREGULARITY which DID NOT CONSTITUTE AN
INFRINGMENT of the provision of the Philippine Bill declaring that no person shall be deprived of
property without due process of law. **Where the court makes an order for the clerk to mail notice
of a foreclosure proceeding to a nonresident defendant it will be presumed in the absence of
affirmative proof to the contrary that the duty was performed.
In a mortgage foreclosure proceeding the property was bought in at the public sale by the
plaintiff, the mortgagee, at a price much below the upset value agreed upon in the
mortgage. Held: That if any liability was incurred by the plaintiff by purchasing at a price below
that which had been agreed upon as the upset price, **such liability was of a personal nature and
could not be the subject of adjudication in a foreclosure against a nonresident defendant who did not come in and
submit to the jurisdiction of the court. Such act of the plaintiff was, therefore, not such a prejudice to
the defendant as would justify the opening of the judgment of foreclosure.
107
When a nonresident defendant is sued in the Philippine courts and it appears, by the complaint or
by affidavits, that the action relates to real or personal property within the Philippines in which said
defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding such person from any interest therein, service of summons
may be made by PUBLICATION. The action being QUASI IN REM, the court has jurisdiction to
try the same even if it can acquire no jurisdiction over the person of the non-resident. **In order to
satisfy the constitutional requirement of due process, summons has been served upon her by publication. There
is no question as to the adequacy of the publication to the petitioner's last known place of residence
in the United States. But, of course, the action being quasi in rem and notice having been made
by publication, the **relief that may be granted by the Philippine court must be CONFINED TO
THE RES, it having no jurisdiction to render a personal judgment against the nonresident. In the amended
complaint filed by E. A. P., no money judgment or other relief in personam is prayed for against the
petitioner. The only relief sought therein is that she be declared to be without any interest in the shares
in controversy and that she be excluded from any claim thereto. Perkins vs. Dizon et al., November 16,
1939
THE RES, it having no jurisdiction to render a personal judgment against the

nonresident.
——————————————
Review of common actions that may confuse you

1. Unlawful Detainer/Forcible Entry is real action (possession of property) but
it is an action in personam (is directed to a specific person who deprived you of
possession). Why? because the plaintiff seeks to enforce a personal obligation
on the defendant for the latter to vacate the property subject of the action,
restore physical possession thereof to the plaintiff, and pay actual damages by
way of reasonable compensation for his use or occupation of the property.
2. ***Annulment of marriage is a personal action, but it is an action in rem
(against the whole world, as to the STATUS of the person)
ACTION FOR DAMAGES (A4D)

1. A4D is personal and in personam (directed against a specific person who is
liable for the damages). It is always a personal action for purposes of venue.
2. Possible confusion: when an act of negligence also constitutes a crime.
Because one commits a crime not just by means of DOLO but also by means of
CULPA.
a. if it’s a civil case for quasi-delict: it’s a personal action; follow the
choices of the plaintiff: his residence or that of the defendant;
b. if it’s a criminal case: where the essential elements of the felony
occurred: venue here is also JURISDICTIONAL—file it where the accident
happened.
———————————————————————————————
3.1.8. Independent Civil Actions

1. These are **actions based on Articles 32, 33, 34 and 2176 of the Civil Code.
They shall PROCEED INDEPENDENTLY108 of the criminal action and shall
require only a PREPONDERANCE of evidence. In no case, however, may the
108
BAR 2017: Q: Tomas was criminally charged with serious physical injuries allegedly committed
against Darvin. During the pendency of the criminal case, Darvin filed a separate civil action for
damages based on the injuries he had sustained. Tomas filed a motion to dismiss the separate civil
action on the ground of litis pendentia, pointing out that when the criminal action was filed against him,
the civil action to recover the civil liability from the offense charged was also deemed instituted. He
insisted that the basis of the separate civil action was the very same act that gave rise to the criminal
action. Rule on Tomas' motion to dismiss, with brief reasons. SUGGESTED ANSWER: Tomas’s
motion to dismiss on the ground of litis pendentia should be denied. In cases of physical injuries, a
civil action for damages, entirely separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall proceed independently of the criminal
action (Art. 33, Civil Code; S3 R111) and hence may not be dismissed on the ground of litis
pendentia. (Jurist Review Center, Inc.)
offended party RECOVER DAMAGES TWICE for the same act or omission charged in the
criminal action (Sec. 3, Rule 111).
a. Those based on Articles 32, 33 and 34 arise from law, while those based
on Article 2176 of the Civil Code arise from quasi-delicts.
b. Under Article 2177 of the Civil Code, the responsibility arising from
quasi-delict “is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code.” Article 2177 provides for the alternative
remedies the plaintiff may choose from in case the obligation has the possibility
of arising indirectly from the delict/crime or directly from quasi-delict/tort.
c. Under the 2000 Rules of Criminal Procedure, only the civil liability of the
accused arising from the crime charged is deemed included in the a criminal
action. Thus, the civil actions referred to in the above stated provisions of the law
shall remain “separate, distinct and independent” of any criminal prosecution
which may be based on the same act (Riano, 2011, citing Philippine Rabbit Bus
Lines, Inc. v. People, G.R. No. 147703, April 14, 2004).
2. TWO SEPARATE CIVIL LIABILITIES that may arise from a SINGLE ACT
OR OMISSION
a. Civil liability EX DELICTO; or
b. INDEPENDENT civil liabilities such as those
i. not arising from an act or omission complained of as felony (EG:,
culpa contractual or obligations arising from law; the intentional torts; and culpa aquiliana); or
ii. where the injured party is granted a right to file an action
independent and distinct from the criminal action (L.G. Foods Corporation v.
Pagapong-Agraviador, G.R. No. 158995, September 26, 2006).
3. Victims of negligence or their heirs have a choice between an action to enforce
the civil liability arising from culpa criminal under Article 100 of the Revised
Penal Code, and an action for quasi-delict (culpa aquiliana) under Articles
2176 to 2194 of the Civil Code.
a. If, as here, the action chosen is for quasi-delict, the plaintiff may hold
the employer liable for the negligent act of its employee, subject to the employer's
defense of exercise of the diligence of a good father of the family.
b. On the other hand, if the action chosen is for culpa criminal, the
plaintiff can hold the employer subsidiarily liable only upon proof of prior
conviction of its employee (Id.).
4. CONSEQUENCES of the independent character of actions under Articles
32, 33, 34 and 2176 of the Civil Code
a. The right to bring the foregoing actions based on the Civil Code NEED
NOT BE RESERVED in the criminal prosecution, since they are not deemed
included therein. (cf. NB, infra, which appears to be contradictory)
b. The institution or the waiver of the right to file a separate civil
action arising from the crime charged does NOT EXTINGUISH the right to
bring an independent civil action.
c. Even if a civil action is filed separately, the ex-delicto civil liability in the
criminal prosecution REMAINS (Riano, 2011).

*NB: The "independent" character of these civil actions does not do
away with the reservation requirement. In other words, prior reservation is a
condition sine qua non before any of these independent civil actions can be instituted. (San
Ildefonso Lines, Inc. v. CA, G.R. No. 119771, April 24, 1998) Otherwise, they will be
deemed to have been instituted with the criminal case (Hambon v. CA, G.R.
No. 122150, March 17, 2003).
5. When to make the RESERVATION: It is to be made BEFORE the
prosecution starts presenting its evidence and under circumstances that
would afford the offended party a REASONABLE OPPORTUNITY to make such
reservation (Section 1(a), Rule 111).
[] Effect of failure to make reservation in the criminal action: it is NOT A
WAIVER of the right to file a separate and independent civil action based
on these articles of the Civil Code (Casupanan v. Laroya, G.R. No. 145391,
August26, 2002).
6. Effect of acquittal or the extinction of the penal action on the civil action or
civil liability—The extinction of the penal action does not carry with it the
extinction of the civil action where:
a. The acquittal is based on reasonable doubt;
b. The court declares that the liability of the accused is only civil;
c. The civil liability of the accused does not arise from or is not based
upon the crime of which the accused was acquitted. (Sec. 2, Rule 111; Riano,
2011, citing Ching v. Nicdao, April 27, 2007).
7. Application: It bears stressing, as a second point, that a **forfeiture case
under RA 1379 arises out of a cause of action separate and different from a
plunder case, thus negating the notion that the crime of plunder charged in
Crim. Case No. 28107 absorbs the forfeiture cases.
a. 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.
In the language of Sec. 4 of RA 7080, for purposes of establishing the crime of
plunder, it is “sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy [to amass,
accumulate or acquire ill-gotten wealth].”
b. 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. As correctly formulated by the Solicitor General, 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. Garcia vs.
Sandiganbayan, October 12, 2009
———————————————————————————————
All about DEATH
SUMMARY OF THE Effect of the death of a party upon a pending action 91

Claims that survive; claims that do not survive 91
Effect of death of the defendant on civil cases 91
Effect of death of the accused or convict on the civil action 92
Effect of death of the offended party to the criminal action. 99
———————————————————————————————
SUMMARY OF THE EFFECT OF THE DEATH OF A PARTY UPON A

PENDING ACTION
(1999 BAR QUESTION)******
1. Purely personal action – the death of either of the parties extinguishes the claim
and the action is dismissed.
2. Action that is not purely personal – claim is not extinguished and the party
should be substituted by his heirs, executor or administrator. In case of
minor heirs, the court may appoint a guardian ad litem for them.
3. Action for recovery of money arising from contract and the defendant dies
before entry of final judgment – it shall not be dismissed but shall instead be
allowed to continue until entry of judgment. A favorable judgment obtained by
the plaintiff shall be enforced in the manner provided in the rules for prosecuting
claims against the estate of a deceased person (Sec. 20, Rule 3).
4. Claims which survive death of accused: claim for civil liability survives
notwithstanding death of accused if the same may also be based on a source
of obligation other than delict (contract, law, quasi-contract, quasi-delict);
Separate civil action may be enforced either against [People vs. Bayotas, 236 SCRA
239 [1994]******
a. Estate of accused (contract; Rule 86)
b. Executor/administrator (law, quasi-contract, quasi-delict; Rule
87)109
Claims that survive; claims that do not survive

Claims that survive Claims that do NOT survive
109
*Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the
notice to creditors required under Rule 86. These actions, being civil, survive the death of the decedent
and may be commenced against the administrator pursuant to Section 1, Rule 87. [Hilado vs. Court of
Appeals, G.R. No. 164108, May 8, 2009]
1. Recovery of contractual money /claims (oral or written); 1. Purely Personal

2. Recovery/protection of property rights; (EG: Legal
3. Recovery of real or personal property or interest; Separation);
4. Enforcement of lien; Recovery of damages for an injury to person or 2. Performance that
property and suits by reason of the alleged tortuous acts of the cannot be purely
defendant (Board of Liquidators v. Kalaw, G.R. No. L-18805, August 14, delegated;
1967); 3. Claim that cannot
5. Actions and obligations arising from delicts (Aguas v. Llemos, G.R. No. be instituted by
L-18107, August 30, 1962); executor or
6. Ejectment case (Tanhueco v. Aguilar, G.R. No. L-30369, May 29, 1970). administrator.
[] Criterion (Bonilla v. Barcena): The question as to whether an action survives or

not depends on the nature of the action and the damage sued for.
1. 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, 2
2. 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 (Memoracion Z.
Cruz v. Oswaldo Z. Cruz, G.R. No. 173292, September 1, 2010).
Effect of death110 of the defendant on civil cases

******
1. EFFECT OF DEATH OF PARTY-LITIGANT [Rule 3]
a. Duty of counsel upon the death of a party to a pending action, where the
110
A. ******What is the effect of the death of a party upon a pending action? (2%) When the
claim in a pending action is purely personal, the death of either of the parties extinguishes the claim
and the action is dismissed. When the claim is not purely personal and is not thereby
extinguished, the party should be substituted by his heirs or his executor or administrator. (Sec. 16,
Rule 3, 1997 Rules) If 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 shall be enforced in the manner provided
in the rules for prosecuting claims against the estate of a deceased person. (Sec. 20, Rule 3, 1997
Rules)
B. When A (buyer) failed to pay the remaining balance of the contract price after it became due
and demandable, B (seller) sued him for collection before the RTC. After both parties submitted
their respective evidence, A perished in a plane accident. Consequently, his heirs brought an action for
the settlement of his estate and moved for the dismissal of the collection suit. Will you grant the
motion? Explain. (2%) No, because the action will not be dismissed but shall instead be allowed to
continue until entry of final judgment. (Id.)
C. Will your answer be the same if A died while the case is already on appeal to the Court
of Appeals? Explain. (2%) No [TOM: but the explanation means YES]. If A died while the case was
already on appeal in the Court of Appeals, the case will continue because there is no entry yet of
final judgment. (Id.)
D. In the same case, what is the effect if B died before the RTC has rendered judgment? (2%)
The effect is the same. The action will not be dismissed but will be allowed to continue until
entry of final judgment. (Id.)
claim is not thereby extinguished:

i. inform the court within thirty (30) days after such death or the
fact thereof, and
ii. to give the name and address of his legal representative or
representatives.
b. Effect of failure of counsel to comply with this: it shall be a ground for
disciplinary action.111
c. Who substitutes the dead party? 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.
i. The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice.
ii. The purpose behind the rule on substitution of parties is the
protection of the right of every party to due process. It is to ensure that the
deceased would continue to be properly represented in the suit through the
duly appointed legal representative of the estate (Torres v. CA, G.R. No. 120138,
September 5, 1997; Vda. De Salazar v. CA, G.R. No. 121510 November 23, 1995).
iii. *****The substitute defendant need not be summoned. The
order of substitution shall be served upon the parties substituted for the court to
acquire jurisdiction over the substitute party (Riano, 2014). If there is notice of death,
the court should await the appointment of legal representative; otherwise,
subsequent proceedings are void.
b. Effect of non-compliance with the rules on substitution
111
Q: A filed a complaint for the recovery of ownership of land against B who was represented by her
counsel X. In the course of the trial, B died. However, X failed to notify the court of B's death. Hie
court proceeded to hear the case and rendered judgment against B. After the Judgment became final, a
writ of execution was issued against C, who being B's sole heir, acquired the property.
1. If you were counsel of C, what course of action would you take? [3%] As counsel of C, I
would move to set aside the writ of execution and the judgment for lack of jurisdiction and lack
of due process in the same court because the judgment is void. If X had notified the court of B's
death, the court would have ordered the substitution of the deceased by C, the sole heir of B. (Sec.
16 of Rule 3) The court acquired no jurisdiction over C upon whom the trial and the Judgment
are not binding. (Ferreira vs. Ibarra Vda. de Gonzales, 104 Phil. 143; Vda. de la Cruz vs. Court of
Appeals, 88 SCRA 695; Lawas vs. Court of Appeals, 146 SCRA 173.) I could also file an action to
annul the judgment for lack of jurisdiction because C, as the successor of B, was deprived of due
process and should have been heard before judgment. (Rule 47, 1997 Rules of Civil Procedure.)
ALTERNATIVE ANSWER: While there are decisions of the Supreme Court which hold that if the
lawyer failed to notify the court of his client's death, the court may proceed even without substitution
of heirs and the judgment is valid and binding on the heirs of the deceased (Florendo vs, Coloma, 129
SCRA 304 and other cases.), as counsel of C, I will assail the judgment and execution for lack of due
process.
2. ******Did the failure of counsel X to inform the court of B’s death constitute direct
contempt? (2%) (1998 Bar Question) No. It is not direct contempt under Sec. 1 of Rule 71, but it is
indirect contempt within the purview of Sec. 3 of Rule 71. The lawyer can also be the subject of
disciplinary action. (Sec. 16, Rule 3,1997 Rules of Civil Procedure.)
i. GR: It renders the proceedings of the trial court infirm because the
court acquired no jurisdiction over the person of the legal representative (Brioso
v. Rili-Mariano, G.R. No. 132765, January 31, 2003). Non-compliance therewith
results in the undeniable violation of the right to due process of those who,
though not duly notified of the proceedings, are substantially affected by the
decision rendered therein (Vda. De Salazar v. CA, G.R. No. 121510, November
23, 1995).
ii. XPNs:
a) Even if there is non-compliance with the rules on
substitution but the heirs themselves voluntarily appeared, participated in the
case and presented evidence in defense of deceased defendant, the action does not
deprive the court of jurisdiction (Vda. De Salazar v. CA, G.R. No. 121510,
November 23, 1995).
b) *****In ejectment cases where the counsel fails to inform
the court of the death of his client and thereby results to the non-substitution of
the deceased by his legal representatives, the action does not deprive the court of
jurisdiction. The decision of the court is nevertheless binding upon the
successors-in-interest of the deceased. A judgment in an ejectment case may be
enforced not only against defendants but also against the members of their
family, their relatives, or privies who derived their right of possession from
the deceased defendant (Vda. De Salazar v. CA, G.R. No. 121510, November 23,
1995 citing Florendo Jr. v. Coloma, G.R. No. L-60544, May 19, 1984).
e. What happens when 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.112NB: The court charges in procuring such appointment, if defrayed
by the opposing party, may be recovered as costs.
f. When the defendant dies, in contractual money claims, i.e., action for
recovery of money arising from contract, express or implied, before entry of final
112
BAR 2016: Q: Chika sued Gringo, a Venezuelan, for a sum of money. The Metropolitan Trial Court
of Manila (MeTC) rendered a decision ordering Gringo to pay Chika P50,000.00 plus legal interest.
During its pendency of the appeal before the RTC, Gringo died of acute hemorrhagic pancreatitis.
Atty. Perfecto, counsel of Gringo, filed a manifestation attaching the death certificate of Gringo
and informing the RTC that he cannot substitute the heirs since Gringo did not disclose any
information on his family. As counsel for Chika, what remedy can you recommend to your client so
the case can move forward and she can eventually recover her money? Explain. SUGGESTED
ANSWER: The remedy I can recommend to my client Chika is to file a petition for settlement of
the estate of Gringo and for the appointment of an administrator. Chika as a creditor is an
interested person who can file the petition for settlement of Gringo’s estate. Once the
administrator is appointed, I will move that the administrator be substituted as the defendant. I
will also file my claim against Gringo as a contingent claim in the probate proceedings pursuant to Rule
86 of the Rules of Court. (Jurist Review Center, Inc.)
judgment: it shall not be dismissed but shall instead be allowed to continue

until entry of final judgment.
g. A favorable judgment obtained by the plaintiff shall be prosecuted as a
claim against the estate of the deceased person.
2. Effect of death on the defendant in civil case:
a. When the action is for recovery of money arising from contract, and
defendant dies before entry of final judgment, it shall not be dismissed but
shall instead be allowed to continue until entry of final judgment. A favorable
judgment obtained by the plaintiff shall be enforced under Rule 86113 (Sec. 20,
113
Q: Cresencio sued Dioscoro for collection of a sum of money. During the trial, but after the
presentation of plaintiffs evidence, Dioscoro died. Atty. Cruz, Dioscoro’s counsel, then filed a motion
to dismiss the action on the ground of his client’s death. The court denied the motion to dismiss
and instead, directed counsel to furnish the court with the names and addresses of Dioscoro’s heirs
and ordered that the designated administrator of Dioscoro’s estate be substituted as
representative party. After trial, the court rendered judgment in favor of Cresencio. When the decision
had become final and executory, Cresencio moved for the issuance of a writ of execution against
Dioscoro’s estate to enforce his judgment claim. The court issued the writ of execution. Was
the court’s issuance of the writ of execution proper? Explain. (2%) SUGGESTED ANSWER:
NO, the trial court's issuing the writ of execution is not proper and in excess of jurisdiction,
since the judgment obligor is already dead when the writ was issued. *****The judgment for money
may only be enforced against the estate of the deceased defendant in the probate proceedings, by
way of a claim filed with the probate court in accordance with Rule 86 of the Rules of Court.
Cresencio should enforce that judgment in his favor in the settlement proceedings of the estate
of Dioscoro as a money claim in accordance with Rule 86 or Rule 88 as the case may be.
Rule 3)114, that is, as a money claim115 to the estate proceedings of the deceased
defendant.116 Note than an older bar problem provides that an action for money
114
Q: Prince Chong entered into a lease contract with King Kong over a commercial building where
the former conducted his hardware business. The lease contract stipulated, among others, a monthly
rental of P50,000.00 for a four (4) – year period commencing on January 1, 2010. On January 1,
2013, Prince Chong died. Kin II Chong was appointed administrator of the estate of Prince Chong,
but the former failed to pay the rentals for the months of January to June 2013 despite King Kong’s
written demands. Thus, on July 1, 2013, King Kong filed with the Regional Trial Court (RTC) an
action for rescission of contract with damages and payment of accrued rentals as of June 30,
2013. (2014)
a. Can KinII Chong move to dismiss the complaint on the ground that the RTC is without
jurisdiction since the amount claimed is only P300,000.00? A: NO. Kin II Chong cannot move to
dismiss the Complaint. An action for rescission of contract with damages and payment of accrued
rentals is considered incapable of pecuniary estimation and therefore cognizable by the Regional
Trial Court. (Ceferina De Ungria v. Court of Appeals, G.R. No. 165777, July 25, 2011).
b. If the rentals accrued during the lifetime of Prince Chong, and King Kong also filed the
complaint for sum of money during that time, will the action be dismissible upon Prince Chong’s
death during the pendency of the case? A: NO. The action will not be dismissible upon Prince
Chong’s death during the pendency of the case. When the action is for recovery of money arising
from contract, and 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 shall be enforced
under Rule 86 (Sec. 20, Rule 3). Relative thereto, since the complaint for sum of money filed by
King Kong survives the death of Prince Chong, the case shall not be dismissed and the Court
shall merely order the substitution of the deceased defendant. (Atty. Rogelio E. Sarsaba v. Fe
Vda. De Te, G.R. No. 175910, July 30, 2009).
115
If the judgment debtor dies after entry of judgment, execution of a money judgment may be done
by: (2012 BAR)
a. presenting the judgment as a claim for payment against the estate in a special
proceeding.
b. filing a claim for the money judgment with the special administrator of the estate of the debtor.
c. filing a claim for the money judgment with the debtor's successor in interest.
d. moveforsubstitutionoftheheirsofthedebtorandsecureawritofexecution.
116
Q: PJ engaged the services of Atty. ST to represent him in a civil case filed by OP against him
which was docketed as Civil Case No. 123. A retainership agreement was executed between PJ and
Atty. ST whereby PJ promised to pay Atty. ST a retainer sum of P24,000.00 a year and to transfer the
ownership of a parcel of land to Atty. ST after presentation of PJ's evidence. PJ did not comply with
his undertaking. Atty. ST filed a case against PJ which was docketed as Civil Case No. 456. During
the trial of Civil Case No. 456, PJ died.
1) Is the death of PJ a valid ground to dismiss the money claim of Atty. ST in Civil Case
No. 456? Explain. (2%) No. Undo: Sec. 20. Rule 3, 1997 Rules of Civil Procedure, 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 is 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 shall be enforced in the manner especially provided in the
Rules for prosecuting claims against the estate of a deceased person.
2) Will your answer be the same with respect to the real property being claimed by Atty. ST in
Civil Case No. 456? Explain. (2%) (2000 Bar Question) Yes, my answer is the same. An action to
recover real property in any event survives the death of the defendant (Sec. 1, Rule 87, Rules of
Court). However, a favorable Judgment may be enforced in accordance with Sec. 7(b) Rule 39 (1997
should be dismissed and prosecuted as a money claim against the

decedent’s estate. However, if the surviving spouse, who was appointed
administratrix of the estate, does not object to the trial on the merits and does
not appeal from the decision, she is deemed to have waived the right to have
the claim litigated in the estate proceedings. Moreover, she is estopped from
questioning the court's jurisdiction.117
[] If the levy on defendant’s property was done before he died, the same is
valid. It may be sold for the satisfaction of the judgment and the surplus shall be
accounted for by the sheriff to the corresponding executor or administrator. (Sec.
7-C of Rule 39).118
Rules of Civil Procedure) against the executor or administrator or successor in interest of the
deceased.
117
Q: A filed a complaint against Y with the RTC of Argao, Cebu, for payment of a promissory note
in the- sum of P50.000.00, for liquidated damages of P5.000.00 and attorney’s fees of P5.000.00. After
he filed his answer, Y died, but his lawyer did not file a motion to dismiss. In the meantime, Y’s
widow filed with the above court a special proceeding for the settlement of the intestate estate of Y.
The widow, Z, was appointed the administratrix of the estate. A filed in the civil case a motion
to have Y substituted by the administratrix; the latter did not object. The court granted the motion.
Trial on the merits was had. In due course, the court rendered a decision in favor of A. At the time it
was rendered, the period to file claims in the intestate estate of Y had already lapsed. The
administratrix, X, did not appeal from the decision; and after it became final. A moved for the
execution of judgment, Z opposed the motion contending that the decision is void because the claim
does not survive. The case should have been dismissed upon the death of Y since upon his death, the
court lost jurisdiction over the case. (1991 Bar Question)
a) Rule on the issue. Answer: Since Y died before final Judgment in the RTC, the action for
money should have been dismissed and prosecuted as a money claim against his estate. However,
since the widow. Z, who was appointed administratrix of the estate, did not object to the trial on the
merits and did not appeal from the decision, she is deemed to have waived the right to have the claim
litigated in the estate proceedings. Moreover, she is estopped from questioning the court's jurisdiction.
Hence, the decision is valid. (Sec. 21 of Rule 3; Ignacio v. Pambusco, 20 SCRA 126; Echaus u. Blanco.
179 SCRA 704)
b) If the opposition is without merit, can the writ of execution be validly issued? Answer: No,
because a judgment for money cannot be enforced by a writ of execution against the estate of the
deceased which is in custodia legis. (Sec. 7 of Rule 39; Paredes v. Moya, 61 SCRA 527)
c) If it cannot be issued, what is the remedy of A? Answer: His remedy is to file a money
claim against the estate of Y based on the judgment. ******Although the period for filing money
claims has already lapsed, the same may be allowed before an order of distribution is entered.
(Secs. 2 and 5 of Rule 86; Echaus v. Blanco, supra)
118
Q: (a) Plaintiff sued to recover an unpaid loan and was awarded P333,000.00 by the Regional Trial
Court of Manila. Defendant did not appeal within the period allowed by law. He died six days after the
lapse of the period to appeal. Forthwith, a petition for the settlement of his estate was properly filed
with the Regional Trial Court of Pampanga where an inventory of all his assets was filed and
correspondingly approved. Thereafter, plaintiff filed a motion for execution with the Manila court,
contending therein that the motion was legally justified because the defendant died after the judgment
in the Manila court had become final. Resolve the motion and state your reasons. (1992 Bar Question)
Suggested Answer: Motion for execution denied. *****Although the defendant died after the
judgment had become final and executory, it cannot be enforced by a writ of execution against
the estate of the deceased which is in custodia legis. The judgment should be filed as a proven
money claim with the Regional Trial Court of Pampanga. [Paredes v. Moya, 61 SCRA 527)
b. An action to recover real property also survives the death of the

defendant (Sec. 1, Rule 87, Rules of Court). However, a favorable judgment may be
enforced in accordance with Sec. 7(b) Rule 39 (1997 Rules of Civil Procedure)
against the executor or administrator or successor in interest of the
deceased.
c. Ejectment cases. Even if there is no substitution of party upon the death
of the defendant, the case survives and the final judgment binds his
successors-in-interest.119
d. Quasi-delict cases: the claim survives the death of the defendant and
need not be presented as a claim against the estate.120
3. [] RULE 39. 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;
(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
(b) Under the same set of facts as (a), a writ of execution was issued by the Manila court upon
proper motion three days after the lapse of the period to appeal. The corresponding levy on execution
was duly effected on defendant’s parcel of land worth P666.000.00 a day before the defendant died.
Would it be proper, on motion, to lift the levy on defendant’s property? State the reasons for your
answer. Suggested Answer: No, since the levy on execution was duly effected on defendant’s parcel
of land a day before the defendant died, it was valid. The land may be sold for the satisfaction
of the judgment and the surplus shall be accounted for by the sheriff to the corresponding
executor or administrator. (Sec. 7-C of Rule 39)
119
A sued B for ejectment. Pending trial, B died, survived by his son, C. No substitution of party
defendant was made. Upon finality of the judgment against B, may the same be enforced against C?
(2011 BAR)
(A) Yes, because the case survived B’s death and the effect of final judgment in an ejectment
case binds his successors in-interest.
(B) No, because C was denied due process.
(C) Yes, because the negligence of B’s counsel in failing to ask for substitution, should not prejudice A.
(D) No, because the action did not survive B’s death.
120
Which of the following claims survive the death of the defendant and need not be presented as a
claim against the estate? (2011 BAR)
(A) Contingent money claims arising from contract.
(B) Unenforced money judgment against the decedent, with death occurring before levy on execution
of the property.
(C) Claims for damages arising from quasi-delict.
(D) Claims for funeral expenses.
Effect of death of the accused121 or convict on the civil action

[] As to his criminal liability: Death of the accused EXTINGUISHES criminal
liability at any stage of the proceedings. The moment the offender dies, there is
nobody to serve the personal penalty. The enumeration below refers to his
civil liability.
1. If the accused died after arraignment and during the pendency of the
criminal action
a. GR: The civil liability of the accused based on the crime is extinguished.
Death extinguishes civil liability if the offender dies before122 conviction by
final judgment. This refers to civil liability arising from the crime itself, i.e.,
121
Effect of DEATH of the accused on the civil action
1. If the accused died AFTER arraignment and during the pendency of the criminal action – his
criminal liability is terminated and only the civil liability directly arising from and based solely
on the offense committed, i.e. civil liability (Latin) “EX DELICTO IN SENSO STRICTIORE.”
**But the claim for civil liability predicated on a source of obligation other than a delict
SURVIVES notwithstanding the death of the accused (Riano, 2011, citing ABS-CBN Broadcasting
Corporation v. Ombudsman, G.R. No. 133347, October 15, 2008).
2. If the accused dies BEFORE arraignment – the case shall be dismissed but the offended party
may file the proper civil action against the estate of the deceased (Sec. 4, Rule 111). Where the civil
liability survives, an action for recovery therefore may be pursued but only by way of filing a
separate civil action either against the executor/administrator or estate of the accused, depending on
the source of obligation upon which the same is based (Riano, 2011).
122
[] PP vs. Bayot 2012: Appellant’s death… during the pendency of his appeal before the Court of
Appeals, extinguished not only his criminal liability for the crime of rape committed against AAA, but
also his civil liability solely arising from or based on said crime.
EX DELICTO, not the civil liability from other123 sources124 of obligation,125

infra.
b. ****XPN:
i. Independent civil actions based on Arts. 32 33, 34 and 2176 of the
Civil Code (see CrimPro for details); and
123
PM, a rich businessman, was convicted of murder and sentenced to life imprisonment by the
Regional Trial Court, and to pay the heirs of the victim the total amount of P250,000.00. While his
appeal was pending before the Supreme Court, PM died. The defense counsel manifested that
PM’s death extinguished not only the criminal liability but also the pecuniary liability because the death
occurred before the final judgment, since the case was pending appeal. He invoked Art. 89 of the
Revised Penal Code which provides that “criminal liability is totally extinguished: 1. By the death of the
convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished only
when the death of the offender occurs before the final judgment’ As a Solicitor in the Office of the
Solicitor General, do you agree with the defense counsel’s argument? (1987 Bar Question)
SUGGESTED ANSWER: As Solicitor General, I will not agree to the argument of the defense
counsel that the death of PM while his appeal was pending extinguished not only his criminal liability
but also his pecuniary liability Article 89 of the Revised Penal Code which provides that the “pecuniary
liability of the accused is extinguished only when the death of the offender occurred before the final
judgment”, refers to his liability to pay the fine. (People vs. Sendaydiego, 81 SCRA 120). The civil
liability, however, survives the death of the offender because death is not a valid cause of the
extinguishment of civil obligation. (Tonijos vs. Court of Appeals 67 SCRA 394). [TOM thinks that the
answer is not that clear. Just base it on the two items in this thought unit, supra]
124
Rico was convicted of raping Letty, his former sweetheart by the Regional Trial Court of Manila
and he was ordered to serve the penalty of life imprisonment, to indemnify Letty in the amount of
P30.000.00 and to support their offspring. Pending appeal in the Supreme Court. Rico died. His
widow, Bemie, moved for a dismissal of the case
A. What is the legal effect of Rico’s death on his criminal liability? Explain your answer. (1990
Bar Question): The criminal liability of Rico is extinguished on the basis of Article 89 of the
Revised Penal Code which provides that: “ How criminal liability is extinguished - Criminal liability is
totally extiguished: 1. By the death of the convict, as to the personal penalties; and as to pecuniary
penalties, liability therefor is extinguished only when the death of the offender occurs before final
judgement.
B. How about on his civil liability? State your reasons. (1990 Bar Question) SUGGESTED
ANSWER: The civil liability of Rico survives. (People v. Sen- davdiego, January 20, 1978, 74 O.G.
4371; People v. Tirol G.R. No. L-30588, January 31, 1981; People v. Naboa, et, al.,132 SCRA 410).
125
Librado was convicted of malversation for which he has imposed the indeterminate penalty of
imprisonment with the following accessory penalties provided by law - a fine of P6.000.00 without
subsidiary imprisonment in case of insolvency; perpetual special disqualification; indemnification to
the government in the amount of P6.000.00 and to pay the costs. If he dies pending appeal, what is
the legal effect of his death on his criminal and pecuniary liabilities? (1992 Bar Question)
SUGGESTED ANSWER: Under Art. 89. RPC and jurisprudence (People vs. Jose. 71 SCRA
273, People vs. Alison. 44 SCRA 523; etc.) death of the accused pending appeal extinguishes his
criminal and civil liabilities. *****Civil liability includes pecuniary liabilities, such as fine. Hence,
the same, together with the disqualification and the costs are extinguished.
ALTERNATIVE ANSWER: In Peiralba vs. Sandiganbayan. 200 SCRA 644, however,
extinction of criminal liability arising from the death of the accused pending appeal likewise
extinguishes the pecuniary liability such as fine, but not the civil liability, such as the
indemnification of P6.000.00 in the instant case. The same is a claim of the government against
the estate but ONLY IF THE OFFENSE CAN BE PROVED in the appellate court. In other
words, the latter should still decide the appeal as far as the civil liability of P6.000.00 is concerned.
ii. Civil liability predicated on other sources of obligations, i.e. law,

contract, and quasi-contract, which is subsequently instituted—But even if the
offender dies before conviction by final judgment, his civil liability survives if
the said civil liability did not arise from or was not based solely from the
crime committed but based from other126 sources of obligation such as law,
contract, quasi-contracts or quasi-delicts.127
2. If the accused died before arraignment – the offended party may file the
civil action against the estate of the deceased (Sec. 4, Rule 111).
3. If the accused died pending appeal
a. Civil liability arising from the crime128 is extinguished;
126
AX was convicted of reckless imprudence resulting in homicide. The trial court sentenced him
to a prison term as well as to pay P150.000 as civil indemnity and damages. While his appeal was
pending, AX met a fatal accident. He left a young widow, 2 children, and a million-peso estate.
What is the effect, if any, of his death on his criminal as well as civil liability? Explain briefly. (5%)
(2004 Bar Question) SUGGESTED ANSWER: The death of AX while his appeal from the judgment
of the trial court is pending, extinguishes his criminal liability. ******The civil liability insofar as
it arises from the crime and recoverable under the Revised Penal Code is also extinguished; but
indemnity and damages may be recovered in a civil action if predicated on a source of
obligation under Art. 1157, Civil Code, such as law, contracts, quasi-contracts and quasi-delicts, but
not on the basis of delicts. (People v. Bayotas, 236SCRA 239 11994B). Civil indemnity and damages
under the Revised Penal Code are recoverable only if the accused had been convicted with finality
before he died.
127
A was a 17-year old working student who was earning his keep as a cigarette vendor. B was driving a
car along busy Espana Street at about 7:00 p.m. Beside B was C. The car stopped at an intersection
because of the red signal of the traffic light. While waiting for the green signal, C beckoned A to buy
some cigarettes. A approached the car and handed two sticks of cigarettes to C. While the transaction
was taking place, the traffic light changed to green and the car immediately sped off. As the car
continued to speed towards Qulapo, A clung to the window of the car but lost his grip and fell down
on the pavement. The car did not stop. A suffered serious injuries which eventually caused his
death. C was charged with ROBBERY with HOMICIDE. In the end, the Court was not convinced
with moral certainty that the guilt of C has been established beyond reasonable doubt and, thus,
acquitted him on the ground of reasonable doubt. Can the family of the victim still recover civil
damages in view of the acquittal of C? Explain. (5%) (2000 Bar Question) SUGGESTED ANSWER:
Yes, as against C, A's family can still recover civil damages despite C's acquittal. When the
accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond
reasonable doubt, *****a civil action for damages for the same act or omission may be
instituted. Such action requires only a preponderance of evidence (Art. 29, CC). If A’s family can
prove the negligence of B by preponderance of evidence, the civil action for damages against B will
prosper based on quasi-delict. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or negligence, about [TOM
thinks this should be “without” not ‘about’] pre-existing contractual relation between the parties, is
called a quasi-delict (Art. 2176, CC). This is entirely separate and distinct from civil liability
arising from negligence under the Penal Code [TOM adds: which is a ‘delict’] (Arts. 31, 2176.
2177, CC).
128
[] Q: Allan and Boyet were charged with murder committed in conspiracy. After trial, Allan and
Boyet were convicted as charged. While the case was pending in the CA, Allan died. Should the
appeal still continue despite the death of Allan? YES. Notwithstanding the death during the pendency
of the criminal action of one of two accused charged with and convicted for murder committed in
conspiracy, the appeal should continue to determine criminal and civil liability. ****Here, the death of
b. Civil liability predicated from another source SURVIVES, i.e., civil

liability arising from law, contracts, quasi-contract and quasi-delict.
4. For 1b & 3b: The civil action may be continued against the estate or legal
representative of the accused after proper substitution, as the case may be (Sec.
4, Rule 111). Where the civil liability survives, it may be pursued by the filing of a
separate civil action unless otherwise waived, reserved or instituted prior to
the institution of the criminal action (Herrera, 2007). Claims which survive
death of accused: claim for civil liability survives notwithstanding death of
accused if the same may also be based on a source of obligation other than
delict (contract, law, quasi-contract, quasi-delict); Separate civil action may be
enforced either against [People vs. Bayotas, 236 SCRA 239 [1994]*******
a. Estate of accused (contract; Rule 86)
b. Executor/administrator (law, quasi-contract, quasi-delict;129 Rule 87)
5. If the offender dies after130 conviction by final judgment, his civil liability
will survive. The private complainant can go after the executor or
administrator of the estate of the said offender. It survives because the
judgment has already become final and executory. Guilt has already been
proven beyond reasonable doubt.
EFFECT OF DEATH of the offended party to the criminal action.

1. If prior to the filing of a case in court, a complaint was already filed by the
offended party with the prosecutor, the death of the complainant will not be
sufficient justification for the dismissal of the information (People v. Ilarde,
G.R. No. L-57288, April 30, 1984); or
2. During the pendency of the case, the death of the complainant will not
extinguish the criminal liability of the accused whether total or partial (Donio-
Teves v. Vamenta, G.R. No. L-38308, December 26, 1984). The estate of the
deceased offended party can continue the case.131
Allan extinguished his criminal and civil liability arising from the offense, but Boyet may still be
found criminally and civilly liable (People v.Tumayao, G.R. No. L-35442, March 4, 1932).
129
*Civil actions for tort or quasi-delict do not fall within the class of claims to be filed under the
notice to creditors required under Rule 86. These actions, being civil, survive the death of the
decedent and may be commenced against the administrator pursuant to Section 1, Rule 87. [Hilado
vs. Court of Appeals, G.R. No. 164108, May 8, 2009]
130
The death of the accused extinguishes his criminal liability but civil liability is not extinguished.
(2013 BAR)
(A) when the death of the accused occurred before conviction
(B) when the death of the accused occurred after conviction and after he has perfected his appeal
from conviction
(C) when the death of the accused occurred during the pendency of his appeal
(D) when the death of the accused occurred after final judgment
(E) None of the above.
131
For defrauding Loma, Alma was charged before the Municipal Trial Court of Malolos, Bulacan.
After a protracted trial, Alma was convicted. While the case was pending appeal in the Regional
———————————————————————————————
Trial Court of the same province, Loma who was then suffering from breast cancer, died. Alma
manifested to the court that with Loma's death, her (Alma's) criminal and civil liabilities are now
extinguished. Is Alma’s contention correct? What if it were Alma who died, would it affect her criminal
and civil liabilities? Explain. (3%) (2000 Bar Question) SUGGESTED ANSWER: No. Alma's
contention is not correct. The death of the offended party does not extinguish the criminal liability
of the offender, because the offense is committed against the State (People vs. Misola, 87 Phil. 830,
833). Hence, it follows that the civil liability of Alma based on the offense committed by her is not
extinguished. The estate of Loma can continue the case. On the other hand, if it were Alma who
died pending appeal of her conviction, her criminal liability shall be extinguished and therewith
the civil liability under the Revised Penal Code (Art. 89, par. 1, RPC). However, the claim for civil
indemnity may be instituted under the Civil Code (Art. 1157) if predicated on a source of obligation
other than delict, such as law, contracts, quasi-contracts and quasidelicts (People vs. Bayotas 236 SCRA
239, G.R. 152007, September 2, 1994).
3.2. Cause of action (coa) [Rule 2]
3.2.1. Meaning of cause of action (coa) 104

3.2.2. Right of action versus cause of action 104
3.2.3. Failure to state a cause of action 105
Failure to state cause of action as a ground for a MTD 106
3.2.4. Test of the sufficiency of a cause of action 107
3.2.5. Splitting a single cause of action and its effects [s4r2] 110
3.2.6. Joinder and mis-joinder of causes of action [s5-6;r2] 110
———————————————————————————————
3.2.1. Meaning of cause of action (coa)

1. A cause of action is an act or omission of one party in violation of the legal
right of the other [s2r2; Philippine Bank of Communications v. Trazo]
a. coa is necessary only for OCA: Every ordinary civil action must be based
on a cause of action [s1r2]
b. after knowing the cause of action, choose the court where to file the
complaint (cf. Jurisdiction).
2. A cause of action132 exists if the following elements are present, namely:******
(1) a legal right in favor of the plaintiff by whatever means and under
whatever law it arises or is created;
(2) an obligation on the part of the named defendant to respect or not to
violate such right; and
(3) an act or omission on the part of such defendant violative of the right
of the plaintiff or constituting a breach of the obligation of the defendant to the
plaintiff for which the latter may maintain an action for recovery of damages or
other appropriate relief.
3. A motion to dismiss based on lack of cause of action hypothetically admits the
truth of the allegations in the complaint. The allegations in a complaint are
sufficient to constitute a cause of action against the defendants if, hypothetically
admitting the facts alleged, the court can render a valid judgment upon the same
in accordance with the prayer therein.
4. Is a cause of action needed for all types of civil actions? NO. It is mandatory
only for ORDINARY civil actions. Hence, not all civil actions required that a
right be violated.
132
Distinguish action from cause of action. (2%) An action is one by which a party sues another for
the enforcement or protection of a right, or the prevention or redress of a wrong. (Sec. 3(A),
second par., Rule 1 of the 1997 Rules of Civil Procedure.) A cause of action is the act or omission by
which a party violates a right of another. (Sec. 2, Rule 2 of the 1997 Rules) ******AN ACTION
MUST BE BASED ON A CAUSE OF ACTION. (Sec. 1, Rule 2 of the 1997 Rules)
a. EG: SPECIAL civil actions: Interpleader [R62]: the plaintiff is confronted

by conflicting claims on ownership; it did not violate the right of a warehouseman;
declaratory relief [R63]; expropriation cases.
b. But note that there are SPECIAL civil actions that involve violation
of a right. EG: forcible entry & unlawful detainer [R70].
5. Sample variety in causes of action: **In an action for declaration of illegal
strike, the cause of action is premised on a union or a labor organization’s
conduct of a strike without compliance with the statutory requirements. On the other
hand, in an action for illegal dismissal, the cause of action is premised on an
employer’s alleged dismissal of an employee without a just or authorized cause as
provided under Articles 282, 283, and 284 of the Labor Code. Club Filipino, Inc. v.
Bautista, January 14, 2015
6. Cause of action in administrative cases: the issue is not whether the
complainant has a cause of action against the respondent, but whether the
RESPONDENT HAS BREACHED the norms and standards of the office (Riano,
2014).
WHEN CAUSE OF ACTION MUST EXIST

1. COA must exist at the time the complaint is filed.133 Hence, a complaint
whose cause of action has not yet accrued cannot be cured by an
amended or supplemental pleading alleging the existence or accrual
of a cause of action during the pendency of the action. [Turner v
Lorenzo Shipping, 2010 on the right of appraisal]
2. NB: Even if there is an existing contract, a tort can still be the cause
of action if what breaks the contract is a tortious act. (Mindanao
Terminal v Phoenix, 2009)
3.2.2. Right of action versus cause of action

RIGHT OF ACTION vs. CAUSE OF ACTION
1. Key idea: there is NO RIGHT OF ACTION without a CAUSE OF
ACTION
2. To warrant recovery of damages, there must be both a right of action, for a
wrong inflicted by the defendant, and the damage resulting therefrom to the
plaintiff. Wrong without damage, or damage without wrong, does not
133
Bar 2012: A bought a Volvo Sedan from ABC Cars for P 5.0M. ABC Cars, before delivering to
A, had the car rust proofed and tinted by XYZ Detailing. When delivered to A, the car’s upholstery
was found to be damaged. ABC Cars and XYZ Detailing both deny any liability. Who can A sue and
on what cause(s) of action? *****A can file an action for specific performance and damages
against ABC Cars since the damage to the Volvo sedan’s upholstery was caused BEFORE delivery
of the same to A, and therefore PRIOR to the TRANSFER of ownership to the latter. (Article
1477, New Civil Code). Under Article 1170 of the Civil Code, those who contravene the tenor of the
obligation are liable for damages. Hence, an action for specific performance against ABC
Corporation to deliver the agreed Volvo Sedan in the contract free form any damage or defects,
with corresponding damages will lie against ABC Cars.
constitute a cause of action.

3. The cause of action (coa) is the BASIS of a right of action. It comes from
the 5 sources of obligations.
CAUSE OF ACTION RIGHT OF ACTION
It is the act or omission by which a party Right of a plaintiff to bring an action and to
violates the rights of another (Sec. 2, Rule prosecute that action until final judgment (Marquez
2).*** v. Varela, 92 Phil. 373).
REQUISITES 1. There must be a good cause (existence of a
1. The existence of a legal right of the plaintiff; cause of action);
2. A correlative duty of the defendant to 2. A compliance with all the conditions
respect one’s right; precedent to the bringing of the action;
3. An act or omission of the defendant in 3. Right to bring and maintain the action must be in
violation of the plaintiff’s right (Agrarian the person instituting it (Albano, Remedial Law
Reform Beneficiaries Association v. Nicolas, Reviewer, 2014, p. 53 hereinafter referred to as
G.R. No. 168394, October 6, 2008). Albano 2014).
NATURE. It is actually predicated upon Right of action which is procedural in character is
substantive law on quasi-delicts under the the consequence of the violation of the right of
NCC (Riano, 2014). the plaintiff (Riano, 2014).
Based on the allegations of the plaintiff in Basis is the plaintiff’s cause of action. There is no
the complaint. right of action where there is no cause of action (Ibid.)
Not affected by affirmative defenses (fraud, May be taken away by running of Statute of
prescription, estoppels, etc.) limitation, by estoppel or other circumstances
which do not at all affect the cause of action (Turner
v. Lorenzo Shipping Corporation, G.R. No. 157479,
November 24, 2010).
3.2.3. Failure to state a cause of action

*Cf. Motion to Dismiss, with failure to state a cause of action as a ground.
FAILURE TO STATE coa vs. LACK OF coa*****

FAILURE TO STATE coa LACK OF coa
refers to the insufficiency of allegation in the refers to the insufficiency of factual basis for the
pleading, action; Where the evidence failed to prove the
cause of action alleged in the pleading
may be raised in a Motion to Dismiss under Raised in a demurrer to evidence under Rule 33
Rule 16 before a responsive pleading is after the plaintiff has rested his case; may be raised
filed**** any time.
Dismissal for failure to state a cause can be Dismissal for lack of cause is usually made after
made at the earliest stages of an action questions of fact have been resolved on the basis of
stipulations, admissions or evidence presented
FAILURE TO STATE coa LACK OF coa

Determined only from the allegations of Resolved only on the basis of the evidence he
the pleading and not from evidentiary presented in support of his claim (Riano, 2014
matters (Riano, 2014, citing Domondon v. citing Domondon v. Lopez, supra).
Lopez, supra).
dismissal is ***without prejudice to the re- dismissal constitutes res judicata on the issue and
filing of an amended complaint. will bar future suits based on the same cause of action
[] Effect of lack of cause of action on the jurisdiction of the court: Lack of cause
of action does not affect the authority of a court to hear and decide a given
case, if the court has jurisdiction over its subject matter, over the parties therein, and
in an action in rem, over the res (Herrera, 2007).
Failure to state cause of action as a ground for a MTD

1. Pleading asserting the claim states no cause of action (PACS-no-
COA) does not go into the falsity or truthfulness of the claim. NB:
Dismissal based on failure to state a cause of action does NOT BAR the
subsequent re-filing of the complaint (Sec. 5, Rule 16).134
134
Q: Mr. Avenger filed with Regional Trial Court (RTC) a complaint against Ms. Bright for annulment
of deed of sale and other documents. Ms. Bright filed a motion to dismiss the complaint on the
ground of lack of cause of action. Mr. Avenger filed an opposition to the motion to dismiss. State
and discuss the appropriate remedy/ remedies under each of the following situations: (2014)
a. If the RTC grants Ms. Bright’s motion to dismiss and dismisses the complaint on the ground
of lack of cause of action, what will be the remedy/ remedies of Mr. Avenger? [TOM: the correct
ground is “failure to state a cause of action”]A: Mr. Avenger can choose any of the following remedies:
1. Mr.Avenger may file a Motion for Reconsideration. If denied, he could file an
appeal to the Court of Appeals under Rule 41 since a dismissal based on lack of cause of action (under
Rule 33) is appealable.
2. Mr. Avenger may file a Motion for reconsideration. If the same is denied, he could
file a Petition for Certiorari under Rule 65 because a dismissal based on failure to state a cause of
action is considered without prejudice and therefore an interlocutory order which cannot be a subject
of an appeal under Rule 41.
3. Mr. Avenger may file a Motion for Reconsideration if the same is denied, he can
simply re-file the complaint because an Order granting a Motion to Dismiss based on failure to state
a cause of action is without prejudice to the filing of another Complaint (Section 5, Rule 16).
4. Mr. Avenger may amend his Complaint, as a matter of right, since a Motion to
Dismiss is not a responsive pleading. (Irene R. Marcos-Araneta v. Court of Appeals, G.R. No.
154096, August 22, 2008).
b. If the RTC denies Ms. Bright’s motion to dismiss, what will be her remedy/ remedies? A:
1. Ms. Bright may file a Motion for Reconsideration. If the same is denied, she could
file a special civil action for certiorari under Rule 65. An Order denying a Motion to Dismiss is
interlocutory because it does not finally dispose of the case, and, in effect, directs the case to proceed
until final adjudication by the court. Hence, a special civil action on certiorari is the appropriate
remedy. (Section 1, Rule 41; Marmo v. Anacay, G.R. No. 182585, November 27, 2009).
2. Test to determine if the complaint fails to state a cause of action.

******Ask: hypothetically admitting the facts alleged, can the court
render a valid judgment in accordance with the relief prayed for?
This must be determined from the allegations of fact in the complaint
alone.135 *****This is the only ground of a motion to dismiss which
must appear on the face of the complaint. The inquiry is into the
sufficiency, not the veracity of the material allegations.136
3. When invoked:
a. Pleading, on its face, does not appear to state a COA.
*****This is “failure to state coa”, not “lack of coa”.137
b. This ground is also invoked when a party is not the real-party-
in-interest (RPI) [Strongworld Construction v Perello, 2006: the
2. Ms. Bright may file an Answer within the balance of the period from the filing of his
Motion to Dismiss but not less than five (5) days, and raise affirmative defenses therein. (Section
4 and 6, Rule 16)
c. If the RTC denies Ms. Bright’s motion to dismiss and, further proceedings, including
trial on the merits, are conducted until the RTC renders a decision in favor of Mr. Avenger, what will
be the remedy/ remedies of Ms. Bright? A: Ms. Bright may avail of the following remedies before the
finality of the decision:
1. A motion for reconsideration(Sec,1,Rule37);
2. A motion for new trial(Sec.1,Rule37); and
3. Appeal (Rules40,41,42,43and45).
d. After the finality of the Decision, Ms. Bright can avail of the following:
1. Petition for relief (Rule38);
2. Annulment of Judgment (Rule47); and
3. Petition for Certiorari (Rule65).
135
a. ALLEGATIONS OF THE COMPLAINT: In resolving whether or not the complaint states a
cause of action, the trial **court should limit itself to examining the SUFFICIENCY OF THE
ALLEGATIONS in the complaint. It is proscribed from inquiring into the truth of the allegations in
the complaint or the authenticity of any of the documents referred or attached to the
complaint, as these are deemed hypothetically admitted by the respondents. [Aquino vs Quiazon]
136
SUFFICIENCY, NOT VERACITY, OF MATERIAL ALLEGATIONS: The elementary test for
failure to state a cause of action is whether the complaint alleges facts which if true would justify the relief
demanded. Stated otherwise, may the court render a valid judgment upon the facts alleged therein?
**The inquiry is into the sufficiency, not the veracity of the material allegations. If the
allegations in the complaint furnish sufficient basis on which it can be maintained, it should not be
dismissed regardless of the defense that may be presented by the defendants. PNB vs Sps. Rivera.
137
Now, what’s the difference between no cause of action (no COA) and PACS-no-
COA?
a. Use the No COA in the answer as a defense or as a demurrer. But if used as a
demurrer (Rule 33), it must be filed after the plaintiff has presented evidence and
rested its case. [Manila Banking v Uni of Baguio, 2007: the university filed a MTD after it
filed an answer but before the plaintiff rested its case. So it wasn’t a Sec 16 MTD nor a
demurrer.]. Ground for demurrer: insufficiency of evidence.
b. Use PACS-COA as a ground for motion to dismiss. Usually the complaint is
incomplete, defective or lacks allegations. It’s based on preliminary objections.
*****PACS-COA is waived if not raised in MTD or answer. No cause of action is not
waived.
individual who brought suit was not authorized by the corporation to file
a case in its behalf]
c. If the case was prematurely filed,138 say when the action is for
collection of a sum of money and its corresponding promissory note was
not yet due when the case was filed.139
4. Averments in the Complaint
a. GR: Averments in the complaint are deemed hypothetically admitted
upon the filing of a motion to dismiss grounded on failure to state a cause of
action.
b. XPNs: [When will the court not “admit allegations as
true”?Exceptions to the hypothetical admission of allegations]:140
i. When there is judicial notice of the falsity;
ii. When it’s legally impossible;
iii. When the facts are inadmissible in evidence;
iv. When the facts are unfounded,141 as appearing in the
record or document in the pleading;
138
Bar 1999: A sued B to recover P500, 000.00 based on a promissory note due and payable on
December 5,1998. The Complaint was filed on November 30, 1998, and summons was served on B on
December 7, 1998. B interposes a motion to dismiss on the ground that the Complaint states no cause
of action. If you were the judge, how would you rule on the motion? (2%) SUGGESTED ANSWER:
If I were the judge, I would grant the motion on the ground that the complaint states no
cause of action. When the complaint was filed, the promissory note was not yet due and payable
and hence the complaint was filed prematurely. This defect was not cured by the service of the
summons on the defendant after the date when the promissory note became due and payable.
139
A complaint whose cause of action has NOT yet ACCRUED cannot be cured or remedied by
an amended or supplemental pleading alleging the existence or accrual of a cause of action while the case is
pending. Such an action is PREMATURELY brought and is, therefore, a groundless suit, which
should be dismissed by the court upon proper motion seasonably filed by the defendant. The underlying
reason for this rule is that a person should not be summoned before the public tribunals to answer for
complaints which are immature. [Swagman Hotels and Travel vs CA]
140
IOW: A motion to dismiss does not admit the
i. Truth of mere epithets of fraud;
ii. Allegations of legal conclusions;
iii. An erroneous statement of law;
iv. Mere inferences or conclusions from facts not stated;
v. Mere conclusions of law;
vi. Allegations of fact the falsity of which is subject to judicial notice;
vii. Matters of evidence;
viii. Surplusage and irrelevant matter;
ix. Scandalous matter inserted merely to insult the opposing party;
x. Legally impossible facts;
xi. Facts which appear unfounded by a record incorporated in the pleading, or by a document
referred to;
xii. General averments contradicted by more specific averments (Tan v. CA, 356 Phil. 555).
141
*cf. Heirs of Loreto Maramag v Maramag (2009) wherein the SC used the exceptions
since it was an insurance case and the heirs were not beneficiaries, so under the
v. There is evidence which has been presented to the court

by stipulation of the parties or in the course of the hearings related to
the case
3.2.4. Test of the sufficiency of a cause of action

1. Whether or not admitting the facts alleged, the court could render a valid
verdict in accordance with the prayer of the complaint (Misamis Occidental II
Coop., Inc. v. David, G.R. No. 129928, August 25, 2005);
2. The sufficiency of the statement of cause of action must appear on the face
of the complaint and its existence is only determined by the allegations of the
complaint (Viewmaster Construction Corp. v. Roxas, G.R. No. 133576, 13 July 2000).
**The truth or falsity of the allegations is beside the point because the
allegations in the complaint are hypothetically admitted. Thus a ***motion to
dismiss on the ground of failure to state a cause of action hypothetically
admits the matters alleged in the complaint. (Riano 2014, citing PNB v. Court
of Appeals, G.R. No. 121251, June 26, 1998; Sta. Clara Homeowner’s Association
v. Gaston, G.R. No. 141961, January 23, 2002).
3. Several tests exist to ascertain whether two suits relate to a single or common cause of
action, such as:*****
a. whether the same evidence would support and sustain both the first and
second causes of action (also known as the SAME EVIDENCE TEST), or
b. whether the DEFENSES in one case may be used to substantiate the
complaint in the other.
c. Also fundamental is the test of determining whether the cause of action in
the second case EXISTED AT THE TIME of the filing of the first complaint.142
3.2.5. Splitting a single cause of action and its effects [s4r2]

1. Splitting of cause of action: It is the act of instituting two or more suits on
the basis of the same cause of action (Sec. 4, Rule 2). It is the act of dividing a
single or indivisible cause of action into several parts or claims and bringing
Insurance Code, they couldn’t recover even if the facts alleged were deemed
hypothetically admitted.
142
*Of the three tests cited, the third one is especially applicable to the present case, i.e., whether the
cause of action in the second case existed at the time of the filing of the first complaint and to
which we answer in the negative. The facts clearly show that the filing of the **first ejectment case was
grounded on the petitioners VIOLATION OF STIPULATIONS in the lease contract, while the filing
of the **second case was based on the EXPIRATION of the lease contract. At the time the respondent
filed the first ejectment complaint on October 10, 2000, the lease contract between the parties was still
in effect. The lease was fixed for a period of two (2) years, from January 16, 2000, and in the
absence of a renewal agreed upon by the parties, the lease remained effective until January 15, 2002. It was
only at the expiration of the lease contract that the cause of action in the second ejectment
complaint accrued and made available to the respondent as a ground for ejecting the petitioner.
***Thus, the cause of action in the second case was not yet in existence at the time of filing of the
first ejectment case. Umale v. Canoga Park Development Corporation, 654 SCRA 162
several actions thereon (Riano 2014, citing Quadra v. Court of Appeals, G.R. No.
147593, July 31, 2006). 143
a. *****The practice of splitting a cause of action is DISCOURAGED
because it breeds MULTIPLICITY of suits, clogs the court dockets, leads to
vexatious litigation, operates as an instrument of harassment, and generates
unnecessary expenses to the parties.
b. ***It applies not only to complaints but also to counterclaims and
cross-claims (Riano, 2014).
c. [s3]: One suit for a single cause of action: A party may not institute more than
one suit for a single cause of action.
d. What causes splitting? The violation of a single right may give rise to
more than one relief. In other words, for a single cause of action or violation of
a right, the plaintiff may be entitled to several reliefs. ***It is the filing of
separate complaints for these several reliefs that constitutes splitting up of
the cause of action.144
2. ******EFFECT of splitting a cause of action:145 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
143
BAR 2017: Q: Elise obtained a loan of P3 Million from Merchant Bank. Aside from executing a
promissory note in favor of Merchant Bank, she executed a deed of real estate mortgage over her
house and lot as security for her obligation. The loan fell due but remained unpaid; hence, Merchant
Bank filed an action against Elise to foreclose the real estate mortgage. A month after, and while the
foreclosure suit was pending, Merchant Bank also filed an action to recover the principal sum of P3
Million against Elise based on the same promissory note previously executed by the latter. In opposing
the motion of Elise to dismiss the second action on the ground of splitting of a single cause of action,
Merchant Bank argued that the ground relied upon by Elise was devoid of any legal basis
considering that the two actions were based on separate contracts, namely, the contract of loan
evidenced by the promissory note, and the deed of real estate mortgage. Is there a splitting of a
single cause of action? Explain your answer. SUGGESTED ANSWER: Yes, there is a splitting of a
single cause of action. Under the Rules of Civil Procedure, there is a splitting of a single cause of action
if two or more suits are instituted on the basis of the same cause of action. [S4 R2]. A cause of action
is the act or omission by which a party violates a right of another. [S2 R2]. Here, both suits, the
foreclosure and the collection suit, arose from the same cause of action, that is, the non-
payment by Elise of her P3 million loan from Merchant Bank. The fact that the two actions
were based on separate contracts is irrelevant, what matters is that both actions arose from the
same cause of action. (Jurist Review Center, Inc.)
144
[] Whenever a plaintiff has filed more than one complaint for the same violation of a right, the
filing of the first complaint on any of the reliefs born of the said violation CONSTITUTES A
BAR to any action on any of the other possible reliefs arising from the same violation, whether
the first action is still pending, in which event, the defense to the subsequent complaint would be litis
pendentia, or if it has already been finally terminated, the defense would be res adjudicata.
145
Bar 1999: What is the rule against splitting a cause of action and its-effect on the respective rights of
the parties for failure to comply with the same? (2%): The rule against splitting a cause of action and
its effect are that 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. (Sec. 4, Rule 2 of the 1997 Rules)
THE DISMISSAL of the others (Sec. 4, Rule 2). Since the rule is that all such
rights should be alleged in a single complaint, it goes without saying that those
not therein included cannot be the subject of subsequent complaints for
they are barred forever.146
3. *****REMEDIES against splitting cause of action: File a MOTION TO
DISMISS, on the ground of LITIS PENDENTIA or if the first action has already been
finally terminated, on the ground of RES JUDICATA.
4. Case scenarios: when second case was dismissed due to splitting a cause of
action:
a. A forcible entry case has one cause of action, namely, the alleged
unlawful entry by petitioner into the leased premises *****out of which 3
reliefs may arise: (a) restoration of possession; (b) the claim for actual damages;
and, (c) the claim for attorney's fees and cost of suit.
i. If actual and compensatory damages were already prayed for
in the forcible entry case before the MeTC, it is obvious that this ***cannot be
relitigated in a damage suit before the RTC by reason of res adjudicata.
Claims for moral and exemplary damages cannot also succeed if these
sprung from the main incident. Progressive Development Corporation vs CA.
ii. But note that *****damages (that are) not part of the main claim
can be litigated separately: The recoverable damages in forcible entry and
detainer cases refer to rents or the reasonable compensation for the use of the
premises or the fair rental value of the property and attorney‘s fees and
costs. Considering that the only issue raised in ejectment is that of rightful
possession, the damages which could be recovered are those which the
plaintiff could have sustained as a mere possessor, or those caused by the
loss of the use and occupation of the property, and *****not the damages
which he may have suffered but which have no direct relation to his loss of
material possession. The latter damages must thus be claimed in an ordinary
action.147
b. In loan contracts secured by a real estate mortgage, the rule is that
the *****creditor-mortgagee has a SINGLE cause of action against the
debtor-mortgagor, [Marilag vs Martinez], i.e., to recover the debt, through
146
Jurisprudence is unequivocal that when a single delict or wrong is committed — like the
unlawful taking or detention of the property of the another — there is but one single cause of
action regardless of the number of rights that may have been violated, and **all such rights
should be alleged in a single complaint as constituting one single cause of action. What then is the
effect of the dismissal of the other action? Since the rule is that all such rights should be alleged in a
single complaint, it goes without saying that those not therein included cannot be the subject of
subsequent complaints for they are barred forever. Progressive Development Corporation vs. CA
147
*****EG: In view of the foregoing, CGR Corp's filing of an independent action for damages other
than those sustained as a result of their dispossession or those caused by the loss of the use
and occupation of their properties CANNOT BE CONSIDERED AS SPLITTING of a cause of action.
CGR Corp. vs Treyes.
i. the filing of a PERSONAL action for collection of sum of money or

ii. the institution of a REAL action to foreclose on the mortgage security.
******The two remedies are ALTERNATIVE, not cumulative or
successive, and EACH REMEDY IS COMPLETE by itself. Thus, if the creditor-
mortgagee opts to foreclose the real estate mortgage, he waives148 the action
for the collection of the unpaid debt, except only for the recovery of
whatever deficiency may remain in the outstanding obligation of the debtor-
mortgagor after deducting the bid price in the public auction sale of the
mortgaged properties.
c. The filing of a complaint to recover surcharges arising from the
violation of the same defendant of the same right of the plaintiff after the latter
won in a case to recover basic charges is tantamount to the splitting of a cause of
action.149
d. The recovery of dividends that have accrued during the time an action
for annulment of sale of certain shares of stock was filed can no longer be
recovered if not included in the latter action.150
e. *****In a complaint for interpleader by a warehouseman, his claim for
storage fees and advances should be included in the petition.151
148
A plaintiff cannot split his cause of action on an unpaid loan obligation by filing a petition for
the judicial foreclosure of the real estate mortgage covering the said loan, and, thereafter, a personal
action for the collection of the unpaid balance of said obligation not comprising a deficiency arising
from foreclosure, without violating the proscription against splitting a single cause of action,
where the ground for dismissal is either res judicata or litispendentia, as in this case.
149
In this case, the obligation of appellant to pay the surcharges arose from the violation by said
appellant of the same right of appellee from which the obligation to pay the basic charges also
arose. When appellee filed for a complaint to recover the surcharges after it has won in a case to
recover the basic charges, it is obvious that appellee has filed separate complaints for each of two
reliefs related to the same single cause of action, thereby splitting up the said cause of action.
City of Bacolod vs. San Miguel Brewery
150
X brought an action against Y for the annulment of the sale of certain shares of stock. After the
case was decided in favor of X, he filed another action for the recovery of the dividends that had
already accrued when the first action was filed. Is the second action for the recovery of the
dividends proper? Answer:
No, because the recovery of the dividends is part of the cause of action for the annulment
of the sale of certain shares of stock and should have been claimed in the first action. The second
action constituted splitting a single cause of action.
151
Q: Raphael, a warehouseman, filed a complaint against V Corporation. X Corporation and Y
Corporation to compel them to interplead. He alleged therein that the three corporations claimed
title and right of possession over the goods deposited in his warehouse and that he was uncertain
which of them was entitled to the goods. After due proceedings, judgment was rendered by the
court declaring that X Corporation was entitled to the goods. The decision became final and
executory.
Raphael filed a complaint against X Corporation for the payment of PI00,000.00 for
storage charges and other advances for the goods. X Corporation filed a motion to dismiss the
complaint on the ground of res judicata. X Corporation alleged that Raphael should have
incorporated in his complaint for interpleader his claim for storage fees and advances and that for his
failure he was barred from interposing his claim. *****Raphael replied that he could not have
———————————-
3.2.6. Joinder and mis-joinder of CAUSES of action [s5-6;r2]

1. When there is JOINDER of cause of action [s5]:152 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
2. REQUISITES/conditions for joinder [s5]:******
(a) The party joining the cause of action shall **comply with the rules on
joinder of PARTIES;153
i. Right to relief arises out of the same transaction or series of
transaction
ii. There is common question of law of law or fact
claimed storage fees and other advances in his complaint for interpleader because he was not
yet certain as to who was liable therefore. Resolve the motion with reasons. (4%)
SUGGESTED ANSWER: The motion to dismiss should be granted. ******Raphael should
have incorporated in his complaint for interpleader his claim for storage fees and advances.
They are part of Raphael’s cause of action which he may not split. The filing of the interpleader
is available as a ground for the dismissal of the second case. (Sec. 4, Rule 2, 1997 Rules of Civil
Procedure.) *****It is akin to a compulsory counterclaim which, if not set up, is barred. (Sec. 2,
Rule 9, 1997 Rules of Civil Procedure). The law also abhors the multiplicity of suits; hence, the
claim for storage fees should have been made part of his cause of action in the interest of
complete adjudication of the controversy and its incidents. [Arreza v. Diaz, 364 SCRA 88 [2001]).
ALTERNATIVE SUGGESTED ANSWER: The motion to dismiss should not be granted.
Raphael not being a party to the case cannot file a counter complaint. A complaint for interpleader
which is a special civil action is merely an action for the parties to interplead among themselves.
The claim for storage fees is a separate and distinct cause of action. It is an ordinary action for
collection which cannot be joined in a special civil action. (Sec. 5(b) Rule 2)
152
What is the rule on joinder of causes of action? (2%)
The rule on joinder of causes of action is that 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,
provided that the rule on joinder of parties is complied with; the joinder shall not include special
civil actions or actions governed by special rules, but may include causes of action pertaining to
different venues or jurisdictions provided one cause of action falls within the jurisdiction of a
Regional Trial Court and venue lies therein; and the aggregate amount claimed shall be the test of
jurisdiction where the claims in all the causes of action are principally for the recovery of money.
(Sec. 5, Rule 2 of the 1997 Rules)
153
[] Bar 2002: P sued A and B in one complaint in the RTC-Manila, the cause of action against A
being an overdue promissory note for P300,000 and that against B being an alleged balance of
P300,00 on the purchase of goods sold on credit. Does the RTC-Manila have jurisdiction over the case?
NO. The joinder of the causes of action against A and B is not proper. For a joinder of causes
of action against several defendants to be proper, **the joinder must comply with the rules on
joinder of the parties under Sec. 6 of Rule 3. This rule requires that the causes of action joined should
arise out of the same transactions and there exists a question of law or facts common to both.
These requirements are not met under the facts. Since the causes of action cannot be joined, each
action must be the subject of a separate action. The totality rule has no application under the
facts of the case. The amount of each claim falls within the jurisdiction of the MTC.
(b) *****The joinder shall not154 include special civil actions155 or

actions governed by special rules;
(c) Where the cause of action are between the same parties but pertain to
different venues or jurisdictions: the joinder may be allowed in the RTC,156
provided that one of the cause of action falls within the jurisdiction of the RTC
and the venue lies therein;157 and
154
Q: Perry is a resident of Manila, while Ricky and Marvin are residents of Batangas City. They are the
co-owners of a parcel of residential land located in Pasay City with an assessed value of P100,000.00.
Perry borrowed PI00,000.00 from Ricky which he promised to pay on or before December 1, 2004.
However, Perry failed to pay his loan. Perry also rejected Ricky and Marvin's proposal to partition the
property. Ricky filed a complaint against Perry and Marvin in the Regional Trial Court of Pasay
City for the partition of the property. He also incorporated in his complaint his action against Perry
for the collection of the latter's PI00,000.00 loan, plus interests and attorney's fees. State with
reasons whether it was proper for Ricky to join his causes of action in his complaint for partition
against Perry and Marvin in the Regional Trial Court of Pasay City. (5%)(2005 Bar Question)
SUGGESTED ANSWER: It was not proper for Ricky to join his causes of action against
Perry in his complaint for partition against Perry and Marvin. The causes of action may be between
the same parties, Ricky and Perry, with respect to the loan but not with respect to the partition
which includes Marvin. The joinder is between a partition and a sum of money, but the partition is a
special civil action under Rule 69, which cannot be joined. (Sec. 5, Rule 2, 1997 Rules of Civil
Procedure). Also, the causes of action pertain to different venues and jurisdictions. The case for
a sum of money pertains to the municipal court and cannot be filed in Pasay City because the
plaintiff is from Manila while Ricky and Marvin are from Batangas City. (Sec. 5, Rule 2, 1997
Rules of Civil Procedure.)
155
The following are accurate statements on joinder of causes of action, except: (2012 BAR)
a. joinderofactionsavoidsmultiplicityofsuits.
b. joinder of actions may include special civil actions.
c. joinder of causes of action is permissive.
d. the test of jurisdiction in case of money claims in a joinder of causes of action, is the "totality
rule".
156
A sued B in the RTC of Quezon City, joining two causes of action: for partition of real property
and breach of contract with damages. Both parties reside in Quezon City but the real property is in
Manila. May the case be dismissed for improper venue? (2011 BAR)
(A) Yes, since causes of action pertaining to different venues may not be joined in one action.
(B) No, since causes of action pertaining to different venues may be joined in the RTC if one of the
causes of action falls within its jurisdiction.
(C) Yes, because special civil action may not be joined with an ordinary civil action.
(D) No, since plaintiff may unqualifiedly join in one complaint as many causes of action as he has
against opposing party.
Suggested answer is (B) but TOM thinks it’s (C) because partition is a special civil action which cannot
be joined with an ordinary civil action for breach.
157
The complaint filed before the Regional Trial Court of Manila states two (2) causes of action, one
for rescission of contract and the other for the recovery of One Hundred Thousand Pesos
(PI00.000.00), both of which arose out of the same transaction. Is the joinder of the two (2) causes of
action proper? Explain. (1996 Bar Question) Answer:
*****Yes, since the first cause of action for rescission of contract falls within the
jurisdiction of the Regional Trial Court of Manila, because the subject is not capable of
pecuniary estimation, and the second cause of action for recovery of P100,000.00 is within the
jurisdiction of a lower court and arose out of the same transaction, both may be joined in the
complaint filed with the Regional Trial Court. (Sec. 5 of Rule 2)
(d) Where the claims in all the cause of action are ***PRINCIPALLY for
recovery of money: the aggregate amount claimed shall be the test of
jurisdiction.
******NB: A joinder of causes of action is ONLY PERMISSIVE,158
NOT COMPULSORY; hence, a party may desire to file a single suit for
each of his claims (Riano, 2014).
2. When there is MISJOINDER of cause of action: There is a misjoinder when
two or more causes of action were joined in one complaint when they should
not be so joined. *****This 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 by filing a motion in relation
thereto (Sec. 6, Rule 2). There is no sanction against non-joinder of separate
causes of action. Non-joinder of causes of action should be joined.
a. Effect: it is not a ground for dismissal of an action;
b. What to do with it: it may, on motion of a party or on the initiative of the
court, be severed and proceeded with separately. EG: when the action includes
both claim for damages and unlawful detainer (a special civil action), both
cannot be joined (see the requisites, supra). Hence, file a *****MOTION FOR THE
SEVERANCE of the cause of action so they could be proceeded with separately.
[] Q: Can there be a valid judgment in case of misjoined causes of
action? YES, while parties to an action may assert in one pleading, in alternative or
otherwise, as many causes of action as they may have against the opposing party,
******such joinder of causes of action is subject to a condition, inter alia, that
the joinder shall not include special civil actions governed by special rules.
Nevertheless, ****misjoinder of causes of action is not a ground for
dismissal. Indeed, the courts have the power, acting upon the motion of a party
to the case or sua sponte,(on its own accord) to order the severance of the
misjoined cause of action to be proceeded with separately. However, *******if
there is no objection to the improper joinder or the court did not motu
proprio direct a severance, then there exists NO BAR IN THE SIMULTANEOUS
ADJUDICATION of all the erroneously joined causes of action. It should be
emphasized that the foregoing rule only **applies if the court trying the case
HAS JURISDICTION over all of the causes of action therein notwithstanding
the misjoinder of the same. If the court trying the case has no jurisdiction over a
misjoined cause of action, then such misjoined cause of action has to be
severed, any adjudication rendered by the court with respect to the same would
be a NULLITY (Ada v. Baylon, G.R. No. 182435, August 13, 2012).
158
B. A secured two loans from B, one for P500.000.00 and the other for P1,000,000.00, payable on
different dates. Both have fallen due. Is B obliged to file only one complaint against A for the recovery
of both loans? Explain. (2%) SUGGESTED ANSWER:
No. Joinder is only permissive since the loans are separate loans which may be governed
by the different terms and conditions. The two loans give rise to two separate causes of action
and may be the basis of two separate complaints.
3. Splitting of cause of action vs. Joinder of causes of action****

Splitting of Cause of Action Joinder of Causes of Action
It is the practice of dividing one cause of action Assertion of as many causes of action as a party may
into different parts and making each part the have against another in one pleading alone
subject of a separate complaint (Bachrach v. (Sec. 5, Rule 2).
Icaringal, 68 Phil. 287).
Prohibited. A party may not institute more than one Encouraged (no sanction against non-joinder of
suit for a single cause of action (Sec. 3, Rule 2). separate causes of action since a plaintiff needs only
a single cause of action to maintain an
action).
It causes multiplicity of suits and double It minimizes multiplicity of suits and
vexation on the part of the defendant (Riano, inconvenience on the parties.
2014).
4. Bar 1996: Joinder of cause of action vs. Joinder of parties159 *****

Joinder of Cause of Action Joinder of Parties
It refers to the procedural device whereby a It may be employed when there are various
party who asserts various claims against the same causes of actions that accrue in favor of one or
or several parties, file all his claims against them more plaintiffs against one or more defendants i.e. there
in a single complaint. is plurality of parties.
It will not necessarily involve a joinder of It may or may not be involved in a joinder of causes of
parties. actions (Riano, 2014).
———————————————————————————————
159
Distinguish joinder of causes of action from joinder of parties. (1996 Bar Question) Answer:
*****Joinder of causes of action may be made in the same complaint by one party against
another; or by or against several parties. ******In cases of joinder of causes of action by one party
against another, the totality of the demand determines the Jurisdiction of the court. But in cases of
Joinder of causes of action by or against several parties, the right to relief must arise out of the same
transaction or series of transactions and there must be a common question of fact or law. If these
requisites are present, the totality of the demand determines the jurisdiction of the court. {Sec. 6 of
Rule 3; Flores vs. Mallare- Phiilips, 144 SCRA 377) [TOM: the answer is not to the point but it’s a
good one for distinguishing joinders of causes of action against one person vs. several persons].
3.3. Parties to civil actions [Rule 3]
3.3.1. Real parties-in-interest; indispensable parties; representatives as parties; necessary

parties; indigent parties; alternative defendants 118
Lack of legal capacity to sue vs. Lack of legal personality to sue 118
Kinds of parties in a civil action 119
REAL PARTY IN INTEREST (RPI) [s2] 120
INDISPENSABLE PARTIES [s7] 120
NECESSARY PARTIES [s8] 121
REPRESENTATIVES AS PARTIES [s3] 123
Rule when the defendant’s name or identity is unknown 124
INDIGENT PARTIES [s21] 125
ALTERNATIVE DEFENDANTS [s13] 125
SPOUSES AS PARTIES [s4] 127
MINORS & INCOMPETENT PERSONS AS PARTIES [s5] 127
Pro forma party 128
Quasi party 129
3.3.2. Compulsory and permissive joinder of parties 129
3.3.3. Misjoinder and non-joinder of parties 129
3.3.4. Class suit 130
3.3.5. Suits against entities without juridical personality 132
3.3.6. Effect of death of party-litigant, infra 134
3.3.7. When the party is a public officer (added by TOM) [s17] 134
———————————————————————————————
3.3.1. Real parties-in-interest; indispensable parties; representatives as

parties; necessary parties; indigent parties; alternative defendants
WHO MAY BE PARTIES IN A CIVIL ACTION [S1]

1. natural persons;
2. juridical persons;
a. The State and its political subdivisions;
b. Other corporations,160 institutions and entities for public interest or
purpose, created by law; and
c. Corporations, partnerships and associations for private interest or
purpose to which the law grants a juridical personality, separate and distinct from
160
*cf. summons RE right of foreign corporations to sue.
that of each shareholder, partner or member (Art. 44, NCC).

3. entities authorized by law
a. Corporation by estoppel is precluded from denying its existence and the
members thereof can be sued and be held liable as general partners (Sec. 21,
Corporation Code);
b. A contract of partnership having a capital of three thousand pesos or
more but which fails to comply with the registration requirements is
nevertheless liable as a partnership to third persons (Art. 1772 in relation to Art.
1768, NCC);
c. Estate of a deceased person (Limjoco v. Intestate Estate of Fragante,
G.R. No. L-770, April 27, 1948);
d. A legitimate labor organization may sue and be sued in its registered
name (Art. 242[e], Labor Code of the Philippines);
e. The Roman Catholic Church may be a party and as to its properties, the
archbishop or diocese to which they belong (Versoza v. Hernandez, G.R. No. L-25264,
November 22, 1926);
f. A dissolved corporation may prosecute and defend suits by or against it
provided that the suits:
i. Occur within three years after its dissolution; and
ii. The suits are in connection with the settlement and closure of
its affairs (Sec. 112, Corporation Code).
PLAINTIFF REFERS TO:

1. the claiming party,
2. the counter-claimant,
3. the cross-claimant, or
4. the third (fourth, etc.) — party plaintiff.
DEFENDANT REFERS TO:

1. the original defending party,
2. the defendant in a counter-claim,
3. the cross-defendant, or
4. the third (fourth, etc.) — party defendant.
**NB: an unwilling co-plaintiff may be made a defendant [s10]: If the consent
of any party who should be joined as plaintiff can not be obtained:
a. he may be made a defendant and
b. the reason therefor shall be stated in the complaint.
Lack of legal capacity to sue vs. Lack of legal personality to sue

Lack of Legal Capacity to Sue Lack of Legal Personality to Sue
It refers to plaintiff’s general disability to sue such as on The plaintiff is not the real party in
account of minority, insanity, incompetence, lack of juridical interest (Columbia Pictures vs. CA
personality or any other general disqualifications of a party 1996).
******Ground for a motion to dismiss based on the Ground for motion to dismiss for
ground of lack of legal capacity to sue (Ibid.). complaint states no cause of action
(Casimiro v. Roque)
Kinds of parties in a civil action

1. Real parties in interest;
2. Indispensable parties;
3. Representatives as parties;
4. Necessary parties;
5. Indigent parties;
6. Pro-forma parties.
REAL PARTY IN INTEREST (RPI) [s2]

1. He is the party who:******
a. stands to be BENEFITED OR INJURED by the judgment in the suit, or
b. is ENTITLED to the AVAILS of the suit.
**NB: unless otherwise authorized by law or the Rules, every action must be
prosecuted or defended in the name of the real party in interest.161
2. To be a real party-in-interest, the interest must be ‘REAL,’ which is a
PRESENT SUBSTANTIAL INTEREST as distinguished from a mere expectancy
or a future, contingent subordinate or consequential interest (Rayo v.
Metrobank, G.R. No. 165142, December 10, 2007). It is an interest that is
MATERIAL AND DIRECT, as distinguished from a mere incidental
interest in the question (Samaniego v. Aguila, G.R. No. 125567, June 27, 2000).
3. *****What if there is TRANSFER OF INTEREST? [s19].
a. GR: the action may be continued by or against the original party
b. XPN: unless the court upon motion directs the person to whom the
interest is transferred to be
i. substituted in the action or
ii. joined with the original party.
4. RPI in various transactions:
a. Pacto de retro sale: In an action for the consolidation of title and
ownership in the name of vendee in accordance with Article 1616 of the Civil
161
Q: Isagani drove the car of his father, Pedro, and left it in the parking area of the Fairview motel
where he was a guest. Isagani entrusted the key of the car to a security guard hired by the Prime Resort
Company, the owner/operator of the motel. Emilio, pretending to be the brother of Isagani, got the
key from the security guard and drove the car away. The car was never recovered. Later, Pedro sued
Prime Re¬sort for the value of the carnapped vehicle plus damages. Prime Resort sets up the defense
that Pedro has no interest in the case, hence, has no cause of action, as he was not the guest of the
motel but his son, Isagani. Is the defense tenable? Explain. (1989 Bar Question)
Answer: No, because Pedro is the owner of the car which was carnapped due to the fault or
negligence of the security guard of the owner/operator of the motel in which his son Pedro was a
guest. Hence, Pedro is a real party in interest. (Dilson Enterprises vs. IAC, Feb. 27, 1989).
Code, the indispensable parties are the parties to the Pacto de Retro Sale—
the vendor, the vendee, and their assigns and heirs.162
b. Writ of Kalikasan: West Tower Corp. represents the common
interest of its unit owners and residents, and has the legal standing to file and
pursue the petition.163 NB: Juridical persons can be intervenors and RPI.164
c. Ejectment suit: A person who is not a party in an ejectment suit has NO
LEGAL PERSONALITY to petition the annulment of such judgment.165
d. Assignee of the lessor is a RPI in an unlawful detainer case.166
INDISPENSABLE PARTIES [s7]

1. Who are IPs? ******a party without whom NO FINAL
162
Villamin, as the alleged source of the consideration being a common-law wife of the vendee, is
**not privy to the contract of sale—she was neither an heir nor an assignee. Therefore, she could
not maintain an action for consolidation of ownership and title of the subject property in her name
since she was not a party to the said contract. **Where there is no privity of contract, there is
likewise no obligation or liability to speak about. Vda. De Rojales v. Dime, February 10, 2016
*****NB: privy denotes the idea of succession [Republic vs. Grijaldo], thus, he who by
succession is placed in the position of one of those who contracted the judicial relation and
executed the private document and appears to be substituting him in the personal rights and obligation
is a privy.
163
While a condominium corporation has limited powers under RA 4726 [The Condominium Act], it is
empowered to pursue actions in behalf of its members. In the instant case, the condominium
corporation is the management body of West Tower and deals with everything that may affect
some or all of the condominium unit owners or users. It is of no moment that only five residents of
West Tower signed their acquiescence to the filing of the petition for the issuance of the Writ of
Kalikasan, as the merits of such petition is not measured by the number of persons who signified
their assent thereto, but on the existence of a prima facie case of a massive environmental
disaster. West Towers Condominium v. First Phil. Industrial Corporation, June 16, 2015
164
Under Sec. 1, Rule 7 of the Rules of Procedure for Environmental Cases does not require that a petitioner
be directly affected by an environmental disaster. The rule clearly allows juridical persons to file
the petition on behalf of persons whose constitutional right to a balanced and healthful ecology is
violated, or threatened with violation.
Thus the Catholic Bishops’ Conference of the Philippines, Kilusang Makabansang Ekonomiya, Inc.,
Women’s Business Council of the Philippines, Inc., Junior Chambers International Philippines, Inc. – San Juan
Chapter, Zonta Club of Makati Ayala Foundations, and the Consolidated Mansions Condominium Corporation,
may intervene in this case. West Towers Condominium v. First Phil. Industrial Corporation, June 16, 2015
165
In Apostolic Vicar of Tabuk v. Spouses Sison, January 27, 2016, respondents filed an forcible entry
(detentacion) case against a priest who allegedly usurped part of their property, he representing the
Apostolic Vicariate of Mountain Province. The court rendered judgment in favor of the spouses. Now,
the Apostolic Vicar of Tabuk claims that is is the real owner of the property and that the Apostolic
Vicariate of Mountain Province has been dissolved, hence, it filed a petition for annulment of
judgment The Court ruled that the Vicariate of Tabuk, who was not a party in the ejectment suit, has
NO LEGAL PERSONALITY to petition the annulment of such judgment.
166
In which of the following cases is the plaintiff the real party in interest? (2011 BAR)
(A) A creditor of one of the co-owners of a parcel of land, suing for partition
(B) An agent acting in his own name suing for the benefit of a disclosed principal
(C) Assignee of the lessor in an action for unlawful detainer
(D) An administrator suing for damages arising from the death of the decedent
DETERMINATION can be had of an action. They shall be joined either as

plaintiffs or defendants.
2. Tests to determine whether a party is an indispensable party167
a. Can relief be afforded to the plaintiff without the presence of the other party?
b. Can the case be decided on its merits without prejudicing the rights of
the other party? (Rep. v. Sandiganbayan, G.R. No. 152154, July 15, 2003).
****NB: The presence of indispensable parties is a CONDITION for the
exercise of juridical power and when an indispensable party is not before the court, the
ACTION SHOULD BE DISMISSED (Riano, 2014, citing Lucman v. Malawi,
G.R. No. 159794, December 19, 2006).
3. *****Failure to implead an indispensable party is not a ground for dismissal.
It’s a ground for the court to order that they be impleaded. If the order is not
followed, the court can dismiss the case on the ground of failure to obey an
order of the court.168
4. Example of an indispensable party: The owners of property over which
reconveyance is asserted are indispensable parties and must be joined in the
action.169
167
Q: A filed an action against B, driver of the truck. C. owner of said truck, and D, insurer of the
truck, for damages when the truck rammed his car. A and D entered into a compromise agreement
upon an amount lower than that sued upon by A against all three defendants. Accordingly, the
court dismissed the case against D. B and C moved to dismiss the case against them on the
ground that, being indispensable parties under a common cause of action, non-inclusion of D
would not make the case prosper. Are the defendants indispensable parties? How would you resolve
the motion. (1996 Bar Question) Answer:
I would deny the motion. D is not an indispensable party. *****The liability of the insurer
D is based on the contract of insurance whereas the liability of B and C is based on quasi-delict.
Hence, the plaintiff does not have a common cause of action against all the defendants and the
dismissal of the complaint against D will not affect the complaint against B and C. (Inson vs. Court of
Appeals. 239 SCRA 58)
168
BAR 2017: Q: Hanna, a resident of Manila, filed a complaint for the partition of a large tract of
land located in Oriental Mindoro. She impleaded her two brothers John and Adrian as defendants but
did not implead Leica and Agatha, her two sisters who were permanent residents of Australia. Arguing
that there could be no final determination of the case without impleading all indispensable parties,
John and Adrian moved to dismiss the complaint. Does the trial court have a reason to deny the
motion? Explain your answer. SUGGESTED ANSWER: Yes, the trial court has a reason to deny the
motion to dismiss. Under the Rules of Civil Procedure, non-joinder of parties, even indispensable
ones, is not a ground of a motion to dismiss. [S11 R3; Vesagas v. CA, 371 SCRA 508 (2001)] (Jurist
Review Center, Inc.)
169
Q: Half-brothers Roscoe and Salvio inherited from their father a vast tract of unregistered
land. Roscoe succeeded in gaining possession of the parcel of land in its entirety and transferring the
tax declaration thereon in his name. Roscoe sold the northern half to Bono, Salvio’s cousin. Upon
learning of the sale, Salvio asked Roscoe to convey the southern half to him. Roscoe refused as he
even sold one-third of the southern half along the West to Carlo. Thereupon, Salvio filed an
action for the reconveyance of the southern half against Roscoe only. Carlo was not impleaded.
After filing his answer, Roscoe sold the middle third of the southern half to Nina. Salvio did not
amend the complaint to implead Nina. After trial, the court rendered judgment ordering
NECESSARY PARTIES [s8]

1. Who: a party one who is not indispensable but who ought to be joined as a
party******
a. if COMPLETE RELIEF is to be accorded as to those already parties, or
b. for a complete determination or settlement of the claim subject of the action.
2. When a necessary party is not joined [s9]: the pleader
a. shall set forth his name, if known, and
b. shall state why he is omitted.
3. Court action: 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.
*Section 12, Rule VI: When the presence of parties other than those to the
original action is required for the granting of complete relief in the determination
of a counterclaim or cross-claim, the court shall order them to be brought in as
defendants, if jurisdiction over them can be obtained.
4. Bar 1998: Effect of non-joinder of a necessary party**
a. The court may order the inclusion of the omitted necessary party if
jurisdiction over his person may be obtained;
b. The failure to comply with the order for his inclusion, without
justifiable cause, shall be deemed a waiver of the claim against such party;
c. 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
Roscoe to reconvey the entire southern half to Salvio. The judgment became final and executory. A
writ of execution having been issued, the Sheriff required Roscoe, Carlo and Nina to vacate the
southern half and yield possession thereof to Salvio as the prevailing party. Carlo and Nina refused,
contending that they are not bound by the judgment as they are not parties to the case. Is the
contention tenable? Explain fully. (4%)(2008 Bar Question) SUGGESTED ANSWER:
Yes, in case of Transfer of interest pending litigation, the action may be continued by or
against the original party unless the court, upon motion, directs a person to be substituted in the action or
joined with the original party (Sec. 19, Rule 3, Rules of Court). The owners of property over which
reconveyance is asserted are indispensable parties and must be joined in the action. Accordingly,
the contention of Carlo who is such party to the action filed by Salvio, is tenable. *****He is not
bound by the judgment because he became a co-owner of the land before the case was filed and
yet he has not been included as a party thereto [Matuguina Integrated Word Products, Inc. v. Court of
Appeals, 263 SCRA 490[1996]; Ma. Valentina Santana-Cruz v. Court of Appeals, et. ah, 361 SCRA 520
[2001]). *****Nina, however is a successor-in-interest of Roscoe and privy to the case. Hence,
she is bound by the judgment as against Roscoe although she is not party to the case (Sec. 19,
Rule 3; Cabresos v. Tero, 166 SCRA 400 [1988]). ******A judgment is conclusive between the
parties and their successors-in-interest by title subsequent to the case (Sec. 47, Rule 39, Rules of
Court).
[Parenthetically, it is worth mentioning that the sale of the northern one-half of the vast tract of land
owned in common by Roscoe and Salvio, is void as to the northern half but valid as to the presumed one-half
undivided interest of Roscoe. The existence of the co-ownership must first be determined to exist
before the right of reconveyance on the basis of a constructive trust may prosper. However, in
the problem the judgment has become final and executory, so the problem is centered on the remedial
law aspect.
prejudice to the rights of such necessary party.

5. Indispensable party vs. Necessary party******
Indispensable Parties Necessary Parties
Parties in interest without whom no final A necessary party is one who is not indispensable but
determination can be had of an action who ought to be joined as a party if complete relief is
shall be joined either as plaintiffs or to be accorded as to those already parties, or for a
defendants (Sec. 7, Rule 3). complete determination or settlement of the claim
Must be joined under any and all subject of the action (Sec.8, Rule 3). Should be joined
conditions because the court cannot whenever possible, however, the action can proceed
proceed without him (Riano, 2014). even in their absence because his interest is separable from
that of indispensable party (Ibid.).
No valid judgment if they are not joined. The case may be determined in court but the judgment
The absence of an indispensable party therein will not afford a complete relief in favor of
renders all subsequent actions of the court the prevailing party.
null and void for want of authority to
act, not only as to the absent parties but even as to
those present (Riano, 2014).
The non-joinder of an indispensable or a Whenever in any pleading in which a claim is asserted a
necessary party is not by itself ipso facto necessary party is not joined, the pleader shall set
a ground for the dismissal of the action. forth his name, if known, and shall state why he is
The court should order the joinder of omitted. Should the court find the reason for the
such party and non-compliance with the omission unmeritorious, it may order the inclusion of
said order would be a ground for the the omitted necessary party if jurisdiction over his
dismissal of the action (Feria & Noche, person may be obtained. The failure to comply with the order
2013). for his inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such party.
(Rule 3, Sec. 9)
REPRESENTATIVES AS PARTIES [s3]

1. Action prosecuted in the name of the real party in interest: Every action must
be prosecuted and defended in the name of the real party-in-interest (Sec. 2, Rule
3). Where the action is allowed to be prosecuted or defended by a representative
party or someone acting in a fiduciary capacity, the **beneficiary shall be
included in the title of the case and shall be deemed to be a real party-in-
interest (Sec. 3, Rule 3).
**NB: 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. (Sec. 3, Rule 3).
2. Applicability: where the action is allowed to be prosecuted and defended by
a. a representative or
b. someone acting in a fiduciary capacity
3. Who is included in the title of the case? the beneficiary: he shall be deemed to
be the RPI.
4. Who may be a representative?
a. a trustee of an express trust,
b. a guardian,
c. an executor or administrator, or
d. a party authorized by law or these Rules.
5. Rule on an agent acting in his own name and for the benefit of an undisclosed
principal
• GR: he may sue or be sued without joining the principal;
• XPN: except when the contract involves things belonging to the principal.
Rule when the defendant’s name or identity is unknown

1. When the identity or name of a defendant is unknown [s14]: he may be sued as
the unknown owner , heir, devisee, or by such other designation as the case may require.
2. NB: when his identity or true name is discovered, the pleading must be
amended accordingly.
INDIGENT170 PARTIES [s21]

1. They are those:
a. Whose gross income and that of their immediate family do not
exceed an amount double the monthly minimum wage of an employee171;
and
b. Who do not own real property with a fair market value as stated in
the current tax declaration of more than Php 300,000.00
2. Rule on indigent litigants:
a. If the applicant for exemption meets the SALARY AND PROPERTY
REQUIREMENTS under Sec. 19, Rule 141, THEN THE GRANT OF THE
170
*He is one who has no money or property sufficient and available for food, shelter and basic
necessities for himself and his family (Sec. 21, Rule 3).
171
BAR 2016: Q: Spouses Marlon and Edith have three (3) children ages 15, 12 and 7, who are
studying at public schools. They have a combined gross monthly income of P30,000.00 and they stay in
an apartment in Manila with a monthly rent of P5,000.00. The monthly minimum wage per employee
in Metro Manila does not exceed P13,000.00. They do not own any real property. The spouses want to
collect a loan of P25,000.00 from Jojo but do not have the money to pay the filing fees.
[a] Would the spouses qualify as indigent litigants under Section 19, Rule 141 on Legal Fees?
[b] If the spouses do not qualify under Rule 141, what other remedy can they avail of under the rules to
exempt them from paying the filing fees?
SUGGESTED ANSWER: (a) No, the spouses would not qualify as indigent litigants under Section
19, Rule 141 since their combined gross monthly income of P30,000 exceeds P26,000, the amount
double the monthly minimum wage.
(b) The other remedy the spouses can avail of under the rules to exempt them from paying the filing
fees is to apply for exemption pursuant to the “indigency test” under Section 21, Rule 3 of the Rules of
Court if they can prove that they have “no money or property sufficient and available for food, shelter
and basic necessities for [themselves] and their family.” (Sps. Algura v. City of Naga, 30 October
2006). (Jurist Review Center, Inc. )
APPLICATION IS MANDATORY.
b. However, if the trial court finds that one or both requirements have
not been met, then it would SET A HEARING to enable the applicant to prove
that the he has “no money or property sufficient and available for food, shelter
and basic necessities for himself and his family” as provided in Sec. 21, Rule 3. In
that hearing, the adverse party may adduce countervailing evidence to
disprove the evidence presented by the applicant; after which the trial court will rule on
the application depending on the evidence adduced. In addition, Sec. 21, Rule 3 also
provides that the **adverse party may later still contest the grant of such
authority at ANY TIME BEFORE JUDGMENT is rendered by the trial court,
possibly based on newly discovered evidence not obtained at the time the
application was heard (Algura v. LGU of Naga, G.R. No. 150135, October 30,
2006).
3. Exemption from fees—Authority as an indigent party includes an exemption
from the payment of:
a. Docket fees and other lawful fees;172
b. **Transcript of stenographic notes (Sec. 21, Rule 3).
*GR: the amount of the docket and other lawful fees which the indigent
was exempted from paying shall be a lien on any judgment rendered in the case
favorable to the indigent
*XPN: unless the court otherwise provides.
4. Procedure:
a. ex parte application
b. hearing
*The court court may authorize a party to litigate his action, claim or
defense as an indigent if the court is satisfied that the party is one who has no
money or property sufficient and available for food, shelter and basic necessities for
himself and his family.
5. May an adverse party contest the grant of such authority? YES. When? at any
time before judgment is rendered by the trial court.
6. What if the court determines after hearing that the party declared as an
indigent is in fact a person with sufficient income or property? the proper
docket and other lawful fees shall be assessed and collected by the clerk of
court. **NB: If payment is not made within the time fixed by the court,
execution shall issue on the payment thereof, without prejudice to such other
sanctions as the court may impose.
172
Benefits: They shall be exempt from the payment of legal fees (Sec. 19, Rule 141 as amended by
A.M. No. 04-2-04-SC).
ALTERNATIVE DEFENDANTS173 [s13]

[] Suing a defendant in the alternative: Where the plaintiff is uncertain against
who of several persons he is entitled to relief, he may join any or all of them as
defendants in the alternative, *****although a right to relief against one may be
inconsistent with a right of relief against the other.
SPOUSES AS PARTIES [s4]

1. GR: husband and wife shall sue or be sued JOINTLY, except as provided by
law (Sec. 4, Rule 3). Husband and wife shall sue and be sued jointly inasmuch as
both are co-administrators of the community property under the system of
absolute community of property, as well as the conjugal partnership property
(Feria & Noche, 2013).
2. XPNs: except as provided by law.
a. A spouse without just cause ABANDONS the other or fails to comply
with his or her obligations to the family with respect to marital, parental or
property relations (Arts. 101174 & 108,175 Family Code (FC));
b. A spouse of age mortgages, encumbers, alienates or otherwise disposes of
his or her EXCLUSIVE PROPERTY (Art. 111,176 FC);
c. The REGIME OF SEPARATION OF PROPERTY governs the
property relations between spouses (Art. 145,177 FC);
173
Allan was riding a passenger jeepney driven by Ben that collided with a car driven by Cesar, causing
Allan injury. *****Not knowing who was at fault, what is the best that Allan can do? (2011 BAR)
(A) File a tort action against Cesar.
(B) Await a judicial finding regarding who was at fault.
(C) Sue Ben for breach of contract of carriage.
(D) Sue both Ben and Cesar as alternative defendants.
174
Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her
obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial
separation of property or for authority to be the sole administrator of the absolute community,
subject to such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital, parental or
property relations.
A spouse is deemed to have abandoned the other when her or she has left the conjugal
dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period
of three months or has failed within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of returning to the conjugal
dwelling. (
175
Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership
in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their
marriage settlements.
176
Amended by RA 10572: “Art. 111. Either spouse may mortgage, encumber, alienate or otherwise
dispose of his or her exclusive property.”
177
Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate
estate, without need of the consent of the other. To each spouse shall belong all earnings from his
or her profession, business or industry and all fruits, natural, industrial or civil, due or received during
the marriage from his or her separate property.
*NB: In the cases provided for (a) to (c), the presentation of the final
judgment against the guilty or absent spouse shall be enough basis for the
grant of the decree of judicial separation of property. **Despite the separation
of property, one spouse may end up being sued and held answerable for the
liabilities incurred by the other spouse because “The liability of the spouses to
creditors for family expenses, however, be SOLIDARY” (Riano, 2014, citing
Art. 146,178 Family Code of the Philippines).
d. Art. 135. Any of the following shall be considered sufficient cause for
judicial separation of property:
i. That the spouse of the petitioner has been sentenced to a penalty
which carries with it civil interdiction;
ii. That the spouse of the petitioner has been judicially declared an
absentee;
iii. That loss of parental authority of the spouse of petitioner has
been decreed by the court;
iv. That the spouse of the petitioner has abandoned the latter or
failed to comply with his or her obligations to the family as provided for in
Art. 101;
v. That the spouse granted the power of administration in the
marriage settlements has abused that power; and
vi. That at the time of the petition, the spouses have been
separated in fact for at least one year and reconciliation is highly improbable.
e. Art. 142. The administration of all classes of exclusive property of either
spouse may be transferred by the court to the other spouse:
i. When one spouse becomes the guardian of the other;
ii. When one spouse is judicially declared an absentee;
iii. When one spouse is sentenced to a penalty which carries with
it civil interdiction; or
iv. When one spouse becomes a fugitive from justice or is in hiding
as an accused in a criminal case.
*NB: If the other spouse is not qualified by reason of incompetence,
conflict of interest, or any other just cause, the court shall appoint a SUITABLE
PERSON to be the administrator.
MINORS & INCOMPETENT PERSONS AS PARTIES [s5]

1. BEFORE the case: they may sue or be sued with the assistance of their father,
mother, guardian, or if he has none, a guardian ad litem.
2. DURING the case: If a party becomes incompetent or incapacitated [s18],
the court, upon motion with notice, may allow the action to be continued by or
178
Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of
insufficiency or default thereof, to the current market value of their separate properties.
The liabilities of the spouses to creditors for family expenses shall, however, be solidary.
against the incompetent or incapacitated person assisted by his legal guardian

or guardian ad litem.
Pro forma party

[] One who is joined as a plaintiff or defendant, not because such party has any
real interest in the subject matter or because any relief is demanded, but merely
because the technical rules of pleadings require the presence of such party on
the record (Samaniego v. Agulia, G.R. No. 125567, June 27, 2000).
Quasi party
[] Those in whose behalf a class or representative suit is brought.
—————————————————
3.3.2. Compulsory and permissive joinder of parties

COMPULSORY & PERMISSIVE JOINDER OF PARTIES [Sections 6 & 7]
1. Compulsory joinder of parties: applies to indispensable parties, since without
them, no final determination can be had of an action [s7] The presence of all
indispensable parties is a conditio sine qua non for the exercise of judicial
power. It is precisely when an indispensable party is not before the court that the
action should be dismissed. Thus, the plaintiff is mandated to implead all the
indispensable parties, considering that the absence of one such party renders all
subsequent action of the court null and void for want of authority to act, not
only as to the absent parties but even as to those present. One who is a party to a case is not
bound by any decision of the court; otherwise, he will be deprived of his right to
due process (Sepulveda, Sr. v. Pelaez, G.R. No. 152195, January 31, 2005).
2. Permissive joinder of parties: it applies to [s6]:
a. all persons in whom or against whom
b. any right to relief
c. 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;
d. they may join as plaintiffs or be joined as defendants in one complaint, except as
otherwise provided in these Rules
e. where any question of law or fact common to all such plaintiffs or to all
such defendants may arise in the action;
f. 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.
3. Requisites of permissive joinder of parties
a. Right to relief arises out of the same transaction or series of
transactions (connected with the same subject matter of the suit);
b. There is a question of law179 or fact common to all the plaintiffs or

defendants.
4. Rationale of Permissive Joinder of Parties: The purpose and aim of the
principle is to have controversies and the matters directly related thereto settled
once and for all once they are brought to the courts for determination.
Litigation is costly both to litigants and to the State, and the objective of
procedure is to limit its number or extent. In consonance with the above
principle, we have the rules against multiplicity of suits, the rule of estoppel
by judgment (Sec. 44, Rule 39), and the rule of res judicata (Sec. 45, Rule 39;
Fajardo v. Bayano, G.R. No. L-8314, March 23, 1956).
———————————
3.3.3. Misjoinder and non-joinder of parties
MISJOINDER & NON-JOINDER OF PARTIES

1. Is a misjoinder nor non-joinder of parties a ground for dismissal of an action?
NO.180 Parties may be dropped or added by order of the court on motion of any
179
*There is a question of law in a given case when the doubt or difference arises as to what the law is
on a certain state of facts; there is a question of fact when doubt arises as to the truth or the falsehood
of alleged facts (Manila Bay Club Corp. v. CA, et al., G.R. No. 110015, January 11, 1995).
180
X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan. Due to his
negligence, X hit and injured V who was crossing the street. Lawyer L, who witnessed the incident, offered his
legal services to V. V, who suffered physical injuries including a fractured wrist bone, underwent surgery
to screw a metal plate to his wrist bone. On complaint of V, a criminal case for Reckless Imprudence
Resulting in Serious Physical Injuries was filed against X before the Municipal Trial Court (MTC) of Sta.
Maria. Atty. L, the private prosecutor, did not reserve the filing of a separate civil action. V subsequently filed a
complaint for Damages against X and Y before the Regional Trial Court of Pangasinan in Urdaneta where
he resides. In his "Certification Against Forum Shopping," V made no mention of the pendency of
the criminal case in Sta. Maria. (Bar 2010)
[] Is V guilty of forum shopping? (2%) SUGGESTED ANSWER: No, V is not guilty of
forum shopping because the case in Sta. Maria, Bulacan, is a criminal action rued (sic) in the
name of the People of the Philippines, where civil liability arising from the crime is deemed also
instituted therewith; whereas the case rued (sued) in Urdaneta, Pangasinan, is a civil action for quasi-
delict in the name of V and against both X and Y for all damages caused by X and Y to V, which
may be beyond the jurisdiction of MTC. *****Hence, the tests of forum shopping, which is res
adjudicata or litis pendencia, do not obtain here. Moreover, substantive law (Art. 33 Civil Code) and
Sec. 3, Rule III, Revised Rules of Criminal Procedure, expressly authorize the filing. Such, action
for damages entirely separate and distinct from the criminal action.
[] Instead of filing an Answer, X and Y moved to dismiss the complaint for damages on the
ground of litis pendentia. Is the motion meritorious? Explain. (2%) SUGGESTED ANSWER: No,
the motion to dismiss base on alleged litis pendencia is without merit because there is no identity
of parties and subject matter in the two cases. Besides, Art. 33 of the Civil Code and Rule III, Sec. 3
of the Rules of Criminal Procedure authorize the separate civil action for damages arising from
physical injuries to proceed independently.
[] Suppose only X was named as defendant in the complaint for damages, may he move for
the dismissal of the complaint for failure of V to implead Y as an indispensable party? No, X may not
move for dismissal of the civil action for damages on the contention that Y is an indispensable party
party or on its own initiative at any stage the action and on such terms as are just.
NB: Any claim against a misjoined party may be severed and proceeded with
separately.181
2. ******The Rules prohibit the dismissal of a suit on the ground of non-
joinder or misjoinder of parties and allows the amendment of the complaint
**at any stage of the proceedings, through motion or on order of the court on its own
initiative (Sec. 11, Rule 3; Rep. v. Sandiganbayan, G.R. No. 152154, July 15,
2003). a. INDISPENSABLE PARTY:182 *****However, when the order of
the court to implead an indispensable party goes unheeded, the court may order
the dismissal of the case. The court is fully clothed with the authority to dismiss a
complaint due to the fault of the plaintiff as when, among others, he does not
comply with the order of the court (Riano, 2014, citing Sec. 3, Rule 17; Plasabas
who should be impleaded. *****Y (owner of the truck driven by X) is not an indispensable party
but only a necessary party. ******Besides, nonjoinder and misjoinder of parties is not a ground
for dismissal of actions (Rule 3, Sec. 11, Rules of Court).
[] X moved for the suspension of the proceedings in the criminal case to await the decision in
the civil case. For his part. Y moved for the suspension of the civil case to await the decision in the
criminal case. Which of them is correct? Explain. (2%) SUGGESTED ANSWER: Neither of them is
correct. Both substantive law (Art.33 of the Civil Code) and procedural law (Rule III, Sec. 3, and Rules
of Criminal Procedure) provide for the two actions to proceed independently of each other,
therefore, no suspension of action is authorized.
181
Q: Florencio sued Guillermo for partition of a property they owned in common. Guillermo filed a
motion to dismiss the complaint because Florencio failed to implead Hernando and Inocencio, the
other co-owners of the property. As judge, will you grant the motion to dismiss? Explain. (3%) (2009
NO, because the non-joinder of parties is not a ground for dismissal of action (Rule 3, Sec 11).
The motion to dismiss should be denied.
182
Sample case when the court ordered a JOINDER of an indispensable party (not a ground
for dismissal): Cacayuran's complaint against LBP and the municipal officers primarily prays that the
commercialization of the Public Plaza be enjoined and also, that the Subject Loans be declared
null and void for having been unlawfully entered into by the said officers. However, Cacayuran
failed to implead in his complaint the Municipality, a real party-in-interest and an indispensable party
that stands to be directly affected by any judicial resolution on the case, considering that:
(a) the contracting parties to the Subject Loans are LBP and the Municipality; and
(b) the Municipality owns the Public Plaza as well as the improvements constructed
thereon, including the Agoo People's Center.
The Court observes that it is only now that the issue of the Municipality's exclusion from
the instant case, despite its status as an indispensable party, became apparent. However, the
Court is not precluded from taking cognizance of the Municipality's status as an indispensable
party even at this stage of the proceedings. Indeed, the presence of indispensable parties is
necessary to vest the court with jurisdiction and, corollarily, the issue on jurisdiction may be raised at
any stage of the proceedings. Thus, as it has now come to the fore that any resolution of this case
would not be possible and, hence, not attain any real finality due to the non-joinder of the
Municipality, the Court is constrained to set aside all subsequent actuations of the courts a quo in
this case, including that of the Court's, and remand the case all the way back to the RTC for the
inclusion of all indispensable parties to the case and its immediate disposition on the merits. With
this, the propriety of the Municipality's present intervention is now mooted. Land bank of the
Philippines v. Cacayuran, April 22, 2015
v. CA, G.R. No. 166519, March 21, 2009). NB: *****the remedy of the un-
impleaded indispensable party is to either: i. file a motion to intervene [Rule 19];
or ii. file a petition for annulment of judgment [Rule 47].183
b. NECESSARY PARTY. Bar 1998:184 When may the court order the
joinder of a necessary party? A: If the reason given for the non-joinder of the
necessary party is found by the court to be unmeritorious, it may order the
pleader to join the omitted party if jurisdiction over his person may be obtained. The
failure to comply with the order of the court to include a necessary party,
without justifiable cause, shall be deemed a waiver185 of the claim against such
party (Sec. 9, Rule 3).
————————————
3.3.4. Class suit186

1. What it is: an action where one or some of the parties may sue for the benefit
183
Q: Strauss filed a complaint against Wagner for cancellation of title. Wagner moved to dismiss the
complaint because Grieg, to whom he mortgaged the property as duly annotated in the TCT,
was not impleaded as defendant. (2015)
a. Should the complaint be dismissed? NO. The complaint should not be dismissed because the
mere non-joinder of an indispensable party is not a ground for the dismissal of the action (Sec.
11, Rule 3; Republic v. Hon. Mangotara, G.R. No. 170375, July 7, 2010).
b. If the case should proceed to trial without Grieg being impleaded as a party to the case, what
is his remedy to protect his interest? A: If the case should proceed to trial without Grieg being
impleaded as a party, he may intervene in the action (Sec. 1, Rule 19). He may also file a petition for
annulment of judgment under Rule 47 of the Rules of Court.
******In Metrobank v. Hon. Floro Alejo, G.R. No. 141970, September 10, 2001, the Supreme
Court held that in a suit to nullify an existing Torrens Certificate of Title (TCT) in which a real estate
mortgage is annotated, the mortgagee is an indispensable party. In such suit, a decision
cancelling the TCT and the mortgage annotation is subject to a petition for annulment of
judgment, because the non-joinder of a mortgagee deprived the court of jurisdiction to pass upon
the controversy.
184
The effect of the non-joinder of a necessary party may be stated as follows: The court may order
the inclusion of an omitted necessary party if jurisdiction over his person may be obtained. ******The
failure to comply with the order for his inclusion without justifiable cause is a waiver of the claim
against such party. The court may proceed with the action but the judgment rendered shall be
without prejudice to the rights of such necessary party. (Sec. 9 of Rule 3, 1997 Rules of Civil
Procedure.)
185
Unexplained or unjustified non-joinder in the Complaint of a necessary party despite court
order results in (2011 BAR)
(A) the dismissal of the Complaint.
(B) suspension of proceedings.
(C) contempt of court.
(D) waiver of plaintiff’s right against the unpleaded necessary party.
186
Q: Distinguish a derivative suit from a class suit. (2005 Bar Question) SUGGESTED ANSWER:
*****A derivative suit is a suit in equity that is filed by a minority shareholder in behalf of a
corporation to redress wrongs committed against it, for which the directors refuse to sue, the real
party in interest being the corporation itself (Lim v. Lim-Yu, 352 SCRA 216 [2001]). A class suit is
filed on behalf of many persons so numerous that it is impracticable to join all as parties. (Sec.
12, Rule 3, 1997 Rules of Civil Procedure).
of all if the requisites for said action are complied with (Riano, 2014).
2. When applicable (requisites)******
a. the SUBJECT MATTER (SM)187 of the controversy is one of
COMMON or GENERAL INTEREST to many persons, i.e., there is a
community of interest188 among the suers. NB: Hence, if the interest is
SPECIFIC, that is, it can be separated from the interest of another, there is no
class suit.
b. parties affected are so numerous that it is impracticable to join all as
parties,
c. parties bringing the class suit are sufficiently numerous or
representative of the class and can fully protect the interests of all concerned;
d. Representatives sue or defend for the benefit of all (Sec. 12, Rule 3;
Sulo ng Bayan v. Araneta, G.R. No. L-31061, August 17, 1976). NB: Any party in
interest shall have the right to intervene to protect his individual interest.
3. Sample cases where there is a class suit:*****
a. general idea of INCONVENIENCE [Juana Complex vs. Fil-Estate]
b. environment—intergenerational responsibility;
4. Sample cases when there is NO class suit; NB: ******If the class suit is not
proper, the remedy of the parties is either to bring suit INDIVIDUALLY or
join them all as parties under the rule on permissive joinder of parties.
a. when the subject matter is the ailment of every person, although with a
common cause;
b. reputation is personal [Newsweek case]
c. individual lot owner’s interest is only wrt to his lot;
d. the interest of the plaintiffs in a complaint for damages due to shipwreck
is limited to the damages claimed by him.189
e. exposure to toxic wastes and fumes;190
187
(not the issue, as in the USA)
188
*NB: Even if the parties are numerous, there must be a **community of interest for a class suit
because the subject matter of the controversy must be of common interest among all of them. If
the class suit is not proper, the **remedy of the parties is either to bring suit INDIVIDUALLY or
join them all as parties under the rule on permissive joinder of parties.
189
[] Q: On January 4, 1988, a complaint for damages amounting to more than One and a half billion
pesos (Php 1.5Billion) was filed in the name and on behalf of the relatives or heirs of the victims of
the worst sea disaster in history, the sinking of the vessel Doña Pas caused by its collision with
another vessel. The complaint characterized the action as a class suit, prosecuted by 27 named
plaintiffs on their behalf and in representation of the approximately 4,000 persons who are all close
relatives and legal heirs of the passenger of the Doña Paz. Is this a proper class suit? A: No, because
the **interest of each of the plaintiffs is limited to the damages being claimed by him.
190
Q: Four hundred residents of Barrio Ramos initiated a class action suit through Albert, a former
mayor of the town, to recover damages sustained due to their exposure to toxic waste and fumes
emitted by the cooking gas plant of Top Fuel Gas Corporation located in the town.
Is the class suit proper? (1994 Bar Question) Answer:
No. The class suit is not proper. Each plaintiff suffered separate and distinct damages
from their exposure to the toxic waste and fumes emitted by the cooking gas plant. *****Each of
f. heirs of an airplane crash.191

5. ******Note that a class suit can be filed by a non-citizen resident, but not a
citizen’s suit under environmental laws.
———————————
3.3.5. Suits against entities without juridical personality

1. When the defendant is an entity without juridical personality (where two or
more persons not organized as an entity with juridical personality enter into a
transaction) [s15]: they may be sued under the name by which they are
generally or commonly known.
*NB: in the answer of such defendant, the name and addresses of the
persons composing said entity must all be revealed.
2. Persons associated in an entity without juridical personality, however, cannot
sue under such name.
——————————
3.3.6. Effect of death of party-litigant, infra
3.3.7. When the party is a public officer (added by TOM) [s17]

1. Requisites:
a. a public officer is a party in an action in his official capacity and
b. during its pendency, he dies, resigns, or otherwise ceases to hold office.
2. Effects of number 1: the action may be continued and maintained by or
against his successor if:
a. 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
b. that the successor adopts or continues or threatens to adopt or
continue to adopt or continue the action of his predecessor.
3. Rules before a substitution is made:
a. GR: the party or officer to be affected shall be given reasonable notice
of the application therefor and accorded an opportunity to be heard;
b. XPN: unless he expressly assented thereto.
them has to prove his or her damages. (Newsweek. Inc. v. Intermediate Appellate Court, 142 SCRA
171 [1986]; Heirs of passengers of Doha Paz, March 3. 1988).
191
Q: An airplane carrying 200 passengers crashed somewhere in the jungles of Agusan. All the
passengers and crew perished. Twenty (20) relatives of the fatalities filed for themselves and in
behalf of the relatives of all those who perished in the mishap a class suit for damages totaling
P5 Million against the airline. The propriety of the class suit is questioned by the defendant. Resolve
the issue. (1991 Bar Question) Answer:
A class suit is not proper in this case because there is no common or general interest in the
subject matter of the controversy. Each of the plaintiffs has a separate claim for damages.
(Newsweek v. IAC, 142 SCRA 171; Administrative Matter No. 88-1- 646-0 on Request of Plaintiffs,
heirs of passengers of the Dona Paz, March 3, 1988.)
4. ******Notice to the Solicitor General [s22] on the following: In any action involving
the validity of any treaty, law, ordinance, executive order, presidential
decree, rules or regulations.
[] NB: the court, in its discretion, may require the appearance of the
Solicitor General who may be heard in person or a representative duly designated by
him
———————————————————————————————
3.4. Venue of Actions [Rule 4]
3.4.1. Venue versus jurisdiction 136

3.4.2. Venue of real actions 136
3.4.3. Venue of personal actions [s2] 138
Venue in judicial settlement of estate 140
3.4.4. Venue of actions against non-residents [s3] 141
3.4.6. Effects of stipulations on venue 143
———————————————————————————————
3.4.1. Venue versus jurisdiction

1. DESPITE IMPROPER VENUE, COURT CAN ACT IF NOT OBJECTED
SEASONABLY. ******In civil proceedings, venue is procedural, not
jurisdictional, and may be waived by the defendant if not seasonably raised
either in a motion to dismiss or in the answer.192 Section 1, Rule 9 of the Rules of Court
192
Q: A law was passed declaring Mt. Karbungko as a protected area since it was a major watershed.
The protected area covered a portion located in Municipality A of the Province I and a portion
located in the City of Z of Province II. Maingat is the leader of Samahan ng Tagapag-ingat ng
Karbungko (STK), a people's organization. He learned that a portion of the mountain located in the
City of Z of Province II was extremely damaged when it was bulldozed and leveled to the ground, and
several trees and plants were cut down and burned by workers of World Pleasure Resorts, Inc. (WPRI)
for the construction of a hotel and golf course. Upon inquiry with the project site engineer if they had
a permit for the project, Maingat was shown a copy of the Environmental Compliance Certificate
(ECC) issued by the DENR-EMB, Regional Director (RD-DENR-EMB). Immediately, Maingat and
STK filed a petition for the issuance of a writ of continuing mandamus against RD-DENR-EMB
and WPRI with the RTC of Province I, a designated environmental court, as the RD-DENR-
EMB negligently issued the ECC to WPRI. On scrutiny of the petition, the court determined that
the area where the alleged actionable neglect or omission subject of the petition took place in
the City of Z of Province II, and therefore cognizable by the RTC of Province II. Thus, the court
dismissed outright the petition for lack of jurisdiction. (2015)
a. Was the court correct in motu proprio dismissing the petition? A: NO. The court was not
correct in motu propio dismissing the petition. While it appears that the alleged actionable neglect or
omission took place in the City of Z of Province II and, therefore cognizable by the RTC of Province
II, nonetheless, *****venue is not jurisdictional, and it can be waived in a special civil action
for continuing mandamus (Dolot v. Hon. Paje, G.R. No. 199199, August 27, 2013). Besides, under
Section 1, Rule 9 of the Rules of Court, defenses and objections not pleaded in the answer or in
the motion to dismiss are deemed waived. Hence, the court cannot motu propio dismiss the case
on the ground of improper venue.
b. Q: Assuming that the court did not dismiss the petition, the RD-DENR-EMB in his
Comment moved to dismiss the petition on the ground that petitioners failed to appeal the
issuance of the ECC and to exhaust administrative remedies provided in the DENR Rules and
Regulations. Should the court dismiss the petition? A: YES, the court should dismiss the petition
because *****the proper procedure to question defect in an ECC is to follow the DENR
administrative appeal process in accordance with the doctrine of exhaustion of administrative
thus expressly stipulates that defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived.193
2. Venue in Civil vs. Criminal cases: ******In civil cases, venue is not a matter
of jurisdiction (Hrs. of Lopez v. de Castro, 324 SCRA 591). Venue becomes
jurisdictional only in a criminal case. In the latter case, where the information
is filed not in the place where the offense was committed, the information may be
quashed for lack of jurisdiction over the offense charged (Sec. 3, Rule 117).
Consequence: A court cannot dismiss a case motu propio based on improper
venue in a civil case;194
3. HOW TO DETERMINE VENUE: You must consider two things
a. First: Is it a real or personal action?
b. Second: Is it covered by a special law or by stipulation? If venue
is determined by special law or by a particular rule in the ROC, you can’t
stipulate on venue. The law takes precedence over the stipulation.
[] Venue in judicial settlement of estate of deceased persons:
(2005 Bar Question):195 If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, the
venue shall be in the Regional Trial Court in the province in which he
resides at the time of his death. If he is an inhabitant of a foreign
country, the Regional Trial Court of any province in which he had
estate, is the proper venue.
remedies (Dolot v. Hon. Paje, G.R. No. 199199, August 27, 2013; Paje v. Casiño, G.R. No. 207257,
February 3, 2015).
193
As it relates to the place of trial, indeed, venue is meant to provide convenience to the parties,
rather than to restrict their access to the courts. In other words, unless the defendant seasonably
objects, any action may be tried by a court despite its being the improper venue. BPI Family
Saving Bank vs Yujuico
194
Can a complaint be dismissed by the court motu proprio based on improper venue? A: No.
Improper venue is not one of the grounds wherein the court may dismiss an action motu proprio
(Universal Corp. v. Lim, G.R. No. 154338, October 5, 2007). Unless and until the defendant objects to
the venue in a motion to dismiss, the venue cannot be truly said to be improperly laid, because **the
venue although technically wrong may be acceptable to the parties for whose convenience the
rules on venue have been devised (Dacuycuy v. IAC, 195 SCRA 641).
195
Q: State the rule on venue in judicial settlement of estate of deceased persons. (2%)(2005 Bar
The rule on venue in judicial settlement of estate of deceased persons may be stated as follows:
If the decedent is an inhabitant of the Philippines at the time of his death/whether a citizen or an alien,
the venue shall be in the Regional Trial Court in the province in which he resides at the time of his
death. It cannot be in the place where he used to live (Jao v. Court of Appeals, 382 SCRA 407
[2002]}. If he is an inhabitant of a foreign country, the Regional Trial Court of any province in which
he had estate, is the proper venue. The court first taking cognizance of the case shall exercise
jurisdiction to the exclusion of all other courts. When the marriage is dissolved by the death of the
husband or wife, the community property shall be inventoried, administered, and liquidated,
and the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both
spouses have died, the conjugal partnership shall be liquidated in the testate or intestate
proceedings of either. (Secs. 1 and 2, Rule 73, Rules of Court.)
4. WAIVER OF VENUE: Improper venue can be waived, if there is no

objection from the defendant.196
5. REMEDY FOR NOT FILING IN PROPER VENUE****
a. Motion to Dismiss, ground: improper venue
b. **A judge can NOT motu propio dismiss a case based on
improper venue. (Because this is waived if not raised in a MTD or the
answer). (Gumabon)
6. Summary of differences [Bar 2006]:197*****
Venue Jurisdiction
The place, or geographical area where an action is to be filed and Power of the court to hear and
tried (Manila Railroad Company v Attorney General, 20 Phil 523). decide a case
Can only be objected to before the other party files a Can be brought up at any stage of
responsive pleading (Answer) the proceedings
May be waived by: 1. Failure to object through a motion to Cannot be waived
dismiss or through an affirmative defense; 2. Stipulation of the
parties.
Procedural Substantive
May be stipulated by the parties Cannot be the subject of the
agreement of the parties
Establishes a relation between the plaintiff and defendant, Establishes a relation between the
or petitioner and respondent. court and the subject matter.
GR: Not a ground for a motu proprio dismissal It is a ground for a motu proprio
**XPN: In cases subject to summary procedure (Riano, 2014). dismissal (Riano, 2014).
————————————————-
3.4.2. Venue of real actions

1. The venue is LOCAL, hence the venue is the place where the real property
involved or, any portion thereof, is situated (Sec. 1, Rule 4).
*****NB: Always first level court: Forcible entry and detainer actions
196
Bar 2008: Angela, a resident of Quezon City, sued Antonio, a resident of Makati City before the
RTC of Quezon City for the reconveyance of two parcels of land situated in Tarlac and Nueva
Ecija, respectively. May her action prosper? Yes, the action may prosper because **improper venue
can be waived; and there appears to be no objection from the defendant. An action for
reconveyance of parcels of land partakes of an action to recover title to or possession of such
land; hence a real action which should be filed in the place where the parcels of land are situated in
Tarlac and Nueva Ecija.
197
Q: Distinguish jurisdiction from venue? 2% (2006 Bar Question) SUGGESTED ANSWER:
Jurisdiction is the power of the Court to decide a case on the merits, while venue refers to the place
where the suit may be filed. In criminal actions, however, venue is jurisdictional. Jurisdiction may
not be conferred upon a court by consent through waiver, but venue may be waived except in
criminal cases.
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. VENUE
FOR EJECTMENT CASES:
*GR: The MTC where the property or a portion thereof is
situated.
******XPN: if there’s a stipulation
**Can the venue for ejectment cases be stipulated?
198
Yes! The rule governing ejectment cases (Rule 70, Sec 1) merely
states that it should be filed in the MTC, but it doesn’t say which
MTC. (Other words, jurisdiction is indicated, but the venue is not.)
2. Coverage [s1]: Actions affecting
a. title to or
b. possession of real property,
c. or interest therein
3. The principal objective or relief sought is either ownership199 200 or
198
Q: “A” leased his commercial land and building in Malate, Manila, to “B”, a resident, of Malolos,
Bulacan. The Contract of Lease provided that in the event “A" violates the Contract, “B” may file
suit in Manila. A’s’ residence, and if “B” violates the Contract, “A” may sue “B” in Malolos. “B”
violated the Contract, entitling “A” to sue for ejectment. If you were the lawyer of “A”, where and
which court can you lawfully file the action for ejectment? Explain. (1987 Bar Question)
Answer: I can lawfully file the action for ejectment either in the Metropolitan Trial Court of Manila or
in the Municipal Trial Court of Malolos. Metropolitan and Municipal Trial Courts have exclusive
original jurisdiction over the cases of forcible entry and unlawful detainer or ejectment cases. The
stipulation in the contract of lease that if “B” violates the contract “A” may sue “B” in Malolos is valid,
because the location of the real property in such cases determines the venue of the action and not
jurisdiction over the subject matter. However, since the agreement as to venue is merely
permissive, as shown by the use of the word “may”, the action may also be filed in Manila
where the real property is located. (Villanueva vs. Masqueda, 155 SCRA 904).
199
FILE REAL ACTIONS IN THE COURT WHERE PROPERTY LIES: **While the complaint of
the petitioner was denominated as one for “Recovery of Property or its Value,” all of his claims
are actually anchored on his claim of OWNERSHIP over a portion of the subject property. In his
complaint, petitioner sought the return of the portion of the subject property or its value on the
basis of his co-ownership thereof. Necessarily, his alternative claim for the value of the property is
still dependent on the determination of ownership, which is an action affecting title to or
possession of real property or an interest therein. Clearly, petitioner’s claim is a real action which
should have been filed in the court where the property lies, which in this case, is the RTC of
Morong, Rizal. (Samson vs Gabor)
200
BAR 2016: Q: Eduardo, a resident of the City of Manila, filed before the RTC of Manila a
complaint for the annulment of a Deed of Real Estate Mortgage he signed in favor of Galaxy
Bank, and the consequent foreclosure and auction sale of his mortgaged Makati property.
Galaxy filed a Motion to Dismiss on the ground of improper venue alleging that the complaint should
be filed with the RTC of Makati since the complaint involves the ownership and possession of
Eduardo's lot. Resolve the motion with reasons. SUGGESTED ANSWER: The motion to dismiss
on the ground of improper venue should be granted. Under the Rules of Civil Procedure, the
venue of real actions shall be with the proper court having jurisdiction over the area where the real
property involved is situated. An action for annulment of mortgage is a real action if there has
already been a foreclosure sale. (See Chua v. Total Office Products and Services, 30 September 2005).
possession of real property. These include:

a. partition,
b. expropriation
c. Action for the annulment or rescission of sale of land (but if the
title has not yet passed to the vendee, it can be considered a personal
action – Atty. Tranquil).
**Cf. rules on docket fees: look for the true nature of the action!
——————————————
3.4.3. Venue of personal actions [s2]

1. The venue is TRANSITORY; hence the venue is the residence of the plaintiff
or defendant, at the option of the plaintiff (Sec. 2, Rule 4). SUMMARY—In any
of the following places, at the election of the plaintiff:
a. the place where the plaintiff or any of the principal plaintiff
resides;
b. the place where the defendant or any of the principal201
defendant resides;
c. in the case of a non-resident defendant, where he may be
found.202
2. On the issue of who the principal plaintiff: In Marcos-Araneta v CA
(2008), Court ruled that *****it is the BENEFICIARY of a trust who is
the principal plaintiff. The beneficiary is the real-party-in-interest
(RPI), NOT THE TRUSTEES who MERELY REPRESENT the beneficiary.
*****Hence, when the beneficiary lives in Makati, the action must be
commenced there, and not where the trustees reside. NB: Action was
a personal one: suit for reconveyance of stocks.
3. The residence of a person must be his personal, actual or physical
habitation or his actual residence or abode. It does not mean fixed permanent
residence to which when absent, one has the intention of returning. Actual residence
may in some cases be the legal residence or domicile, but *****for purposes of
venue, actual residence is the place of abode and not necessarily legal
residence or domicile. ACTUAL RESIDENCE SIGNIFIES PERSONAL
RESIDENCE, i.e., physical presence and ACTUAL STAY thereat. This physical
presence, nonetheless, must be more than temporary and must be with
Here there was already a foreclosure sale. Hence the action for annulment of mortgage is a real
action which should have been filed in Makati where the real property is situated. (Jurist Review Center,
Inc.)
201
**The rule is such to prevent the plaintiff from choosing the residence of a minor
plaintiff or defendant as the venue.
202
*****NB: in the case of a non-resident defendant: An action to recover the deficiency after the
extrajudicial foreclosure of the real property mortgage is a personal action, for it does not affect
title to or possession of real property, or any interest therein.
continuity and consistency (Jose Baritua v. CA, et al. G.R. No. 108547,
February 3, 1997).
4. Examples of personal actions
a. Damages;
b. Recovery of personal property;
c. **Cancellation of real estate mortgage (to compel the
mortgagee to accept payment of the mortgage debt)
Venue in judicial settlement of estate

1. Section 1, Rule 73: the petition for letters of administration of the estate of
Felicisimo should be filed in the Regional Trial Court of the province "in
which he resides at the time of his death."
2. Garcia Fule v. Court of Appeals: doctrinal rule for determining the residence -
as contradistinguished from domicile - of the decedent for purposes of fixing
the venue of the settlement of his estate: [T]he term "resides" connotes ex vi
termini "actual residence" as distinguished from "legal residence or
domicile." Hence, residence rather than domicile is the significant factor.
Even where the statute uses the word "domicile" still it is construed as
meaning residence and not domicile in the technical sense… In other words,
"resides" should be viewed or understood in its popular sense, meaning, the
personal, actual or physical habitation of a person, actual residence or place
of abode. It signifies physical presence in a place and actual stay thereat. In this
popular sense, the term means merely residence, that is, personal residence, not
legal residence or domicile.
*****Hence, in San Luis v. San Luis, the residence of the governor of
Laguna is not Laguna (his domicile) but Ayala Alabang, Muntinlupa where
he actually lived.
*vs. Political Law: The rulings in Nuval and Romualdez are inapplicable as
they involve election cases. Needless to say, there is a distinction between
"residence" for purposes of election laws and "residence" for purposes of fixing
the venue of actions. In election cases, "residence" and "domicile" are
treated as synonymous terms, that is, the fixed permanent residence to which
when absent, one has the intention of returning. However, for purposes of fixing
venue under the Rules of Court, the "residence" of a person is his personal,
actual or physical habitation, or actual residence or place of abode, which
may not necessarily be his legal residence or domicile provided he resides therein with
continuity and consistency. Hence, it is possible that a person may have his
residence in one place and domicile in another.
3. When and to whom letters of administration granted
Even assuming that Felicisimo was not capacitated to marry respondent in 1974,
nevertheless, we find that the latter has the legal personality to file the subject
petition for letters of administration, as she may be considered the co-owner of
Felicisimo as regards the properties that were acquired through their joint efforts
during their cohabitation.

a. Section 6,[74] Rule 78 states that letters of administration may be granted
to the surviving spouse of the decedent. However, Section 2, Rule 79 thereof
also provides in part: SEC. 2. Contents of petition for letters of administration. -
A petition for letters of administration must be filed by an interested person and
must show, as far as known to the petitioner: x x x.
b. An "interested person" has been defined as one who would be benefited
by the estate, such as an heir, or one who has a claim against the estate, such as a
creditor. The interest must be material and direct, and not merely indirect or
contingent.
c. EG in San Luis v. San Luis: respondent would qualify as an interested
person who has a direct interest in the estate of Felicisimo by virtue of their
cohabitation, the existence of which was not denied by petitioners.
d. If she proves the validity of the divorce and Felicisimo's capacity to
remarry, but fails to prove that her marriage with him was validly performed under
the laws of the U.S.A., then she may be considered as a co-owner under Article
144 of the Civil Code. This provision governs the property relations between
parties who live together as husband and wife without the benefit of
marriage, or their marriage is void from the beginning. It provides that the
property acquired by either or both of them through their work or industry or
their wages and salaries shall be governed by the rules on co-ownership. In a
co- ownership, it is not necessary that the property be acquired through their
joint labor, efforts and industry. Any property acquired during the union is
prima facie presumed to have been obtained through their joint efforts.
Hence, the portions belonging to the co-owners shall be presumed equal, unless
the contrary is proven.
e. Meanwhile, if respondent fails to prove the validity of both the divorce
and the marriage, the applicable provision would be Article 148 of the Family
Code which has filled the hiatus in Article 144 of the Civil Code by expressly
regulating the property relations of couples living together as husband and
wife but are incapacitated to marry. In Saguid v. Court of Appeals, we held that
even if the cohabitation or the acquisition of property occurred before the Family
Code took effect, Article 148 governs. The Court described the property regime
under this provision as follows: The regime of limited co-ownership of
property governing the union of parties who are not legally capacitated to marry each
other, but who nonetheless live together as husband and wife, applies to properties
acquired during said cohabitation in proportion to their respective contributions.
Co-ownership will only be up to the extent of the proven actual contribution of
money, property or industry. Absent proof of the extent thereof, their
contributions and corresponding shares shall be presumed to be equal.
f. In the cases of Agapay v. Palang, and Tumlos v. Fernandez, which
involved the issue of co-ownership of properties acquired by the parties to a
bigamous marriage and an adulterous relationship, respectively, we ruled that
proof of actual contribution in the acquisition of the property is essential. x

xx
——————————————
3.4.4. Venue of actions against non-residents [s3]

1. Requirements:
a. any of the defendants does not reside and is not found in the
Philippines, and
b. the action affects the personal status of the plaintiff, or any property
of said defendant located in the Philippines
2. Summary of rules:
Defendant 1. Personal actions – the venue is where the plaintiff or any of the principal plaintiffs
does not resides, or where the non-resident defendant may be found, at the election of the
reside but
is found in
plaintiff. (Riano, 2014, citing Sec. 2, Rule 4, Rules of Court).
PH 2. Real actions – 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. (Id. citing Sec. 1, Rule 4, Rules of Court).
Defendant 1. If the action affects the personal status of the plaintiff – the action may be
does not
reside and commenced and tried in the court of the place where the plaintiff resides
is not 2. If it involves any property of the non-resident defendant – the action may be
found in commenced and tried where the property or any portion thereof is situated
PH
(Sec. 3, Rule 4).
** Jurisdiction is limited to the res, namely, the personal status of

the plaintiff or the property of the defendant located in the
Philippines. The judgment must be confined to the res, and no
personal judgment can be rendered against the defendant, unless
he submits to the jurisdiction of the court.
—————————————
3.4.6. Effects of stipulations on venue

1. WHEN THE RULES ON VENUE DO NOT APPLY [Sec 4]******
a. In cases where a specific rule or law provides otherwise; EG:
i. Quo warranto proceedings: RTC of the residence of the defendant.
ii. Action for nullity of marriage: where plaintiff resides, where the
defendant resides or where their conjugal home is located;
iii. Adoption: where the prospective adoptive parents reside;
iv. Probate: where the deceased last resided at his time of death;
v. Contempt in quasi-judicial agencies: RTC where the contempt was
committed;
vi. Writ of habeas corpus on custody of minors:
*GR: RTC: where the minor is supposed to be found;
*XPN: when place is unknown or minor cannot be found, can
be filed in the CA or SC.
vii. an action for damages arising from libel is filed before the RTC
although the penalty of imprisonment is less than 6 years.203
viii. VENUE FOR FORECLOSURES
(a) Action for extra-judicial foreclosure? It is NOT a judicial
action and not covered by the RoC. It’s covered by Act 2135. It should be filed
where the property is located. But the mere filing and payment of fees (for
multiple properties in various areas) can be paid in one office, as long as it can be
established that it covers all areas. But the actual sale will only be done in the
place where the properties are located. NB: **no need for Certificate of
Non-Forum Shopping in a “petition to get possession” (since it’s not really a
petition but a motion – PTA case)
(b) Action for judicial foreclosure. Rule 68 does not provide for
the venue of this SCA, but it is filed where the property is located.204 If the
contract of mortgage covers various properties in different provinces, file in RTC
of any of the provinces covering the property. [Ingles:Atty Guevara]
b. Where the parties have validly agreed in writing before the filing of the
action on the exclusive venue (Sec. 4, Rule 4), infra.
2. STIPULATIONS on venue: The parties may agree on a specific venue
which could be in a place where neither of them resides (Universal Robina Corp.
203
Q: Co Batong, a Taipan, filed a civil action for damages with the Regional trial Court (RTC) of
Parañaque City against Jose Penduko, a news reporter of the Philippines Times, a newspaper of general
circulation printed and published in Parañaque City. The complaint alleged, among others, that
Jose Penduko wrote malicious and defamatory imputations against Co Batong; that Co Batong’s
business address is in Makati City; and that the libelous article was first printed and published in
Parañaque City. The complaint prayed that Jose Penduko be held liable to pay P200,000.00 as moral
damages; P150,000.00, as exemplary damages; and P50,000.00, as attorney’s fees. Jose Penduko
filed a Motion to Dismiss on the following grounds: The RTC is without jurisdiction because under the
Totality Rule, the claim for damages in the amount of P350,000.00 fall within the exclusive original
jurisdiction of the Metropolitan Trial Court (MeTC) of Parañaque City. The venue is improperly laid
because what the complaint alleged is Co Batong’s business address and not his residence address.
Are the grounds invoked in the Motion to Dismiss proper? (2014)
The RTC is without jurisdiction because under the Totality Rule, the claim for damages in the
amount of P350,000.00 fall within the exclusive original jurisdiction of the Metropolitan Trial Court
(MeTC) of Parañaque City. NO. The gorund invoked in the Motion to Dismiss is not proper.
*****Under Article 360 of the RPC, the civil action for damages in cases of written defamation
may be filed separately in the Regional Trial Court where the libelous article was printed and first
published, regardless of the amount of damages being claimed.
204
[] Bar 2008: Angela, a resident of Quezon City, sued Antonio, a resident of Makati City for the
foreclosure on the mortgage of two parcels of land situated in Tarlac and Nueva Ecija,
respectively. What is the proper venue for the action? (2008) The action may be filed either in Tarlac
or Nueva Ecija where any of the parcels of land is situated. *****Only one action for foreclosure need
be filed as only one contract had been instituted. (Bank of P.I. v. Green, 57 Phil. 712 [1932]).
[] Assuming that the action was for foreclosure on the mortgage of the same parcels of land,
what is the proper venue for the action? (3%) SUGGESTED ANSWER: If the action was for
foreclosure of mortgage, the action may be filed either in Tarlac or Nueva Ecija where any of the
parcels of land is situated. *****Only one action for foreclosure need be filed as only one contract
of mortgage had been constituted. (Bank of P.I. v. Green, 57 Phil. 712 [1932]).
v. Lim, G.R. No. 154338, October 5, 2007). There are two kinds of stipulations
on venue:
a. PERMISSIVE stipulations: use the rules on venue;
b. RESTRICTIVE stipulations: do not use the rules on venue; what
prevails is the stipulation, which overrides the rules on venue;
requirements******
i. stipulation is in WRITING;
ii. it’s AGREED upon BEFORE the action commenced;
iii. it is RESTRICTIVE, i.e., . exclusive as to the venue (Sec. 4 (b),
Rule 4). EG using the following words: ONLY, solely,205 IN NO OTHER
PLACE, EXCLUSIVELY,206, nowhere else but,207 etc. ****Note that the word
SHALL does NOT make the stipulation restrictive [Polytrade vs. Blano]
c. NB: If it fails to meet the requisites for restrictive stipulation on venue,
use the rules on venue, but there is just ANOTHER VENUE, i.e., the stipulated
venue. EG: the real property is in Angeles but the stipulated venue is Makati, then
you have two options for venue. *****In the absence of qualifying or
205
Which of the following stipulations in a contract will supersede the venue for actions that the rules
of civil procedure fix? (2011 BAR)
(A) In case of litigation arising from this contract of sale, the preferred venue shall be in the proper
courts of Makati.
(B) Should the real owner succeed in recovering his stolen car from buyer X, the latter shall have
recourse under this contract to seller Y exclusively before the proper Cebu City court. [TOM:
although the word exclusive is used here, it does not apply because it is a criminal case where venue is
jurisdictional]
(C) Venue in case of dispute between the parties to this contract shall SOLELY be in the
proper courts of Quezon City.
(D) Any dispute arising from this contract of sale may be filed in Makati or Quezon City.
206
[] Bar 1997: X, a resident of Angeles City borrowed P300,000.00 from A, a resident of Pasay
City. In the loan agreement, the parties stipulated that “the parties agree to sue and be sued in the
City of Manila”.
a. In case of non-payment of the loan, can A file his complaint to collect the loan from X in
Angeles City? Yes, because the stipulation in the loan agreement that “the parties agree to sue and be
sued in the City of Manila” does not make Manila the “exclusive venue thereof” (Sec. 4, Rule 4).
Hence, A can file his complaint in Angeles City where he resides (Sec. 2, Rule 4).
b. Suppose the parties did not stipulate in the loan agreement as to the venue, where can A file
his complaint against X? A can file his complaint either in Angeles City where he resides or in Pasay
City where X resides, at the plantiff’s election.
c. Suppose the parties stipulated in their loan agreement that “venue for all suits arising from
this contract shall be the courts in Quezon City,” can A file his complaint against X in Pasay City? Yes,
because the wording of the stipulation does not make Quezon City the exclusive venue.
207
The mortgage contract between X, who resides in Manila, and Y, who resides in Naga, covering
land in Quezon provides that any suit arising from the agreement may be filed "nowhere else but in a
Makati court". Y must thus sue only in: (2012 BAR)
a. Makati;
b. Makatiand/orNaga;
c. Quezon and/or Makati;
d. Naga.
restrictive words, the stipulation on venue should be deemed as merely an

agreement on an additional forum, not as limiting venue to the specified place.
(Lantin v. Lantion, 2006).208
*****NB: A stipulation on venue is void and unenforceable when it is
contrary to public policy (Sweet Lines v. Teves, G.R. No. 28324, November 19, 1978).
3. When EXCLUSIVE: Venue is exclusive when the stipulation clearly
indicates, through qualifying and restrictive words that the parties deliberately
exclude causes of actions from the operation of the ordinary permissive rules
on venue and that they INTENDED contractually to designate a specific venue
to the exclusion of any other court also competent and accessible to the parties
under the ordinary rules on venue of actions (Philippine Banking Corp. v.
Tensuan, G.R. No. 106920, December 10, 1993).209******
a. The philosophy underlying the provisions on transfer of venue of
actions is the convenience of the plaintiffs as well as his witnesses and to
promote the ends of justice. Hence, even if there is a stipulation on the venue, if
it will unduly inconvenience the parties, it may be disregarded, in the interest of
justice.210
b. In cases where the complaint assails only the terms, conditions,
and/or coverage of a written instrument and not its validity, the exclusive
venue stipulation contained therein shall still be binding on the parties, and
thus, the complaint may be properly dismissed on the ground of improper
venue. Conversely, therefore, a complaint directly assailing the validity of
the written instrument itself should not be bound by the exclusive venue
208
In Lantin, the action was a real one: nullity of sale and/or mortgage because the main
objective of the case was the reconveyance of the property sold.
209
EFFECT of a stipulation on venue agreed upon by parties: The mere stipulation on the venue of
an action is not enough to preclude parties from bringing the case in other venue. **In the absence
of restrictive words, the stipulation should be deemed as merely an agreement on an
ADDITIONAL forum, not as limiting venue. While they are considered valid and enforceable,
venue stipulations in a contract do not, as a rule, supersede the general rule set forth in Rule 4 in
the absence of qualifying or restrictive words. If the language is restrictive, the suit may be filed
only in the place agreed upon by the parties (Spouses Lantin v. Lantion, G.R. No. 160053, August 28,
2006).
210
STIPULATION ON VENUE IS FOR THE CONVENIENCE OF THE PLAINTIFF & HIS
WITNESSES & PROMOTE JUSTICE: Although venue may be changed or transferred from one
province to another by agreement of the parties in writing in accordance with the Rules of Court, such
an agreement will not be held valid where it practically negates the action of the claimants.
The philosophy underlying the provisions on transfer of venue of actions is the convenience of the
plaintiffs as well as his witnesses and to promote the ends of justice. Considering the expense and
trouble a passenger residing outside of Cebu City would incur to prosecute a claim in the City of Cebu, he would most
probably decide not to file the action at all. The condition will thus defeat, instead of enhance,
the ends of justice. Upon the other hand, petitioner has branches or offices in the respective ports
of call of its vessels and can afford to litigate in any of these places. Hence, the filing of the suit in
the CFI of Misamis Oriental, as was done in the instant case, will not cause inconvenience to, much
less prejudice, petitioner. Sweet Lines vs Teves (1978) **Hence, even if there is a stipulation on the
venue, if it will unduly inconvenience the parties, it may be disregarded, in the interest of justice.
stipulation contained therein and should be filed in accordance with the

general rules on venue.211
c. The exclusive venue stipulation should be strictly confined to the
specific undertaking or agreement. Hence, *****when the venue was
stipulated in a warehousing agreement, but the cause of action arose from
cashiering services which had nothing to do with the warehousing agreement, the
venue stipulation is NOT binding on the cause of action arising from the
cashiering services.212
d. Note that if the exclusive venue stipulation is in a primary contract, it also
applies to an accessory contract connected with it.213
211
EXCLUSIVE VENUE STIPULATION BINDS IF COMPLAINT DOES NOT ASSAIL IT. Case
law provides that in cases where the complaint assails only the terms, conditions, and/or
coverage of a written instrument and not its validity, the exclusive venue stipulation contained
therein shall still be binding on the parties, and thus, the complaint may be properly dismissed on
the ground of improper venue. Conversely, therefore, a complaint directly assailing the validity
of the written instrument itself should not be bound by the exclusive venue stipulation
contained therein and should be filed in accordance with the general rules on venue. To be
sure, it would be inherently inconsistent for a complaint of this nature to recognize the exclusive venue
stipulation when it, in fact, precisely assails the validity of the instrument in which such stipulation is
contained.
i. *****When the plaintiff’s complaint directly assails the validity of the subject contracts,
claiming forgery in their execution, he cannot be expected to comply with the venue stipulation,
as his compliance therewith would mean an implicit recognition of their validity. Hence, he can
file it in his place of residence, not necessarily the stipulated venue [Briones vs CA]
ii. **However, if it only questions a part of the contract, not the venue stipulation, then the
latter has to be followed.
iii. If an action is on the alternative, its PRIMARY PURPOSE is controlling.
212
Important: where the exclusivity clause does not make it necessarily all encompassing,
such that even those not related to the enforcement of the contract should be subject to
the exclusive venue, the stipulation designating venues should be **strictly confined to
the specific undertaking or agreement. (SMC v Monasterio, 2005). Hence, **when the
venue was stipulated in a warehousing agreement, but the cause of action arose
from cashiering services which had nothing to do with the warehousing agreement, the
venue stipulation is NOT binding on the cause of action arising from the cashiering
services. (SMC v Monasterio)
213
Compare SMC to PBCOM v Lim, in that case, there was a venue stipulation in a
promissory note. Connected to the promissory note was a surety agreement which did
NOT contain any venue stipulation. The plaintiff filed an action against the surety in a
place NOT stipulated in the PN. **Court held that the venue stipulations in the
promissory note should be read to the surety agreement because the surety
agreement was an accessory contract which couldn’t exist without the PN. So,
improper venue. Bottomline: in SMC, the cases were NOT related. In PBCOM, the cases
were interrelated.
NB: A party is not bound by a venue stipulation where he directly assails on

the ground of forgery the validity of the contracts containing the venue
stipulation. (Briones v. Cash Asia Credit Corp., 14 January 2015)214
e. The stipulation said, “… exclusively in the RTC of Baguio”, is that valid?

No. *****The RTC’s jurisdiction is determined by law. To fix it, say “…
exclusively in the appropriate court in Baguio, waiving for this purpose any other
venue provided by the Rules of Court.”
f. But remember: if there’s a specific rule or law, that rule or law will govern
over the stipulation, supra.
———————————————————————————————
214
BAR 2017: Q: After working for 25 years in the Middle East, Evan returned to the Philippines to
retire in Manila, the place of his birth and childhood. Ten years before his retirement, he bought for
cash in his name a house and lot in Malate, Manila. Six months after his return, he learned that his
house and lot were the subject of foreclosure proceedings commenced by ABC Bank on the basis of a
promissory note and a deed of real estate mortgage he had allegedly executed in favor of ABC Bank
five years earlier. Knowing that he was not in the country at the time the promissory note and deed of
mortgage were supposedly executed, Evan forthwith initiated a complaint in the RTC of Manila
praying that the subject documents be declared null and void. ABC Bank filed.a motion to
dismiss Evan's complaint on the ground of improper venue on the basis of a stipulation in both
documents designating Quezon City as the exclusive venue in the event of litigation between the
parties arising out of the loan and mortgage. Should the motion to dismiss of ABC Bank be granted?
Explain your answer. SUGGESTED ANSWER: No, the motion to dismiss of ABC Bank should not
be granted. In a case involving similar facts, the Supreme Court held that a party is not bound by a
venue stipulation where he directly assails on the ground of forgery the validity of the contracts
containing the venue stipulation. The reason is that such a party cannot be expected to comply
with the venue stipulation since his compliance therewith would mean an implicit recognition
of the validity of the contracts he assails. [Briones v. Cash Asia Credit Corp., 14 January 2015,
Perlas-Bernabe, J.] (Jurist Review Center, Inc.)
3.5. Pleadings [Rule 6]
3.5.1. Kinds of pleadings [Sec 2] 149

a) Complaint [Sec 3] 150
b) Answer [Sec 4] 150
c) Counterclaims [Sec 6] 151
COMPULSORY vs. PERMISSIVE COUNTERCLAIMS 153
d) Cross-claims [Sec 8] 154
e) Third (fourth, etc.) party complaints [Sec 11] 159
f) Complaint-in-intervention 160
g) Reply [Sec 10] 161
3.5.3. Parts of a pleading [Rule VII] 162
CAPTION [Sec 1] 163
THE BODY OF THE COMPLAINT [Sec 2] 164
SIGNATURE & ADDRESS [Sec 3] 164
VERIFICATION [Sec 4] 165
EFFECTS OF LACK OF VERIFICATION 166
CERTIFICATION AGAINST FORUM SHOPPING (CAFS; Sec 5) 168
EFFECTS OF NON-COMPLIANCE OR SUBMISSION OF FALSE CAFS OR BELATED
FILING**** 168
RULE WHEN PLAINTIFF IS A JURIDICAL PERSON AS TO VERIFICATION & CAFS
172
3.5.4. Allegations in a pleading [Rule VIII] 175
MANNER OF MAKING ALLEGATIONS 176
WHAT MUST BE AVERRED GENERALLY or with PARTICULARITY** 176
Three kinds of denial under Sec 10, Rule 8 176
Summary: IMPLIED JUDICIAL ADMISSIONS 177
STRIKING OUT OF PLEADING OR MATTER CONTAINED THEREIN [Sec 12] 179
3.5.5. Effect of failure to plead [Rule IX] 184
a) Failure to plead defenses and objections [Sec 1] 184
b) Failure to plead a compulsory counterclaim and cross-claim [Sec 2] 184
3.5.6. Default [Sec 3, Rule 9] 184
KINDS OF DEFAULT 185
Effect of an order of default (Bar 1999) 185
Relief from an order of default 187
Effect of a partial default 188
Extent of relief to be awarded 189

Actions where default is not allowed****** 189
REMEDIES FROM AN ORDER OF DEFAULT****** 189
3.5.7. Filing and service of pleadings [Rule 13] 190
b) Filing versus service of pleadings [Sec 2] 192
d) Manner of filing [Sec 3] 193
e) Modes of service [Sec 5] 195
Proof of filing [Sec 12] and service [Sec 13] 195
NOTICE LIS PENDENS [Sec 14] 197
3.5.8. Amendment [Rule X] 198
a) Amendment as a matter of right [Sec 2] 199
b) Amendments by leave of court [Sec 3] 199
c) Formal amendment [Sec 4] 200
d) Amendments to conform to or authorize presentation of evidence [Sec 5] 201
e) Different from supplemental pleadings [Sec 6] 202
f) Effect of amended pleading [Sec 7-8] 204
———————————————————————————————
PLEADINGS [Rule VI]

1. Pleadings are the written statements of the respective claims and defenses of
the parties submitted to the court for appropriate judgment.
2. The claims of a party are asserted in a
a. complaint,
b. counterclaim,
c. cross-claim,
d. third (fourth, etc.)-party complaint, or
e. complaint-in-intervention.
3. The defenses of a party are alleged in the:
a. answer to the pleading asserting a claim against him.
b. counter cross-claim.
4. An answer may be responded to by a reply.
————————————
3.5.1. Kinds of pleadings [Sec 2]
a) Complaint [Sec 3]
1. Definition: the pleading alleging the plaintiff's cause or causes of action. It is
a concise statement of the ULTIMATE FACTS constituting the plaintiff’s cause
or causes of action, with a specification of the relief sought, but it may add a
general prayer for such further relief as may be deemed just or equitable.
2. Key contents (if known):

a) names and ;
b) residences of the plaintiff and defendant
—————————————
b) Answer [Sec 4]
1. A pleading in which a defending party sets forth his defenses, which may
either be negative or affirmative—these are DEFENSES! It may likewise be the
response to a counterclaim or a cross-claim. It may be an answer to the
complaint, an answer to a counter-claim, or an answer to a cross-claim (Riano,
2014).215
2. Two kinds of defenses that may be set forth in the answer:
a. Negative defenses: the specific denial of the material fact or facts alleged in
the pleading of the claimant essential to his cause or causes of action. Specific denials
that must be made under oath:****
i. A denial of an actionable document (Sec. 8, Rule 8); NB:
Whenever an action or defense is based or founded upon a written instrument
or document, said instrument or document is deemed an actionable document.
ii. A denial of allegation of usury in a complaint to recover usurious
interest (Sec. 11, Rule 8).
b. Affirmative defenses: 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 (Kinds of affirmative defenses):
215
Tina Guerrero filed with the Regional Trial Court of Biñan, Laguna, a complaint for sum of money
amounting to PI Million against Carlos Corro. The complaint alleges, among others, t1 at Carlos
borrowed from Tina the said amount evidenced by a promissory note signed by Carlos and his wife,
jointly and severally. Carlos was served with summons which was received by Linda, his secretary.
However, Carlos failed to file an answer to the complaint within the 15- day reglementary period.
Hence, Tina filed with the court a motion to declare Carlos in default and to allow her to present
evidence ex parte. Five days thereafter, Carlos filed his verified answer to the complaint, denying under
oath the genuineness and due execution of the promissory note; and contending that he has fully paid
his loan with interest at 12% per annum. (2006 Bar Question)
[] Was the summons validly served on Carlos? 2.5% SUGGESTED ANSWER: No, the
summons was not validly served on Carlos. As a general rule, summons must be served on the
defendant in person (Sec. 6, Rule 14 of the 1997 Revised Rules of Civil Procedure). Substituted
service may be resorted to only when the defendant cannot be served personally within a
reasonable time and for a justifiable reason (Sec. 7, Rule 14 of the 1997 Revised Rules of Civil
Procedure). The return must show impossibility of service and efforts of the Sheriff to effect personal
service.
[] If you were the judge, will you grant Tina’s motion to declare Carlos in default? 2.5%
SUGGESTED ANSWER: No, I will not grant Tina’s motion to declare Carlos in default. Considering
that there was no proper service of summons, the reglementary period to file a responsive pleading
was not tolled. Carlos was not duty bound to submit an Answer. Moreover, Carlos submitted a
verified answer. It is better to decide a case on the merits than on sheer technicality.
i. Fraud
ii. Statute of limitations
iii. Release216
iv. Payment
v. Illegality
vi. Statute of frauds
vii. Estoppel
viii. Former recovery
ix. Discharge in bankruptcy
x. Any other matter by way of confession and avoidance [Sec. 5(b),
Rule 6; Pesane Animas Mongao v. Pryce Properties Corpo., 467 SCRA 201, 214).
3. Insufficient denials or denials amounting to an admission
a. General denial - an admission of the material averments in the complaint
(Sec. 11, Rule 8).
b. Denial in the form of a NEGATIVE PREGNANT (Riano, 2014).
Negative pregnant: it is a denial that is **profuse/filled with negations but it
amounts to an admission. It is fuzzy and so it is considered as an admission. It
is a negative implying also an affirmative and which, although is stated in negative
form, really admits the allegations to which it relates. It does not qualify as a
specific denial. It is conceded to be actually an admission. It refers to a denial
which implies its affirmative opposite by seeming to deny only a qualification or
an incidental aspect of the allegation but not the main allegation itself
(Riano, 2014). A denial in the form of a negative pregnant is an AMBIGUOUS
pleading, since it cannot be ascertained whether it is the fact, or only the
qualification that is intended to be denied (Galofa v. Nee Bon Sing, G.R. No. L-
22018, January 17, 1968).
*EG1: “I deny par 6 of the complaint which says that the defendant
borrowed money from the plaintiff in the amount of 5M on 6 Oct 2002 in Baguio
216
Q: Agustin, a 21-year old son of the spouses Edgardo and Gloria, was a paying passenger who
suffered serious physical injuries when the bus he was riding fell off a cliff due to the recklessness of its
driver. The bus belonged to the Inter-City Transit. The spouses, together with Agustin, sued for
damages. After Inter- City Transit filed its answer, Agustin, in consideration of P10,000, executed a
“Release of Claim.” On the basis thereof, Inter-City filed a motion to dismiss alleging that the claim
had already been paid and released. Plaintiff-spouses opposed the motion and asserted that their son
was totally dependent on them for support; that his hospitalization and other medical expenses were
shouldered by them; that they were not even consulted on the “Release of Claim”; and, that the
“Release of Claim” could not operate as a valid ground for dismissal because it did not have the
conformity of all the parties since only their son, Agustin, signed it. Decide the motion to dismiss.
Motion to dismiss is granted. The contract of carriage was between Agustin, who was of legal
age, and Inter-City Transit. Hence, the “Release of Claim" executed by him is valid. (Baliwag Transit
vs. Court of Appeals, January 31, 1989).
Another Acceptable Answer: Motion to dismiss is granted only with respect to Agustin.
The parents of Agustin have a cause of action against Inter-City Transit to the extent of the
expenses incurred by them due to the recklessness of its driver.
City.” Now, the complaint provides: “that herein defendant borrowed from
plaintiff on 6 Oct 2002 for 5M”. So, which one are you really denying? The
amount, the date or the place? Since it is unclear, procedural rules classify such
denials as negative pregnant, which amount to an admission (based on American
jurisprudence). You will understand this better if it is clear with you that denials
must be specific.
**EG2: An assertion of a defendant which questions the amount of
money involved in a bank account but does not deny its existence, when
such is the issue in the case, is said to have admitted the existence of such bank
account. The denial of the amount of money deposited is pregnant with an
admission of the existence of the bank account (Republic of the Philippines v.
Sandiganbayan, G.R. No. 152154, July 15, 2003).
4. How about an Answer to third (fourth, etc.)—party complaint [Sec 13]? A third
(fourth, etc.) — party defendant may allege in his answer his defenses,
counterclaims or cross-claims, including such defenses that the third (fourth, etc.) —
party plaintiff may have against the original plaintiff's claim. In proper cases, he
may also assert a counterclaim against the original plaintiff in respect of the
latter's claim against the third-party plaintiff.
5. **Can there be an answer without negative defense? YES. It means there is an
admission. Hence, you make negative defenses if you do not want to make
admissions.
a. But you can interpose an affirmative defense. EG: you admit you owe
money to the plaintiff, but you affirm that the case was filed in a court without JN.
————————————
c) Counterclaims217 [Sec 6]
1. What it is: *****any claim which a defending party may have against an
opposing party. It partakes of a complaint by the defendant against the
plaintiff (Pro-Line Sports Inc., v. CA, G.R. No. 118192, October 23, 1997).218
2. Can there be a counter-counter claim? YES. A counter-claim may be asserted
against an original counter-claimant [Sec 9]
3. *****But note that a counterclaim is included in the Answer, not in a Motion to
Dismiss.219
217
i. Compulsory counterclaim [Sec 7]
ii. Permissive counterclaim
iii. Effect on the counterclaim when the complaint is dismissed
218
True or False. A counterclaim is a pleading. (2%) (2007 Bar Question) True. A counterclaim is a
pleading by which a defending party makes a claim against an opposing party (Sec. 6, Rule 6, Rules of
Court).
219
Q: Is a “motion to dismiss with counterclaim" sanctioned by the Rules of Court?
A. If your answer is YES, state your reasons.
COMPULSORY vs. PERMISSIVE COUNTERCLAIMS

1. COMPULSORY: 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; Petitioner’s claim is so related logically to respondents'
counterclaim, such that conducting separate trials for the claim and the
counterclaim would result in the SUBSTANTIAL DUPLICATION of the
time and effort of the court and the parties.220
a. GR: *****a counterclaim must be within the jurisdiction of the court
both as to the AMOUNT and the NATURE thereof;
b. XPN: except that in an original action before the RTC, the counter-
B. If your answer is NO, give your reasons and state what the defendant should instead file in
court to preserve his counterclaim while maintaining the ground asserted in his motion to dismiss as an
issue that should be the subject of a preliminary hearing. (1992 Bar Question)
Suggested Answer: No, because a counterclaim is contained in an answer and not in a motion
to dismiss. What the defendant should do is to plead the ground of his motion to dismiss (except
improper venue) as an affirmative defense in his answer, together with his counterclaim, and ask
for a preliminary hearing on his affirmative defense as if a motion to dismiss had been filed. (Sec. 5
of Rule 16)
220
Q: PX filed a suit for damages against DY. In his answer, DY incorporated a counterclaim for
damages against PX and AC, counsel for plaintiff in said suit, alleging in said counterclaim, inter alia,
that AC, as such counsel, maliciously induced PX to bring the suit against DY despite AC’s
knowledge of its utter lack of factual and legal basis. In due time, AC filed a motion to dismiss the
counterclaim as against him on the ground that he is not a proper party to the case, he being merely plaintiff’s counsel.
Is the counterclaim of DY compulsory or not? Should AC’s motion to dismiss the counterclaim be
granted or not? Reason. (5%) (2004 Bar Question) SUGGESTED ANSWER:
Yes. *****The counterclaim of DY is compulsory because it is one which 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. (Sec. 7 of Rule 6).
The motion to dismiss of plaintiff’s counsel should not be granted because bringing in
plaintiff’s counsel as a defendant in the counterclaim is authorized by the Rules. Where it is
required for the grant of complete relief in the determination of the counterclaim, the court shall
order the defendant's counsel to be brought in since jurisdiction over him can be obtained. (Sec. 12
of Rule 6; Aurelio v. Court of Appeals 196 SCRA 674 [1994]); and other cases). Here, the
counterclaim was against both the plaintiff and his lawyer who allegedly maliciously induced
the plaintiff to file the suit.
ALTERNATIVE ANSWER: The counterclaim should be dismissed because it is not a
compulsory counterclaim. When a lawyer files a case for a client, he should not be sued on a
counterclaim in the very same case he has filed as counsel. It should be filed in a separate and distinct
civil action. (Chavez v. Sandiganhayan, 193 SCRA 282 [1991]).
claim may be considered compulsory REGARDLESS221 of the amount.222 223
NB: Since compulsory counterclaims raise issues that are inseparable from the
Complaint, one is not required to answer them.224
221
Q: A resident of Lingayen, Pangasinan sued X. a resident of San Fernando. La Union in the
Regional Trial Court (RTC) of Quezon City for the collection of a debt of PI million.
X did not file a motion to dismiss for improper venue but filed his answer raising therein improper
venue as an affirmative defense. He also filed a counterclaim for P80.000 against A for attorney’s fees
and expenses for litigation. X moved for a preliminary hearing on said affirmative defense. For his part,
A filed a motion to dismiss the counterclaim for lack of jurisdiction. xxx Rule on the motion to dismiss
the counterclaim on the ground of lack of jurisdiction over the subject matter. (12%)
SUGGESTEDANSWER: The motion to dismiss on the ground of lack of jurisdiction over the
subject matter should be denied. The counterclaim for attorney's fees and expenses of litigation is a
compulsory counterclaim because it necessarily arose out of and is connected with the complaint.
*****In an original action before the Regional Trial Court, the counterclaim may be considered
compulsory regardless of the amount. (Sec. 7 of Rule 6, 1997 Rules of Civil Procedure.)
222
[] Bar 1998: 3. A, a resident of Lingayen, Pangasinan sued X, a resident of San Fernando La Union
in the RTC of Quezon City for the collection of a debt of P1 million. X did not file a motion to
dismiss for improper venue but filed his answer raising therein improper venue as an affirmative
defense. He also filed a counterclaim for P80,000 against A for attorney’s fees and expenses for
litigation. X moved for a preliminary hearing on said affirmative defense. For his part, A filed a
motion to dismiss the counterclaim for lack of jurisdiction. Rule on the motion to dismiss the
counterclaim on the ground of lack of jurisdiction over the subject matter: It should be denied. The
counterclaim for attorney’s fees and expenses of litigation is compulsory counterclaim because it
necessarily arouse out of and is connected with the complaint. *****In an original action before the
RTC, the counterclaim may be considered compulsory regardless of the amount. (Sec. 7 of Rule 6).
223
BAR 2017: Abraham filed a complaint for damages in the amount of P750,000.00 against Salvador
in the RTC in Quezon City for the latter's alleged breach of their contract of services. Salvador
promptly filed his answer, and included a counterclaim for P250,000.00 arising from the allegedly
baseless and malicious claims of Abraham that compelled him to litigate and to engage the services of
counsel, and thus caused him to suffer mental anguish. Noting that the amount of the counterclaim
was below the exclusive original jurisdiction of the RTC, Abraham filed a motion to dismiss vis-a-vis
the counterclaim on that ground. Should the counterclaim of Salvador be dismissed? Explain your
answer. SUGGESTED ANSWER: No, the counterclaim of Salvador should not be dismissed on the
ground of lack of jurisdiction. In an original action before the RTC, the RTC has jurisdiction
over a compulsory counterclaim regardless of its amount. [See S7 R6] Here Salvador’s
counterclaim for damages arising from the alleged malicious and baseless claims of Abraham
is a compulsory counterclaim as it arises from Abraham’s complaint. Hence the RTC has
jurisdiction over Salvador’s counterclaim even if it did not exceed the jurisdictional amount of
P400,000. (Jurist Review Center, Inc.)
224
Plaintiff filed a complaint against defendant for recovery of possession of real property with the
Regional Trial Court of Manila. Defendant filed an answer with affirmative defenses and interposed
a counterclaim for damages and attorney’s fees arising from the filing of the complaint. When
plaintiff failed to file an answer on the counterclaim, defendant moved to declare him in default.
Notwithstanding notice of the motion, plaintiff did not file an opposition. As judge, how would you
resolve the motion to declare plaintiff in default? Explain.
Answer: I would deny the motion. A compulsory counterclaim for damages and attorney’s fees
arising from the filing of the complaint raise issues which are inseparable from those of the
complaint and does not require an answer. (Navarro vs. Bello. 102 Phil. 1019)
2. PERMISSIVE: not allowed in a summary proceeding (only compulsory

counterclaims can be allowed); if it does not arise out of or is not necessarily
connected with the subject matter of the opposing party's claim. *****It is essentially an
independent claim225 that may be filed separately in another case.226 Hence, the
following are required:
a. pay corresponding docket fee;
b. file a separate certification against forum shopping
*****if both are not done, the plaintiff-turned-defendant may file a MTD.
3. Tests to determine WON a counterclaim is compulsory or permissive; A
positive answer to all four questions infra would indicate that the
counterclaim is compulsory.
(a) Are the issues of fact and law raised by the claim and by the
counterclaim largely the same?
(b) Would res judicata bar a subsequent suit on defendants' claims, absent the
compulsory counterclaim rule?
(c) Will substantially the same evidence support or refute plaintiffs' claim as
well as the defendants' counterclaim? and
(d) Is there any logical relation between the claim and the counterclaim?
******
Compulsory Counterclaim Permissive Counterclaim
225
Defendant Dante said in his answer: "1. Plaintiff Perla claims that defendant Dante owes her P4,000
on the mobile phone that she sold him; 2. But Perla owes Dante P6,000 for the dent on his car that
she borrowed." How should the court treat the second statement? (2011 BAR)
(A) A cross claim
(B) A compulsory counterclaim
(C) A third party complaint
(D) A permissive counterclaim
226
A filed an action against B for recovery of possession of a piece of land. B in his answer specifically
denied A’s claim and interposed as counterclaim the amount of P150,000.00, arising from another
transaction, consisting of the price of the car he sold and delivered to A and which the latter failed to
pay. Is B’s counterclaim allowed under the rules? Explain.
Answer: B’s counterclaim is a permissive counterclaim inasmuch as it arises out of another
transaction that is the subject-matter of A’s complaint. It is allowed if it is within the jurisdiction
of the court. (Sec. 8 of Rule 6)
Alternative Answer: The question does not state to what court A filed the action. If the
assessed value of the property does not exceed P20.000.00, the action may be filed In a Municipal
Trial Court, in which case the counterclaim of P150,000.00 may not be allowed inasmuch as it is not
within its jurisdiction. [TOM: now allowed because the jurisdictional amount outside MM is 300K]
If the assessed value does not exceed P50.000.00, the action may be filed in a Metropolitan
Trial Court, in which case the counterclaim of P150,000.00 may be allowed inasmuch as it is within its
jurisdiction. (Sec. 33 of BP 129 as amended by RA No. 7691)
If the assessed value exceeds P50.000.00, the action may be filed in a Regional Trial Court. If
filed in Metro Manila, the counterclaim of P150.000.00 may not be allowed, but if filed outside Metro
Manila, it may be allowed. (Sec. 19 of BP 129 as amended by RA 7691) [TOM: Nope. If the original
action is filed in the RTC, the amount of the counterclaim does not matter].
One which arises out of or is necessarily It does not arise out of nor is it necessarily connected
connected with the transaction or with the subject matter of the opposing party’s claim.
occurrence that is the subject matter of the
opposing party’s claim (Sec.7, Rule 6).
It does not require for its adjudication the It may require for its adjudication the presence of
presence of third parties of whom the court third parties over whom the court cannot acquire
cannot acquire jurisdiction. jurisdiction.
Barred if not set up in the action (Sec. 2, Not barred even if not set up in the action.
Rule 9).
Need not be answered; No default Must be answered; Otherwise, default
Not an initiatory pleading. *****Initiatory pleading.
Need not be accompanied by a Must be accompanied by a certification against
certification against forum shopping and forum shopping and whenever required by law, also a
certificate to file action by the Lupong certificate to file action by the Lupong
Tagapamayapa. Tagapamayapa (Santo Tomas University v. Surla, G.R. No.
129718, 1998).
The court has jurisdiction to entertain Must be within the jurisdiction of the court where
both as to the amount and nature (Sec. 7, the case is pending and cognizable by regular courts
Rule 6; Ibid.). But in an original action before the of justice otherwise, defendant will have to file it in separate
RTC, the counterclaim may be considered proceeding which requires payment of docket fee
compulsory regardless of the amount (S7,
R6).
4. EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS

DISMISSED
a. ******The COMPULSORY counterclaims are DEEMED WAIVED
when the defendant files a motion to dismiss the complaint instead of
answering the same.227 If no motion to dismiss has been filed, any of the
227
[] Bar 2008: Fe filed a suit for collection of Php 387,000 against Ramon in the RTC of Davao City.
Aside from alleging payment as a defense, Ramon, in his answer, set up counterclaims for Php
100,000 as damages and Php 30,000 as attorney's fees as a result of the baseless filing of the
complaint, as well as for Php 250,000 as the balance of the purchase price of the 30 units of air
conditioners he sold to Fe. Does the RTC have jurisdiction over Ramon’s counterclaims, and if so,
does he have to pay docket fees therefor? (3%) (2008 Bar Question) Yes, the RTC has jurisdiction
over Ramon’s counterclaims because they are all money claims in which the totality rule applies in
determining jurisdiction (Sec. 5[d], Rule 2, Rules of Court). [TOM: the amount should not matter: in
an original action before the RTC, the counter-claim may be considered compulsory
REGARDLESS of the amount.]
[] Suppose Ramon’s counterclaim for the unpaid balance is P310,000, what will happen to
his counterclaims if the court, dismisses the complaint after holding a preliminary hearing on
Ramon’s affirmative defenses? (3%) (2008 Bar Question) SUGGESTED ANSWER: The dismissal of
the complaint is without prejudice to the right of the defendant (Ramon) to prosecute his counterclaim
in the same or in a separate action [Sec. 6, Rule 16, last par.; Pingav. Heirs of Santiago, 494 SCRA 393
[2006]).
grounds for dismissal under Rule 16 may be pleaded as an affirmative defense

in the answer, and in the discretion of the court, a preliminary hearing may be
had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16). *****After
hearing, when the complaint is dismissed, the counterclaim, compulsory or
permissive is not dismissed.
b. *****When the plaintiff himself files a motion to dismiss his
complaint after the defendant has pleaded his answer with a counterclaim. If the
court grants the motion, the dismissal shall be limited to the complaint. It
shall be without prejudice to the right of the defendant to prosecute his
counterclaim in a separate action unless within 15 days from notice of the
motion, manifests his preference to have his counterclaim resolved in the
same action (Sec. 2, Rule 17).
c. When the complaint is dismissed through the fault of the plaintiff and
at a time when a counterclaim has already been set up, the dismissal is without
prejudice to the right of the defendant to prosecute his counterclaim in the
same or separate action (Sec. 3, Rule 17; Riano, 2014).
5. Effect if the counterclaim is deemed to be COMPULSORY: it must be set
up in the same action; otherwise, it would be BARRED
FOREVER.228******
[] Under the same premise as paragraph above, suppose that instead of alleging payment as
a defense in his answer, Ramon filed a motion to dismiss on that ground, at the same time
setting up his counterclaims, and the court grants his motion. What will happen to his counterclaims?
(3%)(2008 Bar Question) SUGGESTED ANSWER: Since Ramon filed only a motion to dismiss,
not an answer, the dismissal of the complaint would also bring about the dismissal of his
counterclaims but he can file a separate action for his permissive counterclaims. ******The
compulsory counterclaims are deemed waived when he filed a motion to dismiss the complaint
instead of answering the same. (Financial Building Corporation v. Forbes Park Association, Inc., 338
SCRA 346 2000]).
[] Suppose that instead of alleging payment as a defense in his answer, Ramon filed a motion
to dismiss on that ground, at the same time setting up his counterclaims, and the court grants his
motion. What will happen to his counterclaims? A: *****Since Ramon filed only a motion to dismiss,
not an answer, the dismissal of the complaint would also bring about the dismissal of his counterclaims but he
can file a separate action for his permissive counterclaims. *****The compulsory counterclaims
are DEEMED WAIVED when he filed a motion to dismiss the complaint instead of answering
the same (Financial Building Corp. v. Forbes Park Association, Inc., G.R. No. 133119, August 17,
2000).
228
Q: Aya sues Lea for recovery of a tract of land. Lea seeks in turn to be reimbursed of the
value of improvements she had introduced on the same land and the payment of damages she had
sustained. Should Lea file a separate action against Aya for that purpose? (1994 Bar Question)
Answer: No. Lea’s claim cannot be made in a separate action. It is a compulsory counterclaim
in the suit filed by Aya against Lea for the recovery of the land. A compulsory counterclaim is one
which arises out of or is necessarily connected with the transaction or occurrence that is the
subject-matter of the opposing party’s claim and does not require the presence of third parties
of whom the court cannot acquire jurisdiction. If Lea’s claim is not set up in the suit filed by Aya, the
claim is barred. (Sec. 4, Rule 9; Baclayon v. Court of Appeals 182 SCRA 761 [1990]).
Alternative Answer: If Aya’s action for recovery of land is one of forcible entry or unlawful
detainer. Lea’s claim cannot be filed as a counterclaim but should be filed in a separate action.
a. If it is filed concurrently with the main action but in a different proceeding, it

would be abated [nullified] on the ground of litis pendentia;
b. if filed subsequently, it would meet the same fate on the ground of res
judicata.
c. There is no need for respondents to pay docket fees and to file a
certification against forum shopping for the court to acquire jurisdiction
over the said counterclaim. Alba vs Malapajo (2016)
——————————————
d) Cross-claims [Sec 8]
1. Definition: 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.229
2. Requisites of cross-claim:230*****
a. A claim by one party against a co-party;
b. It must arise out of the subject matter of the complaint or of the counterclaim;
and
c. The cross-claimant is prejudiced by the claim against him by the
opposing party (Sec. 8, Rule 6).
3. Effect if a cross-claim was not set up
*GR: Barred if not set up (Sec. 2, Rule 9).
****XPN: If it is not asserted due to oversight, inadvertence, or
excusable negligence, it may still be set up with leave of court by amendment
of the pleadings (Sec. 10, Rule 11).
4. Bar 1999: Counterclaim v. Cross-claim:
a. A counterclaim is a claim against an opposing party
b. while a cross claim is a claim against a co-party231 (Sec. 8, Rule 6).
229
Q: B and C borrowed P400.000.00 from A. The promissory note was executed by B and C in
a joint and several capacity. B, who received the money from A gave C P200.000.00. C, in turn,
loaned P100,000.00 out of the P200.000.00 he received to D.
A. In an action filed by A against B and C with the Regional Trial Court of Quezon City, can
B file a cross-claim against C for the amount of P200.000.00? Yes. B can file a cross-claim against C
for the amount of 200,000.00 given to C. A cross-claim is a claim filed by one party against a co-party
arising out of the transaction or occurrence that is the subject matter of the original action or a
counterclaim therein and 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 against the cross-claimant. (Sec. 7 of
former Rule 6; Sec. 8 of new Rule 6. Rules of Court). [TOM: why file a cross claim if both are
defendants and they are solidarity liable?]
230
B. Distinguish a counterclaim from a crossclaim. (2%) SUGGESTED ANSWER: A counterclaim is
distinguished from a crossclaim in that 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. *****A counterclaim is against an opposing party while a cross-claim is
against a co-party. (Sec. 8, Rule 6 of the 1997 Rules)
231
[] Bar 1996: A assembles an owner-type jeep for B who in turn rents it to X. Due to faulty
brakes, X figures in a vehicular accident causing him severe injuries. X files an action for damages
5. 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.
6. Can there be a counter cross-claim? YES. A cross-claim may also be filed
against an original cross-claimant [Sec 9].
————————————-
e) Third (fourth, etc.) party complaints [Sec 11]

1. Definition: a claim that a defending party may, with leave of court,232 file
against a person NOT A PARTY to the action, called the third (fourth, etc.) —
party defendant for contribution, indemnity, subrogation233 or any other relief,
in respect of his opponent's claim.
2. **Leave of court is necessary in third (fourth, etc.)–party complaint in order
to obviate delay in the resolution of the complaint, such as when the third-party
defendant cannot be located, or when unnecessary issues may be introduced, or
when a new and separate controversy is introduced (Herrera, 2007).
3. Third-party complaint vs. Rules on bringing in new parties
Third-party complaint Rules on bringing in new parties
It is proper when not one of the If one or more of the defendants in a counterclaim or cross-
third-party defendants therein is a claim is already a party to the action, then the other
party to the main action (Riano, necessary parties may be brought in under the rules on bringing
2011). in new parties.
4. *****TESTS to determine whether the third-party complaint is in respect of

plaintiff’s claim:
a. Whether it arises out of the same transaction on which the plaintiff’s
claim is based, or, although arising out of another or different transaction, is
against A and B. May B file a third-party complaint against A for indemnity? A: No, because what B
should file is a cross-claim against his co-defendant A.
232
Leave of court is always necessary in: (2012 BAR)
a. ademurrertoevidenceinacivilcase.
b. ademurrertoevidenceinacriminalcase.
c. motion to amend a complaint.
d. third party complaint.
233
Q: X, driver of Y Bus Co. was charged with homicide, serious physical injuries and damage to
property through reckless imprudence. Y Bus Co., as employer of X intervened and filed a third
party complaint against Z, the insurer of the bus, for subrogation and/or contribution in the event X
is convicted and Y Bus Co is made subsidiarily liable for damages.
May Y Bus Co. intervene and file said complaint? Explain. (1996 Bar Question) Answer:
No, Y Bus Co. may not intervene in the criminal action because it is not the offended party and it
cannot be impleaded as an accused together with X. Its remedy is to file a separate action
against Z, the insurer of the bus in the event X is convicted and Y Bus Co. is made subsidiarily liable.
Alternative Answer: Yes, Y Bus Co. may be allowed to intervene inasmuch as if X were
convicted it would be subsidiarily liable for damages. Under the ruling in Pajarito us. Seneris (87 SCRA
275), the judgment against X for damages may be enforced by execution against Y Bus Co.
connected with the plaintiff’s claim;234

b. Whether the third-party defendant would be liable to the plaintiff or
to the defendant for all or part of the plaintiff’s claim against the original
defendant; and
c. Whether the third-party defendant may assert any defenses which the
third-party plaintiff has or may have to the plaintiff’s claim (Capayas v. CFI of Albay,
77 Phil 181).
**Where the trial court has jurisdiction over the main case, it also has
jurisdiction over the third party complaint, regardless of the amount involved as a
third-party complaint is merely auxiliary to and is a continuation of the main
action (Republic v. Central Surety & Insurance Co., G.R. No. L-27802, October
26, 1968). NB: the third party claimant must be a party to the main case.235
———————————
f) Complaint-in-intervention
1. What it is: It is a pleading filed for the purpose of asserting a claim against
either or all of the original parties (Sec. 3, Rule 19).
2. ****Bar 2000: Requisites for an Intervention by a Non-party in an action
pending in court
a. Legal interest in the matter in controversy; or
b. Legal interest in the success of either of the parties; or
234
Q: B and C borrowed P400.000.00 from A. The promissory note was executed by B and C in
a joint and several capacity. B, who received the money from A gave C P200.000.00. C, in turn,
loaned P100,000.00 out of the P200.000.00 he received to D.
B. Can C file a third party complaint against D for the amount of P100.000.00? (1997 Bar
Question) Answer: No, C cannot file a third-party complaint against D because the loan of
100,000.00 has no connection with his opponent’s claim. C could have loaned the money out of
other funds in his possession. Alternative Answer: Yes, C can file a third-party complaint against D
because the loan of 100.000.00 was taken out of the P200.000.00 received from B and hence the loan
seeks contribution in respect to his opponent's claim. (Sec. 12 of former Rule 6; Sec. 11 of new
Rule 6) [TOM prefers the alternative answer because although the transaction may be different, it is
connected to the claim of the original plaintiff]
235
[] Q: Abby obtained a favorable judgment against UNICAP for a sum of money. For failure to get
full payment, Abby went after UNICAP’s debtor, Ben. Ben is a policy holder of Insular. The court’s
sheriff then served a notice of garnishment to Insular over several account receivables due to Ben.
Insular refused to comply with the order alleging adverse claims over the garnished amounts. The trial
court ordered Insular to release to Abby the said account receivables of Ben under the policies.
Insular then filed a petition for certiorari with the CA alleging that the trial judge gravely abused his
discretion when he issued the garnishment order despite its adverse claim on the garnished amounts. The CA gave
due course to the petition and annulled the order of the trial court. Is the CA correct? A: No.
****Neither an appeal nor a petition for certiorari is the proper remedy from the denial of a
third-party claim. *****Since the third-party claimant is not one of the parties to the action, he could
not, strictly speaking, appeal from the order denying its claim, but should file a separate
REINVINDICATORY action against the execution creditor or a complaint for damages against the
bond filed by the judgment creditor in favor of the sheriff. The rights of a third-party claimant
should be decided in a separate action to be instituted by the third person (Solidum v. CA, G.R.
No. 161647, June 22, 2006).
c. Legal interest against both; or

d. So situated as to be adversely affected by a distribution or other disposition
of property in the custody of the court or of an officer thereof.
e. Intervention will not unduly delay or prejudice the adjudication of the
rights of original parties;
f. Intervenor’s rights may not be fully protected in a separate
proceeding (Sec. 1, Rule 19).
—————————————
g) Reply [Sec 10]

1. Definition: 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.
2. Rules on the necessity of filing a reply
a. GR: Not necessary, since even if a party does not file a reply, all the
new matters that were alleged in the answer are DEEMED
CONTROVERTED (Sec. 10, Rule 6).
b. XPNs:******
i. Where the answer alleges the defense of usury to recover usurious
interest, it must be denied under oath, otherwise, there will be an implied
admission to usury. But if usury is simply mentioned (i.e., not usurious
interest), it is enough to deny it simply—no need to deny it under oath;
ii. Where the defense in the answer is based on an actionable
document, a reply under oath pursuant to Sec. 8 of Rule 8 must be made.
Otherwise, the genuineness and due execution of the document shall be
deemed admitted (Sec. 8, Rule 8).236
3. *****Effect of non-filing of a reply: all the new matters alleged in the answer
are DEEMED CONTROVERTED.237
236
Q: X files a complaint in the Regional Trial Court for the recovery of a sum of money with
damages against Y. Y files his answer denying liability under the contract of sale and praying for
the dismissal of the complaint on the ground of lack of cause of action because the contract of
sale was superseded by a contract of lease, executed and signed by X and Y two weeks after the
contract of sale was executed. The contract of lease was attached to the answer. X does not file a
reply. What is the effect of the non-filing of a reply? Explain. (3%) (2000 Bar Question)
SUGGESTED ANSWER: A reply is generally optional. If it is not filed, the new matters
alleged in the answer are deemed controverted. (Sec. 10 of Rule 6. 1997 Rules of Civil Procedure).
*****However, since the contract of lease attached to the answer is the basis of the defense, by
not filing a reply denying under oath the genuineness and due execution of said contract, the
plaintiff is deemed to have admitted the genuineness and due execution thereof. (Secs. 7 and 8,
Rule 8,1997 Rules of Civil Procedure; Toribio u. Bidin, 134 SCRA 162 (1985])
237
A sued B for damages. B in his answer alleged as new matter the issue of prescription. No reply
thereto was filed by A. Can the action be dismissed for failure of A to controvert the new matter set up
by B? Explain.
4. Remedy for the plaintiff if he 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.
——————————————————
3.5.2. Pleadings allowed in small claim cases and cases covered by the
Rules on Summary Procedure
*cf. notes under small claims and SumPro, infra.238
———————————————————————————————
3.5.3. Parts of a pleading [Rule VII]

a) Caption [Sec 1]
b) Signature and address [Sec 3]
c) Verification [Sec 4] and certification against forum shopping [Sec 5]
i. Requirements of a corporation executing the
verification/certification of non-forum shopping
d) Effect of the signature of counsel in a pleading
PARTS OF A PLEADING [Rule VII]

1. Caption
2. Body – sets forth its designation, the allegations of the party’s claims or
defenses, the relief prayed for, and the date of the pleading.
a. Paragraphs
b. Headings
c. Relief
d. Date
Answer: No, because if no reply is filed, all the new matters alleged in the answer are deemed
controverted. (Sec. 11 of Rule 6)
238
BAR 2016: Q: Pedro and Juan are residents of Barangay Ifurug, Municipality of Dupac, Mountain
Province. Pedro owes Juan the amount of P50,000.00. Due to nonpayment, Juan brought his
complaint to the Council of Elders of said barangay which implements the bodong justice system.
Both appeared before the council where they verbally agreed that Pedro will pay in installments on
specific due dates. Pedro reneged on his promise. Juan filed a complaint for sum of money before the
Municipal Trial Court (MTC). Pedro filed a Motion to Dismiss on the ground that the case did
not pass through the barangay conciliation under R.A. No. 7160 and that the RTC, not the
MTC, has jurisdiction. In his opposition, Juan argued that the intervention of the Council of
Elders is substantial compliance with the requirement of R.A. No. 7160 and the claim of
P50,000.00 is clearly within the jurisdiction of the MTC. As MTC judge, rule on the motion
and explain.
SUGGESTED ANSWER: As MTC judge, I would deny the motion to dismiss. Under the Rules of
Procedure for Small Claims Cases, a motion to dismiss on whatever ground is a prohibited motion.
Here the complaint falls under the coverage of the Rules of Procedure for Small Claims Cases since the
claim for sum of money did not exceed P100,000. Hence the motion to dismiss filed by Pedro is a
prohibited motion and should thus be denied. [Note: Threshold amount was subsequently increased
to P200,000] (Jurist Review Center, Inc.)
3. Signature and address

4. Verification (in several cases)
5. Certification against forum shopping
CAPTION [Sec 1]
*The caption sets forth:
1. the name of the court,
2. the title of the action, and
• 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.
3. the docket number if assigned.
THE BODY OF THE COMPLAINT [Sec 2]

*The body of the pleading sets forth:
1. its designation,
2. the allegations of the party's claims or defenses,
3. the relief prayed for, and
*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.
a. GR: **Courts cannot grant a relief not prayed for in the pleadings or
in excess of what is being sought by a party to a case. Reason: DUE
PROCESS considerations justify this requirement. It is improper to enter an
order which exceeds the scope of relief sought by the pleadings, absent notice
which affords the opposing party an OPPORTUNITY to be HEARD with
respect to the proposed relief. The fundamental purpose of the requirement that
allegations of a complaint must provide the measure of recovery is to
PREVENT SURPRISE to the defendant. For the same reason, the protection
against surprises granted to defendants should also be available to petitioners.
Verily, both parties to a suit are entitled to due process against unforeseen
and arbitrary judgments. Bucal vs Bucal
b. XPN: when it is proven during trial with corresponding evidence:
Moreover, the prayer in the Complaint did state that "other reliefs just and equitable in
the premises are likewise prayed." The general prayer is BROAD ENOUGH to
"justify extension of a remedy different from or together with the specific
remedy sought." Even without the prayer for a specific remedy, proper relief
may be granted by the court if the facts alleged in the complaint and the
evidence introduced so warrant. The court shall grant relief warranted by the
allegations and the proof even if no such relief is prayed for. The prayer in the
complaint for other reliefs equitable and just in the premises justifies the grant
of a relief not otherwise specifically prayed for. Undeniably, PESALA's claim of

44,488,716.41 is a necessary consequence of the action it filed against PAL. As
said claim was duly heard and proven during trial, with PAL being afforded
the opportunity to contest it, the RTC and the Court of Appeals did not err in
granting such claim even though it was not specifically prayed for in the
complaint. PAL vs PESALA (2016)
4. the date of the pleading; Every pleading shall be dated.
SIGNATURE & ADDRESS [Sec 3]

1. Who signs every pleading? the party or counsel representing him, stating in
either case his address which should not be a post office box.
2. ******Effect of signature of counsel in a pleading: it CONSTITUTES A
CERTIFICATION239 by him:240
a. that he has read the pleading;
b. that to the best of his knowledge, information, and belief there is
good ground to support it; and
c. that it is not interposed for delay.
3. Effect of an unsigned pleading:
• GR: it produces no legal effect.
• XPN: However, the court may, in its discretion, allow such deficiency to be
remedied if it shall appear that the same was due to:
• a. mere inadvertence and
• b. not intended for delay.
4. Matters that can subject the counsel to appropriate DISCIPLINARY
ACTION; when he:
a. deliberately files an unsigned pleading, or
b. signs a pleading in violation of this Rule, or
c. alleges scandalous or indecent matter therein, or
239
The signature of counsel in the pleading constitutes a certification that __________.
(2013 BAR)
(A) both client and counsel have read the pleading, that to the best of their knowledge, information
and belief there are good grounds to support it, and that it is not interposed for delay
(B) the client has read the pleading, that to the best of the client’s knowledge, information and belief,
there are good grounds to support it, and that it is not interposed for delay
(C) the counsel has read the pleading, that to the best of the client’s knowledge, information and belief,
there are good grounds to support it, and that it is not interposed for delay
(D) the counsel has read the pleading, that based on his personal information, there are good grounds
to support it, and that it is not interposed for delay
(E) The above choices are not totally accurate.
240
What is the significance of a lawyer’s signature in the pleadings? *****The signature of a lawyer
constitutes a certification 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.
(Sec. 5 of Rule 7)
d. fails promptly report to the court a change of his address.
VERIFICATION [Sec 4]
1. Rules on verification requirement
a. GR: Pleadings need not be under oath, verified or accompanied by
affidavit;
b. XPN: Except when otherwise specifically required by law or rule. The
following are pleadings that must be verified:241
• Petition for relief from judgment;
• Petition for review from the RTCs to the CA;
• Petition for review from the CTA and quasi-judicial agencies to the CA;
• Appeal by certiorari from the CA to the SC;
• Petition for annulment of judgments or final orders and resolutions;
• Complaint for injunction;
• Application for appointment of receiver;
• Application for support pendente lite;
• Petition for certiorari against the judgments, final orders or resolutions
of constitutional commissions;
• Petition for certiorari, prohibition, mandamus, quo warranto
• Complaint for expropriation;
• Complaint for forcible entry or unlawful detainer;
• Petition for indirect contempt;
• Petition for appointment of general guardian;
• Petition for leave to sell or encumber property of an estate by a
guardian;
• Petition for the declaration of competency of a ward;
• Petition for habeas corpus;
241
What pleadings are allowed by the rules? The pleadings allowed by the rules are the complaint, the
answer, the counterclaim, the crossclaim, the reply, the third-party (fourth-party etc.) complaint. (Sec. 2
of Rule 6)
[] What pleadings must be verified? Those required by law to be verified, such as:
a. ForcibleEntry and UnlawfulDetainer. (Sec.1ofRule70)
b. Denial of genuineness and due execution of a written instrument which is the
basis of an action or defense. (Sec. 8 of Rule 8)
c. Denial of allegations of usury. (Sec.1ofRule9) [TOM—to be more accurate, it should be:
Allegations of usury in a complaint to recover usurious INTEREST are deemed admitted if not
denied under oath]
d. Petitions for certiorari, prohibition and mandamus. (Rule 65)
e. Pleadings in Summary Procedure.
• Petition for change of name;

• Petition for voluntary judicial dissolution of a corporation;
• Petition for correction or cancellation of entries in Civil Registry (Sec.
1, Rule 108, Rules of Court);
• All other initiatory pleadings, EG: Complaint.
[] SIGNIFICANCE of Verification: It is intended to secure an assurance
that the allegations in a pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the pleading is filed in good faith.
(Riano, 2014, citing Sarmiento v. Zaratan, February 5, 2007; BPI vs CA, 17 October
2008). ******The absence of a proper verification is cause to treat the pleading
as unsigned and dismissible (Riano, 2014, citing Chua v. Torres, 30 August 2005).
2. How is a pleading verified?
a. by an affidavit (under oath)
b. that the affiant has read the pleading and
c. that the allegations therein are true and correct of his (personal)
knowledge and belief; or based on authentic records
3. What pleadings are treated as unsigned pleadings? Elements:
a. it is a pleading required to be verified;
b. it contains a verification based on:
i. ”information and belief", or
ii. upon "knowledge, information and belief", or
iii. lacks a proper verification.
4. Who signs it? *****It is the PARTY who signs the verification, not the
lawyer, although the lawyer can sign it under compelling reasons. NB:
A minor can sign, but he must be assisted.
5. Note that Verification is only a formal requirement. It is not
jurisdictional. Failure to attach is not fatal. But in the SC and CA, they
dismiss without prejudice for failure to comply with procedural
requirements.
6. Rule on cases involving MULTIPLE PARTIES
a. GR: ALL of them must sign the verification. (applies also to
CAFS)
b. XPN: when they have a common interest among them. In this
case, a signature of one will suffice.242 (No need for authority from
others either). Examples of common interests:
i. Heirs, with regard to property allegedly bequeathed to
them (Iglesia v Ponferrada, 2006: only one heir signed the verification
and it was allowed by the court);
ii. Spouses and family members, involving the family home;
iii. Members of a co-ownership, involving the property of the

co-ownership;
iv. Arising from the same transaction [Juaban v. Espina]
EFFECTS OF LACK OF VERIFICATION

1. A pleading required to be verified but lacks the proper verification
shall be treated as an unsigned243 pleading (Sec. 4 as amended by
A.M. 00-2-10, May 1, 2000). Hence, it produces no legal effect (Sec.
3, Rule 7).
2. It does not necessarily render the pleading defective. It is only a
formal and not a jurisdictional requirement. The requirement is a
condition affecting only the form of the pleading (Benguet Corp. v.
Cordillera Caraballo Mission, Inc., September 2, 2005) and non-
compliance therewith does not necessarily render it fatally defective
(Sarmiento v. Zaranta, February 5, 2007).
3. The absence of verification may be corrected by requiring an oath.
The rule is in keeping with the principle that rules of procedure are
established to secure substantial justice and that technical
requirements may be dispensed with in meritorious cases
(Pampanga Sugar Development Co., Inc. v. NLRC, May 29, 1997). NB:
substantial compliance is enough.244
CERTIFICATION AGAINST FORUM SHOPPING245 (CAFS; Sec 5)

[] Use either CAFS or CNFS (Certification of Non-Forum Shopping)
1. What is Forum Shopping? It is an act of a party against whom an adverse
judgment has been rendered in one forum of seeking and possibly getting a favorable
243
A complaint without the required "verification" (2011 BAR)
(A) shall be treated as unsigned.
(B) lacks a jurisdictional requirement.
(C) is a sham pleading.
(D) is considered not filed and should be expunged.
244
Bar 2000: For failure of KJ to file an answer within the reglementary period, the Court, upon
motion of LM, declared KJ in default. In due time, KJ filed an unverified motion to lift the order of
default without an affidavit of merit attached to it. KJ however attached the motion in his answer
under oath, stating in said answer his reasons for his failure to file an answer on time, as well as his
defenses. Will the motion to lift the order of default prosper?
******YES, there is substantial compliance with the rule. Although the motion is unverified, the
answer attached to the motion is verified. The answer contains the motion to lift the order of default and the
affidavit of merit should contain, which are the reasons of the movant’s failure to answer as well as his
defenses. (Sec.3 [b] of Rule 9; Cf. Cititbank, N.A. vs. Court of Appeals, 304 SCRA 679, [1999])
245
What is forum shopping? 2.5% (2007 Bar Question) SUGGESTED ANSWER:
*****Forum-shopping is the act of filing multiple suits involving the same parties for the
same cause of action, either simultaneously or successively, for the purpose of obtaining a
favorable judgment (Executive Secretary v. Gordon, 298 SCRA 735 (19981).
opinion in another forum,246 other than by appeal or the special civil action
of certiorari (Sps. Carpio v. Rural Bank of Sto. Tomas Batangas, May 4, 2006).
******The filing of multiple suits in different courts, either
simultaneously or successively, involving the same parties, to ask
the courts to a. rule on the same or related causes, and/or
b. grant the same or substantially same reliefs.
2. Tests to determine existence of forum shopping: Whether in the two or more
cases pending, there is identity of:
a. Parties
b. Rights or Causes of action
c. Reliefs sought (Huibonhoa v. Concepcion, August 3, 2006)
3. Nature of CAFS: *****It is a mandatory requirement in filing a complaint and
other initiatory pleadings247 asserting a claim or relief (Sec. 5, Rule 7). NB: This rule
also applies to special civil actions since a special civil action is governed by the
rules for ordinary civil actions, subject to the specific rules prescribed for special civil
action (Riano, 2014, citing Wacnang v. COMELEC, October 17, 2008). NB: Hence, it
is not required in a compulsory counterclaim, but it is required in a permissive
246
Q: Mr. Humpty file with the Regional Trial Court (RTC) a complaint against Ms. Dumpty for
damages. The RTC, after due proceedings, rendered a decision granting the complaint and ordering
Ms. Dumpty to pay damages to Mr. Humpty. Ms. Dumpty timely filed an appeal before the Court of
Appeals (CA), questioning the RTC decision. Meanwhile, the RTC granted Mr. Humpty’s motion for
execution pending appeal. Upon receipt of the RTC’s order granting execution pending appeal, Ms.
Dumpty filed with the CA another case, this time a special civil action for certiorari assailing said RTC
order. Is there a violation of the rule against forum shopping considering that two (2) actions
emanating from the same case with the RTC were filed by Ms. Dumpty with the CA? Explain. (2014)
A: NO. There is no violation of the rule against forum shopping. The essence of forum
shopping is the filing by a party against whom an adverse judgment has been rendered in one forum,
seeking another and possibly favorable opinion in another suit *****other than by appeal or special
civil action for certiorari; the act of filing of multiple suits involving the same parties for the same
cause of action, either simultaneously or successively for the purpose of obtaining a favorable
judgment. Forum shopping exists where the elements of litis pendentia are present or where a
final judgment in one case will amount to res judicata in the action under consideration (Roberto
S. Benedicto v. Manuel Lacson, G.R. No. 141508, May 5, 2010). In Philippines Nails and Wires
Corporation v. Malayan Insurance Company, Inc., G.R. No. 143933, February 14, 2003, the Supreme
Court held that one party may validly question a decision in a regular appeal and at the same time
assail the execution pending appeal via certiorari without violating the rule against forum shopping.
This is because the merits of the case will not be addressed in the Petition dealing with the execution
and vice versa. Since Ms. Dumpty merely filed a special civil action for certiorari, the same will not
constitute a violation of the rules on forum shopping because the resolution or a favorable
judgment thereon will not amount to res judicata in the subsequent proceedings between the
same parties. (Roberto S. Benedicto v. Manuel Lacson, G.R. No. 141508, May 5, 2010).
247
A certificate against Forum-Shopping is not required in: (2012 BAR)
a. petitions for probate of will.
b. application for search warrant.
c. complaint-in-intervention.
d. petition for Writ of Kalikasan.
counterclaim.248
4. Who makes/signs the CAFS? The plaintiff or principal party; On LGUs, it is
the mayor, not the (City) Legal Officer, who has the authority to file suits for the
recovery of funds and property on behalf of the city even without the prior
authorization from the Sanggunian.249
a. GR: the lawyer cannot sign the CAFS;250
b. XPN: in the interest of justice, he must be duly-authorized.251
5. Rule on MULTIPLE PARTIES:
a. GR: Like in verification, yes, they all have to sign.
b. XPN: when they all share a common interest and invoke a
common cause of action or defense, the signature of only one of
248
Q: RC filed a complaint for annulment of the foreclosure sale against Bank V. In its answer, Bank V
set up a counterclaim for actual damages and litigation expenses. RC filed a motion to dismiss the
counterclaim on the ground that Bank V’s Answer with Counterclaim was not accompanied by a
certification against forum shopping. Rule. (5%) (2007 Bar Question) SUGGESTED ANSWER:
A certification against forum shopping is required only in initiatory pleadings. In this case,
the counterclaim pleaded in the defendant’s Answer appears to have arisen from the plaintiff's
complaint or compulsory in nature and thus, may not be regarded as an initiatory pleading. The
absence thereof in the Bank’s Answer is not a fatal defect. Therefore, the motion to dismiss on the
ground raised, lacks merit and should be denied (UST v. Surla, 294 SCRA 382 [1998]).
On the other hand, if the counterclaim raised by the defendant Bank’s Answer was not
predicated on the plaintiffs claim or cause of action, it is considered a permissive counterclaim. In
which case, it would partake of an initiatory pleading which requires a certification against forum
shopping. Correspondingly, the motion to dismiss based on lack of the required certificate against
forum shopping should be granted.
249
*Q: A city mayor (M) filed an action against a corporation for the annulment of the deed of absolute sale over
several real properties of K City. He alleges irregularities thereto but the RTC dismissed the petition
because the certification against forum shopping was signed by the City Legal Officer of K
City and not by Mayor Miguel. Is the RTC correct? YES. It is ***the mayor, not the City Legal Officer,
who has the authority to file suits for the recovery of funds and property on behalf of the city even
without the prior authorization from the Sanggunian. Being the proper party to file such suits, M
must necessarily be the one to sign the certification against forum-shopping, and not the City Legal
Officer, who, despite being an official of the City, was merely its counsel and not a party to the
case (City of Caloocan v. CA, May 3, 2006).
250
*Bar 2000: To avoid further delays in the filing of the complaint (since his clients are not
available), Atty. XY signed the CAFS and immediately filed the complaint in court. Is XY justified?
NO. *****Counsel cannot sign the CAFS because it must be executed by the “plaintiff or
principal party” himself (Sec. 5, Rule 7), since the rule requires personal knowledge by the party
executing the certification, UNLESS counsel gives a GOOD REASON why he is not able to secure
his client’s signatures and shows that his clients will be deprived of SUBSTANTIAL justice (Ortiz v.
Court of Appeals, 209 SCRA 708, [1998]) or unless he is AUTHORIZED to sign it by his clients
through a special power of attorney (SPA).
251
**If, for any reason, the principal party cannot sign the petition, the one signing on his behalf must
have been duly authorized. *****With respect to a corporation, the certification against forum shopping
may be signed for and on its behalf, by a specifically authorized lawyer who has personal
knowledge of the facts required to be disclosed in such document (Cosco Philippines Inc. v. Kemper
Insurance Co, April 23, 2012). See more on juridical persons, infra.
them will SUBSTANTIALLY comply with the rules (Juaban v Espina,

2008)252
c. NB: The rule of SUBSTANTIAL compliance may be availed of with
respect to the contents of the certification. This is because the requirement of strict
compliance with the provisions regarding the certification of non-forum shopping merely
underscores its mandatory nature in that the certification cannot be
altogether dispensed with or its requirements completely disregarded.253
6. UNDERTAKINGS of a party in a CAFS: he 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
252 252
BAR 2016: Q: Tailors Toto, Nelson and Yenyen filed a special civil action for certiorari under
Rule 65 from an adverse decision of the National Labor Relations Commission (NLRC) on the
complaint for illegal dismissal against Empire Textile Corporation. They were terminated on the
ground that they failed to meet the prescribed production quota at least four (4) times. The NLRC
decision was assailed in a special civil action under Rule 65 before the Court of Appeals (CA). In the
verification and certification against forum shopping, only Toto signed the verification and
certification, while Atty. Arman signed for Nelson. Empire filed a motion to dismiss on the
ground of defective verification and certification. Decide with reasons.
SUGGESTED ANSWER: The motion to dismiss on the ground of defective verification
should be denied. The Supreme Court has held that a lawyer may verify a pleading in behalf of
the client. Moreover a verification is merely a formal and not a jurisdictional requirement. The court
should not dismiss the case but merely require the party concerned to rectify the defect. The motion
to dismiss on the ground of defective certification against forum-shopping should likewise be
denied. Under reasonable or justifiable circumstances, as when all the plaintiffs or petitioners
share a common interest and invoke a common cause of action or defense, the signature of
only one of them in the certification against forum shopping substantially complies with the
Rule. (Jacinto v. Gumaru, 2 June 2014). Here the Petitioners have a common interest and invoke a
common cause of action, that is, their illegal dismissal by Empire Textile Corporation for failure to
meet production quotas.
253
6. MORE ON SUBSTANTIAL COMPLIANCE IN THE FILING OF CAFS: Rules on forum
shopping were designed to promote and facilitate the orderly administration of justice, should not
be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective. The rule of
SUBSTANTIAL compliance may be availed of with respect to the contents of the certification.
This is because the requirement of strict compliance with the provisions regarding the certification of non-forum
shopping merely underscores its mandatory nature in that the certification cannot be altogether
dispensed with or its requirements completely disregarded. It does not thereby interdict
substantial compliance with its provisions under JUSTIFIABLE CIRCUMSTANCES (Cavile v.
Heirs of Clarita Cavile, 448 Phil 302).
the court wherein his aforesaid complaint or initiatory pleading has been filed.
**Effect of non-compliance with the any of the undertakings? same effect
as the submission of false certification, i.e., such failure shall constitute indirect
contempt of court without prejudice to the corresponding administrative and
criminal sanctions
[] ******Simpler version of the contents: certify, UNDER OATH,
a. that he has not filed a similar complaint involving the same
issues in another court, tribunal, quasi-judicial agency, and to the best of
his knowledge, no such other action or claim is pending therein;;
b. If there is any other pending claim, he must provide a complete
statement of the present status thereof;
c. If he thereafter learn about a similar action, he shall report such
fact within 5 days to the court where his complaint or initiatory pleading
has been filed.
7. When is it needed? In every initiatory pleading. *****Hence, it is
NOT needed in a motion (even if it’s erroneously labeled as a
“petition.”) [PTA v Metrobank, 2010: Metrobank filed for a ‘petition’ for
the issuance of a writ of possession following a foreclosure sale.
Court said that it’s really a motion and no CAFS was needed].
EFFECTS OF NON-COMPLIANCE OR SUBMISSION OF FALSE

CAFS OR BELATED FILING****
1. EFFECT OF ABSENCE OF CAFS: Is the failure to comply curable by
mere amendment254 of the complaint or other initiatory pleading?
*GR: NO. It shall be cause for the dismissal of the case WITHOUT
PREJUDICE,255
254
[] Bar 2006: AA filed a complaint for specific performance against BB. For lack of CAFS, the
judge dismissed the complaint. AA’s lawyer filed a motion for reconsideration, attaching thereto
an amended complaint with the CAFS. Resolve the motion: Motion denied after hearing. Why?
*****Failure to comply with the requirement is not curable by mere amendment of the
complaint or other initiatory pleading, but shall be cause for dismissal of the case, without
prejudice, unless otherwise provided. However, the trial court in the exercise of its sound discretion,
may choose to be liberal and consider the amendment as substantial compliance (Great Southern
Maritime Services Corp. v. Acuna, February 28, 2005; Chan v. RTC of Zamboanga del Norte, April 15,
2004; Uy v. Land Bank, July 24, 2000).
255
Q: Honey filed with the Regional Trial Court, Taal, Batangas a complaint for specific performance
against Bemie. For lack of a certification against forum shopping, the judge dismissed the
complaint. Honey's lawyer filed a motion for reconsideration, attaching thereto an amended
complaint with the certification against forum shopping. If you were the judge, how will you resolve
the motion? 5% SUGGESTED ANSWER:
If I were the judge, I will deny the Motion for Reconsideration. The requirement of filing a
certificate of non-forum shopping is mandatory; it is not curable by mere amendment of the
complaint but the dismissal of the case shall be without prejudice. [Sec. 5, Rule 7 of the 1997
Revised Rules of Civil Procedure]. *****However, The rule may be liberally construed when there
*XPN: unless otherwise provided, upon motion and after hearing. In certain
exceptional circumstances, the Court has allowed the belated filing of the
certification based on SUBSTANTIAL COMPLIANCE.256
*NB1: **After filing an M/R and it is further denied, note that such
order dismissing a case without prejudice is not appealable; hence, the
proper remedy is a petition for certiorari.
*NB2: ****The defect cannot be cured by an amendment, just
re-file it.
2. EFFECTS of the submission of a FALSE certification or NON-
COMPLIANCE with any of the undertakings therein:
a. it shall constitute INDIRECT CONTEMPT of court (for failure to
comply with order or process of court)
b. without prejudice to the corresponding administrative and criminal
actions (since you lied under oath)
c. dismissal of the case [added by Ingles]
3. EFFECTS if the acts of the party or his counsel clearly constitute WILLFUL
are compelling reasons and a strict and literal application of the rules on non-forum shopping and
verification will result in a patent denial of substantial justice (Valte v. Court of Appeals, 433 SCRA
185 [2004]; Wack Wack Golf &. Country Club v. National Labor Relations Commission, 456 SCRA
280 [2005]).
256
BELATED FILING OF CAFS:
*GR: Failure to file verification and CAFS is a ground for dismissal. The lack of certification
against forum shopping is generally not curable by the submission thereof after the filing of the petition.
*XPN: In certain exceptional circumstances, the Court has allowed the belated filing of the
certification based on SUBSTANTIAL COMPLIANCE: In a number of those cases, the court
considered the subsequent filing of the certification and even the subsequent submission of
proof indicating authority to sign the same as substantial compliance since the purpose of filing
the certification is to curtail forum shopping. Fuji Television vs Espiritu (2014)
a. The subsequent appending in petitioners' motion for reconsideration of the board
resolution authorizing Yap to sign the certification of non-forum shopping CURED THE INITIAL
DEFECT of the same having been signed by Yap without a valid board resolution. Clearly, a defect in the
certification is allowed on the ground of substantial compliance as in this case. Yap vs Siao (2016)
b. In Loyola v. CA, [1995]: the Court considered the filing of the certification one day after
the filing of an election protest as substantial compliance with the requirement.
c. In Roadway Express, Inc. v. CA [1996]: the Court allowed the filing of the certification 14
days before the dismissal of the petition.
d. In Uy v. LandBank: the Court had dismissed Uy’s petition for lack of verification and
certification against non-forum shopping. However, it subsequently reinstated the petition after Uy
submitted a motion to admit verification and non-forum shopping certification.
*****In all these cases, there were special circumstances or COMPELLING REASONS
that justified the relaxation of the rule requiring verification and certification on non-forum shopping. Any
liberal application of the rule on attachment of certification against forum shopping has to be justified
by ample and SUFFICIENT REASONS that maintain the integrity of, and do not detract from,
the mandatory character of the rule (Bank of the Philippine Islands v. CA, October 6, 2010).
and DELIBERATE257 forum shopping; it shall be258

a. ground for SUMMARY DISMISSAL WITH PREJUDICE and
b. shall constitute DIRECT CONTEMPT,
c. as well as a cause for ADMINISTRATIVE sanctions.
*****If the forum shopping is NOT considered willful and deliberate,
the subsequent case shall be dismissed without prejudice, on the ground of either
litis pendentia or res judicata.259 However, if the forum shopping is willful and
deliberate, both (or all, if there are more than two) actions shall be dismissed
with prejudice (Chua v. Metrobank, August 19, 2009).
4. WHICH OF THE TWO CASES WILL BE DISMISSED, if there are two
pending cases?
a. GR: the later case.
b. XPN: the first case may be the one dismissed if the later
action is the more appropriate vehicle for the ventilation of the issues
between the parties. (UCPB v Beluso, 2007)
PERIOD TO INVOKE RULE ON FORUM SHOPPING

1. GR: It should be raised at the earliest opportunity in a motion to dismiss or
a similar pleading (Young v. Keng Seng, March 5, 2003).
2. XPNs: It may be invoked in later stages only if the violation arises from or will result
in:
a. The loss of jurisdiction over the subject matter;
b. The pendency of another action between the same parties for the same cause;
c. Barring of the action by a prior judgment; or
d. The Statute of Limitations has been crossed (Ibid).
3. NB: Although they are notaries public ex-officio, Clerks of Court are not the
proper officers to notarize verification & CAFS. Hence, it is not proper
compliance with the rules if it’s the Clerk who notarized the documents of the
parties.260
257
NB: (it’s not only false but you also deliberately disregarded it)
258
When a party or counsel willfully or deliberately commits forum shopping, the initiatory pleading
may: (2012 BAR)
a. becuredbyamendmentofthecomplaint.
b. uponmotion,bedismissedwithprejudice.
c. be summarily dismissed with prejudice as it may constitute direct contempt.
d. bestrickenfromtherecord.
259
**NB: Litis pendentia and forum shopping have similar elements, so it is best for the counsel
to move for the dismissal based on forum shopping [Sec. 5, Rule 7] and show that the party or his
counsel willfully and deliberately resorted to forum shopping because the effect is a dismissal with
prejudice in addition to the sanction for direct contempt as well as a cause for administrative
sanctions.
260
The Court has held that Clerks of Court are notaries public ex-officio, and may thus notarize
documents or administer oaths but only when the matter is related to the exercise of their official
functions. Clerks of court should not, in their ex-officio capacity, take part in the execution of
———————————————
RULE WHEN PLAINTIFF IS A JURIDICAL PERSON AS TO

VERIFICATION & CAFS
1. GR: The CAFS may be executed by the properly or duly-authorized person
(through a Board resolution), who has personal knowledge of the facts required
to be disclosed in the certification. He may be a lawyer of the corporation (Riano,
2014, citing National Steel Corporation v. CA, August 29, 2002). NB: Failure to
provide a CAFS or to accompany with proof of the signatory’s authority
are sufficient grounds to dismiss the petition. (Republic v Coalbrine,
2010)
2. XPN: The following officers may sign the verification and certification of non-
forum shopping on behalf of the corporation even in the absence of a board
resolution:
a. Chairperson of the Board of Directors;
b. President (of a corporation);
c. General Manager (or Acting General Manager);
d. Personnel Officer;
e. Employment Specialist in labor cases.
[] Rationale: *****They are in a position to verify the truthfulness and
correctness of the allegations in the petition. (Mid Pasig Land and Development
Corporation v. Tablante, February 4, 2010). NB: The ones in parentheses were
from Cagayan Valley Drug Corp. vs CIR (2008). The list is NOT EXCLUSIVE:261
While the enumeration of officers in the case of Cagayan Valley Drug Corp. vs
CIR did not provide a complete listing of authorized signatories to the
verification and certification required by the rules, the determination of the sufficiency of
the authority was done on a case to case basis, following the RATIONALE (supra). Fuji
Television vs Espiritu (2014)
PRIVATE documents bearing no relation at all to their official functions. Even if it is to be conceded that
the CA Petition for Review is merely a continuation of the proceedings in the civil case before the MTCC or
RTC, the Court cannot agree with Mathaeus’ argument that the notarization of verifications &
certifications on non-forum shopping constitutes a part of a clerk of court’s daily official
functions. Verification and certification by the clerk of court is not proper compliance with the
Rules. Mathaeus vs Medequiso (2016)
261
In a Condominium association: The fact that no board resolution was submitted by West Tower
Corp. authorizing Manuel DyChuaunsu, Jr. to sign the Verification and Certification of Non-forum
Shopping is irrelevant. The records show that petitioners submitted a notarized Secretary’s
Certificate attesting that the authority of Chuaunsu to represent the condominium corporation in
filing the petition is from the resolution of the total membership of West Tower Corp. issued during
their November 9, 2010 meeting with the requisite quorum. It is, thus, clear that it was not the
Board of West Tower Corp. which granted Chuaunsu the authority but the full membership of
the condominium corporation itself.
As to the residents of Barangay Bangkal, they are similarly situated with the unit owners
and residents of West Tower and are real parties-in-interest to the instant case, i.e., if they so wish to join
the petitioners. West Towers Condominium v. First Phil. Industrial Corporation, June 16, 2015
———————————————————————————————
3.5.4. Allegations in a pleading [Rule VIII]

a) Manner of making allegations
b) Pleading an actionable document [AD; Sec 7-8]
c) Specific denials [Sec 10-11]
i. Effect of failure to make specific denials [Sec 11]
ii. When a specific denial requires an oath; two instances
MANNER OF MAKING ALLEGATIONS

1. General considerations [Sec 1]:
a. 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;
b. The statement of mere evidentiary facts must be omitted;
c. If a defense relied on is based on law, the pertinent provisions thereof
and their applicability to him shall be clearly and concisely stated.
2. *****Rule in making a pleading: Every pleading shall contain in a methodical
and logical form a plain, concise and direct statement of the ULTIMATE
FACTS, omitting the statement of mere evidentiary facts (Sec. 1, Rule 8).
a. Ultimate facts refer to the ESSENTIAL FACTS of the claim. A fact is
essential if it cannot be stricken out without leaving the statement of the cause of action
insufficient (Ceroferr Realty Corporation v. CA, G.R. No. 139539, February 5,
2002).
b. A pleading should state the ultimate facts essential to the rights of action
or defense asserted, *****as distinguished from mere conclusion of fact, or
conclusion of law. EG:
i. An allegation that a contract is valid, or void, as in the instant case, is a mere
conclusion of law (Remitere v. Yulo, G.R. No. L-19751, February 28, 1966);
ii. Allegations that the defendant acted in bad faith, arbitrarily,
illegally, wrongfully and in violation of the law are mere conclusions of fact or
conclusions of law.262
WHAT MUST BE AVERRED GENERALLY or with

PARTICULARITY**
1. GENERAL: CONDITION PRECEDENT [Sec 3]
a. It refers to matters which **must be complied with before a cause of
262
The complaint alleged that the defendant acted in bad faith, arbitrarily, illegally, wrongfully, and in
violation of law. However, it did not contain any averment of facts showing that defendant's acts were
done in the manner alleged. Does the complaint state a cause of action? Explain.
No, because it does not state the ultimate facts constituting the plaintiffs cause of action. The
allegations that the defendant acted in bad faith, arbitrarily, illegally, wrongfully and in violation of the
law are mere conclusions of fact or conclusions of law. (Remitere vs. Vda. De Yulo, 16 SCRA 251)
action arises (Riano, 2014).

b. Rule on condition precedent: When a claim is subject to a condition
precedent, the compliance of the same MUST BE ALLEGED in the pleading.
(Id.) Otherwise, it will be an **independent ground for a motion to dismiss:
that a condition precedent for filing a claim has not been complied with (Riano,
2014, citing Sec. 1(j), Rule 16, Rules of Court).
c. a general averment of the performance or occurrence of all conditions precedent
shall be sufficient.
2. MIXED: Fraud, mistake, malice, intent, knowledge and other condition
of the mind [Sec 5]:
a. PARTICULAR: To be stated with PARTICULARITY (FM): all
averments of fraud or mistake; the circumstances constituting fraud or mistake
must be stated with particularity. These particulars which would necessarily
include SPECIFIC acts of fraud committed against the plaintiff would help
apprise the judge of the kind of fraud involved in the complaint (Riano, 2014).
b. GENERAL AVERMENT (MIKOM): Malice, intent, knowledge, or
other CONDITION OF THE MIND of a person may be averred generally.
3. Judgments [Sec 6]: In pleading a judgment or decision of a domestic or foreign
court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the
judgment or decision without setting forth matter showing jurisdiction to render it.
4. Official documents or acts [Sec 9]: 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. With respect to an act, it is likewise sufficient to allege that
the act was done also in compliance with law (Riano, 2014, citing Sec. 9, Rule 8).
5. Capacity [Sec 4]
a. 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.
b. What if a party desires 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? He
shall do so by SPECIFIC denial, which shall include such supporting
particulars as are peculiarly within the pleader's knowledge.
Three kinds263 of denial under Sec 10, Rule 8

[Forms of denials amounting to negative defenses]:
263
SPECIFIC DENIALS [Sections 10-11]
1. GR: defendant must
a. specify each material allegation of fact the truth of which he does not admit and,
b. whenever practicable, shall set forth the substance of the matters upon which he relies to
support his denial.
2. XPN: Where a defendant desires to deny only a part of an averment, he shall specify:
1. Absolute denial: The defendant specifies each material allegation

of fact the truth of which he does not admit and, whenever practicable,
sets forth the substance of the matters upon which he relies to support
his denial. Do it paragraph by paragraph; do not say “I deny all
specifically” because that will be tantamount to an admission.
2. Partial denial: admit a part and deny a part; The defendant does not
make a total denial of the material allegations in a specific paragraph.
3. Denial by disavowal of knowledge: the defendant alleges that he “is
without knowledge or information sufficient to form a belief as to
the truth of a material averment made in the complaint.” (Riano, 2014,
citing Sec. 10, Rule 8, Rules of Court and Philippine Bank and
Communications v. Go, G.R. No. 175514, February 14, 2011); Denial
where there is an averment of lack of knowledge: you cannot refer to
obvious statements, like denying par 1, which is your name and
address. This is clear that you are fooling the court. Or you deny a
notarized document with your signature. Hence, the court will consider it
as an admission when you deny only for the sake of making a denial.264
*****NB: If such matters are plainly and necessarily within the
defendant’s knowledge, a claim of “ignorance of information will not
be considered a specific denial” (Aquintey v. Tibong, G.R. No.
166704, December 20, 2006).265
a. so much of it as is true and material and
b. shall deny only the remainder.
3. *****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.
264
Q: In a complaint for recovery of real property, the plaintiff averred, among others, that he is
the owner of the said property by virtue of a deed of sale executed by the defendant in his favor.
Copy of the deed of sale was appended to the complaint as Annex “A" thereof. In his unverified
answer, the defendant denied the allegation concerning the sale of the property in question, as well as
the appended deed of sale, for lack of knowledge or information sufficient to form a belief as to
the truth thereof. Is it proper for the court to render judgment without trial? Explain. (4%)(2005
Defendant cannot deny the sale of the property for lack of knowledge or information sufficient
to form a belief as to the truth thereof. The answer, being defective, amounts to an admission.
(Phil. Advertising Counselors, Inc. v. Revilla, 52 SCRA 246 [19731; Sec. 10, Rule 8,1997 Rules of Civil
Procedure). Moreover, the genuineness and due execution of the deed of sale can only be denied
by the defendant under oath and failure to do so is also an admission of the deed. (Sec. 8, 1997
Rules of Civil Procedure). *****Hence, a judgment on the pleadings can be rendered by the court
without need of a trial. (Gutierrez v. Court of Appeals, 74 SCRA 127 [1976]).
265
Q: In an action for recovery of a sum of money, the plaintiff averred in the complaint that “on
January 15, 1990, the defendant obtained a loan from the plaintiff in the sum of P100,000.00 which he
promised to pay to the latter on or before July 15,1990 plus interest thereon at the rate of 18% per
annum from January 15,1990 until fully paid" and that “the aforesaid loan has long been overdue but
despite repeated demands, the defendant failed and refused, and still fails and refuses to pay to the
plaintiff the aforesaid sum of P100,000.00 and the accrued interest." Answering the complaint, the
defendant denied the aforequoted averments and gave the reason for the denial his lack of knowledge
Summary: IMPLIED JUDICIAL ADMISSIONS

1. If defendant fails to specifically deny the material allegations in the complaint:
hence, they are deemed judicial admissions:266
a. “complaint” includes not just original complaint but also cross, counter,
3P-complaints.
b. If only a GENERAL DENIAL267 is made (EG: “I vehemently and
specifically deny all the material allegations of the complaint”), that constitutes a
judicial admission.268 A NEGATIVE PREGNANT is an admission.
c. Example of a specific denial: admit the liability but dispute the amount:
“Plaintiff claims the liability of the defendant under the contract and alleges that
he spent 5M due to the breach of defendant”; an actual damage which must be
proven in court (Sec. 11 Rule 8), hence, there is still factum probandum, that
is, prove the actual amount.
or information sufficient to form a belief as to the truth of said averments. What is the effect of such
denial? With such form of denial, what course of action may be availed of by the plaintiff? Explain.
The denial of the averments of the complaint claiming lack of knowledge or information
sufficient to form a belief as to the truth of said averments is not a sufficient specific denial. The
allegation in the complaint, that the defendant obtained a loan from the plaintiff and failed and refused
to pay the same, is so plainly and necessarily within the defendant’s knowledge that his claim of
ignorance must be palpably not true. [Warner Barnes vs. Reyes. 103 Phil. 602) Since the answer tenders
no issue or otherwise admits the material allegations of the complaint, the plaintiff may properly file a
motion for Judgment on the pleadings. (Rule 19: Manufacturers Bank & Trust Co. vs. Diversified
Industries. Inc.. 173 SCRA 357)
266
[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]
267
What is the effect of a general denial?
a. GR: Material averments in the complaint shall be DEEMED ADMITTED when
not specifically denied; *****General denial is tantamount to an admission, even if the word
“specific” is used.
b. XPNs:
i. those as to the amount of unliquidated damages (if liquidated, they are
deemed admitted), and
ii. immaterial averments (allegations by way of anticipation of defense or
conclusions of law)
268
Plaintiff Manny said in his complaint: "3. On March 1, 2001 defendant Letty borrowed P1 million
from plaintiff Manny and made a promise to pay the loan within six months." In her answer, Letty
alleged: "Defendant Letty specifically denies the allegations in paragraph 3 of the complaint that she
borrowed P1 million from plaintiff Manny on March 1, 2001 and made a promise to pay the loan
within six months." Is Letty’s denial sufficient? (2011 BAR)
(A) Yes, since it constitutes specific denial of the loan.
(B) Yes, since it constitutes positive denial of the existence of the loan.
(C) No, since it fails to set forth the matters defendant relied upon in support of her denial.
(D) No, since she fails to set out in par. 2 of her answer her special and affirmative defenses.
d. NB: not all allegations not specifically denied are deemed admitted: only
the material allegations are deemed admitted! **Immaterial allegations are
not deemed admitted, as well as irrelevant matters.
e. **Conclusions are not deemed admitted too (when what was alleged
was a conclusion), because conclusions are not allegations of facts—if you do
not deny them, they are not deemed admitted; it is for the court to conclude,
not for the party who files the pleading. EG: **you cannot say the defendant
committed an equitable mortgage—that’s for the court to decide.
f. *****If there is nothing more to prove, because everything is deemed
admitted, one can file a Motion for Judgment on the Pleadings.269
2. When denial must be made UNDER OATH,270 i.e., specific denials are
not enough:
a. a complaint to recover usurious interest [r8s11: this means Rule 8,
Section 11) must be denied under oath, otherwise, there will be an implied
admission to usury. **But if usury is simply mentioned (i.e., not usurious
interest), it is enough to deny it simply—no need to deny it under oath;
b. complaints involving actionable documents (AD). It’s an AD if it is
the BASIS OF THE ACTION.
[] PLEADING AN ACTIONABLE DOCUMENT [Sections 7 &
8]. Applicability: Whenever an action or defense is based/founded upon a written
269
EFFECT OF FAILURE TO MAKE SPECIFIC DENIAL [Sec 11]
1. What allegations are required to be SPECIFICALLY DENIED? Material averment in the
complaint, other than those as to the amount of unliquidated damages
2. Effect when not specifically denied? they shall be deemed admitted when not specifically denied. If the
allegations are deemed admitted, there is no more triable issue between the parties and
if the admissions appear in the answer of the defendant, the plaintiff may file a motion for
judgment on the pleadings under Rule 34 (Riano, 2014).
270
TWO INSTANCES WHEN A SPECIFIC DENIAL REQUIRES AN OATH******
1. A denial of an ACTIONABLE DOCUMENT (Sec. 8, Rule 8): the genuineness and due
execution of the instrument shall be deemed admitted, unless the adverse party specifically denies
them under oath, and sets forth what he claims to be the facts
2. A denial of allegations of USURY in a complaint (**not in an Answer) to RECOVER
USURIOUS INTEREST (Sec. 11, Rule 8): they are deemed admitted if not denied under oath.
****hence, the same mentioned in an Answer need not be denied under oath; but if it is a
counterclaim, which is a complaint, it has to be denied under oath.
*Note that these two refer to IMPLIED JUDICIAL ADMISSIONS.
**An answer raising a specific denial based on the above grounds is deemed to be
under oath if it contains verification.
3. How to deny them under oath? The defendant must declare under oath that he did not sign the
document or that it is otherwise false or fabricated.
*The following is not sufficient as a denial: the statement of the answer to the effect that the
instrument was procured by fraudulent representation. On the contrary such a plea is an
admission both of the genuineness and due execution thereof, since it seeks to avoid the instrument upon a
ground not affecting either. [Permanent Savings and Loan Bank v. Mariano Velarde cited in Consolidated Bank
vs. Del Monte motor works 2005]
instrument or document; **Here, a mere specific denial is not enough.271 To deny

the genuineness and due execution of the document, the specific denial must
made under oath.272 The one who has to do the latter is the one who impugns
the genuineness and due execution of the document.273 Examples:
271
How to plead such:**
a. the substance of such instrument or document shall be set forth in the pleading, and
b. 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:
hence, “copied in or attached to the pleading”)
c. NB: A variance in the substance of the document set forth in the pleading and the
document annexed thereto does not warrant the dismissal of the action (Convets, Inc. v. National
Development Co., G.R. No. L-10232, February 28, 1958). However, the contents of the document
annexed are controlling.
3. How to contest such documents [Sec 8] — Rule when the AD is properly pleaded:
a. GR: the genuineness and due execution of the instrument shall be deemed admitted
b. XPN: unless the adverse party
i. ** under oath SPECIFICALLY DENIES them, and
ii. sets forth what he claims to be the facts
c. NB: When does the requirement of an oath not apply? ****
i. when the adverse party does not appear to be a party to the instrument;
ii. when compliance with an order for an inspection of the original instrument is
refused.
272
Bar 2004: In his complaint for foreclosure of mortgage to which was duly attached a copy of the
mortgage deed plaintiff PP alleged inter alia as follows: (1) that defendant DD duly executed the
mortgage deed, copy of which is Annex “A” of the complaint and made an integral part thereof; and
(2) that to prosecute his complaint, plaintiff contracted a lawyer, CC, for a fee of P50,000. In his
answer, the defendant alleged, inter alia, that he had no knowledge of the mortgage deed and he
also denied any liability for plaintiffs contracting with a lawyer for a fee. Does defendant’s answer
as to plaintiff’s allegation no. 1 as well as no. 2 sufficiently raise an issue of fact?
As to plaintiffs allegation no. 1, defendant does not sufficiently raise an issue of fact,
because he cannot allege lack of knowledge of the mortgage deed since he should have personal
knowledge as to whether he signed it or not and *****because he did not deny under oath the
genuineness and due execution of the mortgage deed, which is an actionable document. As to plaintiff’s
allegation no. 2, defendant did not properly deny liability as to plaintiff’s contracting with a lawyer for a
fee. He did not even deny for lack of knowledge. (Sec. 10 of Rule 8)
273
Bar 2000: AA, as shipper and consignee, shipped 100,000 pieces of century eggs. It arrived in
Manila totally damaged. AA filed a complaint against BB Super Lines, owner of the shipping
company, for recovery of damages amounting to P167,899. He attached to the complaint the Bill of
Lading. BB filed a Motion to Dismiss. The MeTC denied the Motion. BB thus filed an Answer
raising the defense that under the Bill of Lading it issued to AA, its liability was limited to
P10,000. At the pre-trial conference, BB defined as one of the issues whether the stipulation limiting its
liability to P10,000 binds AA. AA countered that this was no longer in issue as BB Lines had failed
to deny under oath the Bill of Lading. Which of the parties is correct? BB is correct. *****It is AA
who pleaded the Bill of Lading as an actionable document where the stipulation limits BB’s
liability to AA to P10,000 only. The issue raised by BB does not go against or impugn the
genuineness and due execution of the Bill of Lading as an actionable document pleaded by AA, but
invokes the BINDING EFFECT of said stipulation. *****The oath is not required of BB,
because the issue raised by the latter does not impugn the genuineness and due execution of
the Bill of Lading.
i. EG: foreclosure of REM. Evidence: Deed of REM executed by

defendant: it is the basis of the action, hence, it is an AD. The Answer must
specifically deny the genuineness and due execution of the under oath.
[Rule 8, Section 8]
ii. EG: When a defendant only specifically denies the promissory
note, it is tantamount to a judicial admission. Hence, he can no longer present
a witness to testify that his signature was a forgery. Why? He should have
specifically denied the genuineness and due execution of the promissory note—
an AD—under oath. Without the latter, he deemed to have admitted its
genuineness and due execution.’
iii. Bill of lading is an AD.274
NB: An implied admission under Sec. 8, Rule 8 does not preclude the
adverse party from introducing evidence that the actionable document was not
supported by a consideration. The reason is that such evidence is not
inconsistent with the implied admission of genuineness and due execution. (Acabal
v. Acabal, 31 March 2005)275
274
Q: X sued Y, a shipping co., based on a contract of carriage contained in a bill of lading. The
bill of lading, an actionable document, was pleaded and attached to the complaint. Y, without
alleging anything else, merely assailed the validity of the agreement in the bill of lading for being
contrary to public policy. After presenting evidence, X did not formally offer for admission the bill
of lading. The court ruled for X. On motion for reconsideration. Y alleged that X failed to prove his
action as the bill of lading was not formally offered. Decide. (1996 Bar Question) Answer:
Motion for reconsideration is denied. ******There was no need to formally offer for
admission the bill of lading, because the failure of Y to deny under oath the genuineness and due
execution of the bill of lading which was an actionable document constituted an admission
thereof. (Sec. 8 of Rule 8)
275
BAR 2017: Q: On the basis of an alleged promissory note executed by Harold in favor of Ramon,
the latter filed a complaint for P950,000.00 against the former in the RTC of Davao City. In an
unverified answer, Harold specifically denied the genuineness of the promissory note. During the trial,
Harold sought to offer the testimonies of the following: (1) the testimony of an NBI handwriting
expert to prove the forgery of his signature; and (2) the testimony of a credible witness to prove that if
ever Harold had executed the note in favor of Ramon, the same was not supported by a consideration.
May Ramon validly object to the proposed testimonies? Give a brief explanation of your answer.
SUGGESTED ANSWER: (1) Ramon may validly object to the proposed testimony of an NBI
handwriting expert to prove forgery. Under S8 R8, the genuineness and due execution of an actionable
document is deemed admitted by the adverse party if he fails to specifically deny such genuineness and
due execution. Here the genuineness and due execution of the promissory note, which is an actionable
document, was impliedly admitted by Harold when he failed to deny the same under oath, his answer
being unverified. Hence Harold is precluded from setting up the defense of forgery and thus Ramon
may object to the proposed testimony seeking to prove forgery. (2) Ramon may not validly object to
the proposed testimony showing that the note was not supported by a consideration. The Supreme
Court has held that an implied admission under S8 R8 does not preclude the adverse party from
introducing evidence that the actionable document was not supported by a consideration. The
reason is that such evidence is not inconsistent with the implied admission of genuineness and
due execution. [Acabal v. Acabal, 31 March 2005] The fact that the defense of lack of consideration is
inconsistent with Harold’s defense of forgery is also not objectionable. Under the Rules of Civil
c. NB: Oath is not276 needed to contest actionable documents when:

i. the adverse party does not appear to be a party to the
instrument, as when there is substitution due to death of the original party;
(there is no admission if one specifically denies genuineness of the signature of
another person: EG: son denying the signature of of his deceased father (the
father being the party concerned);277
ii. compliance with an order for an inspection of the original
instrument is refused; hence there is no implied admission when it is merely
specifically denied (no need to do special denial under oath).
iii. Denial under oath is also not required when there is an
order for inspection issued by the court, i.e. inspection order under
Rule 27 of the original document, and such order is refused (Sec. 8,
Rule 8).
iv. It is not also required when the action is not to recover
usurious interest as when usurious interest is being raised as a
defense in a collection case.
c. **When is there no judicial admission even if there were no specific
denials made? When someone does not file a Reply [Rule 6, Sec. 10: “…if a
party does not file such reply, all the new matters alleged in the answer are
deemed controverted”). Hence, there is no need to file a reply to an answer.
But when do you advise the filing of a reply to an answer? When the answer
invokes an actionable document—you have to deny its genuineness and due
execution under oath!
Procedure, a party may set forth two or more statements of defense alternatively or
hypothetically. [S2 R8] (Jurist Review Center, Inc.)
276
Only the requirement of an oath is excused in the following three instances****
a. not a party to the instrument,
b. refusal to comply with an inspection order, and
c. suit not based on recovery of usurious interest.
*****NB: Specific denial must still be pleaded. Hence, even if the party made an
oath, or when an oath is excused but a general denial is made, then it is still deemed
as an admission of the genuineness and due execution of the document.
277
Q: A and B entered into a contract to sell whereby A will deliver to B the parcel of land
upon payment of the purchase price. Upon full payment, A demanded the delivery of the
land. However, before the contract of sale was executed, B died. Hence, A filed an
action for specific performance against S, the son of B presenting the contract to sell. S
made a specific denial of the actionable document but it was not made under oath. Is S
said to have admitted the existence and genuineness of the contract to sell? A: *****No, it
is not required for S to make a specific denial under oath because he is not a party
to the instrument (Sec. 8, Rule 8). It is only when the adverse party is a party to the
written instrument when specific denial under oath is required.
3. If the defendant denied but he did not follow any of the modes of denial
under Rule 8, Sec 10:278 deemed as judicial admissions
a. it must be specific to be a denial; otherwise, it’s an implied judicial
admission;
b. if denial is categorized as negative pregnant (I deny all the paragraphs
vehemently: a general denial is an admission): it's a judicial admission.
STRIKING OUT OF PLEADING OR MATTER CONTAINED

THEREIN [Sec 12]
May the court order any pleading to be stricken out or that any sham or false,
redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom?
YES. How?
1. Upon motion made by a party before responding to a pleading or,
2. Upon motion made by a party within twenty (20) days after the service of
the pleading upon him (if no responsive pleading is permitted by the Rules), or
3. Upon the court's own initiative at any time.
———————————————————————————————
3.5.5. Effect of failure to plead [Rule IX]
a) Failure to plead defenses and objections [Sec 1]

1. GR: Defenses not pleaded in a motion to dismiss or in the answer are
DEEMED WAIVED.
2. ******XPNs: These defenses may be raised at any stage of the proceedings
even for the first time on appeal: [Jn-Litis-RJ-prescription]
a. Lack of jurisdiction over the subject matter; NB: **It may however, be
barred by laches.
b. Litis pendentia;
c. Res judicata (the action is barred by a prior judgment); and
d. Statute of limitations (prescription; the action is barred by statute of
limitations) [Sec. 1, Rule 9].
3. NB: The rule is the same under the “omnibus motion rule”, infra.
b) Failure to plead a compulsory counterclaim and cross-claim [Sec 2]

1. GR: A compulsory counterclaim or cross-claim not set up in the answer is
DEEMED BARRED (Sec. 2, Rule 9).
2. XPN: A counterclaim or a cross-claim which either matured or was acquired
278
[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.]
by a party AFTER serving his pleading may, with the permission of the court,
be presented as a counterclaim or a cross-claim by supplemental pleading before
judgment (Sec. 9, Rule 11).
3. NB: **The following counterclaims or cross-claims may be set up by
AMENDMENT before judgment (Leave of court is necessary) [Sec. 10, Rule
11]—if omitted through
a. oversight,
b. inadvertence, or
c. excusable neglect or
d. when justice requires
———————————————————————————————
3.5.6. Default [Sec 3, Rule 9]
KINDS OF DEFAULT
1. In actions in rem: general order of default. There are no
defendants, so notice is made to the public that all oppositors have to
come forward and object. Otherwise, their claims are forever barred.
EG: usually in actions for certificates for public convenience.
2. Failure to attend pre-trial:279 used to be called “as in default”280 in
the 1964 Rules of Court (no longer in the present rules, but old lawyers
279
When may a party be declared in default? (2%) SUGGESTED ANSWER: A party may be declared
in default when he fails to answer within the time allowed therefor, and upon motion of the
claiming party with notice to the defending party, and proof of such failure. (Sec. 3, Rule 9 of the
1997 Rules)
[] Q: May a party who is present at the pre-trial of a civil case and assisted by counsel still be
declared non-suited or as in default? Explain. (1989 Bar Question) Answer: *****No, because the
only ground to declare a party non-suited or considered as in default at the pre-trial is failure to
appear thereat.
Other Acceptable Answers:*****
1. A party who refuses to obey an order of the court under the rules on depositions and
discovery may be declared non-suited or as in default. (Sec. 3(c) of Rule 29)
2. A plaintiff who fails to prosecute may be declared non-suited or as in default.(Sec.3 of
Rule 17)
3. Under Circular 1-89 on mandatory continuous trial, failure to file a pre-trial brief is a
ground to be declared non-suited or as in default.
280
Q: Jojie filed with the Regional Trial Court of Laguna a complaint for damages against Joe.
During the pre-trial, Jojie [TOM: should be Joe] and her counsel failed to appear despite notice to
both of them. Upon oral motion of Jojie, Joe was declared as in default and Jojie was allowed to
present her evidence ex parte. Thereafter, the court rendered its Decision in favor of Jojie. Joe hired
Jose as his counsel. What are the remedies available to him? Explain. 5% (2006 Bar Question)
SUGGESTED ANSWER: ******Under the present rule, there can be no judgment by
default by mere failure of the defendant to appear in the pre-trial. The only consequence of
such failure to appear is that the plaintiff can present his evidence ex parte and the court may
render judgment on the basis thereof (Sec. 5, Rule 18 of the 1997 Revised Rules of Civil
Procedure). The following are the remedies available to Joe: 1. motion for reconsideration; 2. motion
still use the phrase).281 What it really is: when the defendant fails to
attend the pre-trial, the plaintiff can just present evidence ex parte
(hence, it’s not really the default in this section because pre-trial
presupposes that an answer has already been filed)
3. Failure to file an answer (this section; Sec 3, R9).282 When is one
considered in default (under this section)?
a. The court will declare the defending party in default: when he
fails to answer within the time allowed therefor, and
for new trial; 3. appeal; 4. petition for relief from a judgment of default; 5. annulment of judgment
under Rule 47; and 6. certiorari under Rule. 65.
281
Q: At a pre-trial hearing in the Regional Trial Court of which the plaintiff and the defendant, as well
as their respective attorneys of record were duly notified, only plaintiff’s attorney appeared but
without the requisite power of attorney authorizing him to fully and effectively represent plaintiff at
the pre-trial hearing. Because of the absence of the defendant and his counsel, plaintiff’s
attorney moved in open court to have the defendant declared as in default. Under the
circumstances, what should the court do? Discuss fully. (1992 Bar Question)
Suggested Answer: The court should deny the motion to have the defendant declared as in
default and dismiss the action on the ground that only the plaintiff’s attorney appeared but without
the requisite power of attorney to fully and effectively represent plaintiff at the pre-trial hearing.
[Home Insurance Company vs. U.S. Lines Co., 21 SCRA 865)
Another Acceptable Answer: Considering the fact that plaintiff’s attorney appeared, the court
should make the dismissal without prejudice, or reset the pre-trial hearing with notice to the
parties.
[] Q: May a party who is present at the pre-trial of a civil case and assisted by counsel still be
declared non-suited or as in default? Explain. (1989 Bar Question) Answer: No, because the only
ground to declare a party non-suited or considered as in default at the pre-trial is failure to
appear thereat.
Other Acceptable Answers: 1. A party who refuses to obey an order of the court under the
rules on depositions and discovery may be declared non-suited or as in default. (Sec. 3(c) of Rule 29); 2.
A plaintiff who fails to prosecute may be declared non-suited or as in default. (Sec. 3 of Rule 17); 3.
Under Circular 1-89 on mandatory continuous trial, failure to file a pre-trial brief is a ground to be
declared non-suited or as in default.
282
When a declaration of default is proper
1. When can the court declare the defending party in default?
i. If the defending party fails to answer within the time allowed therefor;
ii. upon motion of the claiming party
iii. with notice to the defending party, and
iv. proof of such failure.
2. GR: Thereupon, **the court shall proceed to render judgment granting the claimant such relief as
his pleading may warrant;
3. XPN: unless the court in its discretion requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
4. NB: **A party may be declared in default when he fails to answer (Hence, a plaintiff will never be
declared in default) within the time allowed therefor, and upon motion of the claiming party with
notice to the defending party, and proof of such failure (Sec. 3, Rule 9). **The plaintiff has to state that
the time to file an answer has lapsed and the defendant failed to file and serve an answer.
(i) upon motion283 of the claiming party,284 and

(ii) with notice to the defending party;
(iii) and proof of such failure.
b. **Generally, an order of default can be made only upon motion
of the claiming party. But see Santos v PNOC (2008), where even
without motion, the Court still allowed the default because the party
could not be found anyway.
Effect of an order of default (Bar 1999)285

1. The party declared in default loses his standing in court and prevents him
from taking part in the trial (Sec. 3(a), Rule 9); **The Court may ask the plaintiff
to present evidence, or it renders judgement based on the pleadings.
2. While the defendant can no longer286 take part in the trial,287 he is nevertheless
entitled to notices of subsequent proceedings (Sec. 3(a), Rule 9). It is submitted
that he **may participate in the trial, not as a party but as a witness;288 and
283
*****Hence, the court has no authority to motu proprio declare the defendant in default. A
motion to declare the defending party must be filed by the claiming party before a declaration of
default is made by the court. The rule is clear, Sec. 3 of Rule 9 provides “upon motion of the
claiming party” (Riano, 2014). EG: even if the defendant has not answered for 45 days!
284
In a complaint filed by the plaintiff, what is the effect of the defendant’s failure to file an answer
within the reglementary period? (2013 BAR)
(A) The court is allowed to render judgment motu proprio in favor of the plaintiff.
(B) The court motu proprio may declare the defendant in default, but only after due notice to the
defendant.
(C) The court may declare the defendant in default but only upon motion of the plaintiff and with
notice to the defendant.
(D) The court may declare the defendant in default but only upon motion of the plaintiff, with
notice to the defendant, and upon presentation of proof of the defendant’s failure to answer.
(E) The above choices are all inaccurate.
285
What is the effect of an Order of Default? (2%) xxx SUGGESTED ANSWER:
*****The effect of an Order of Default is that the court may 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 (Id.) The party in default cannot take part in the trial but
shall be entitled to notice of subsequent proceedings. (Sec. 3[A]. Rule 9 of the 1997 Rules)
286
Can the defendant make a move to regain his standing in court? YES.
287
Being declared in default does not constitute a waiver of all rights. However, the following right is
considered waived: (2012 BAR)
a. be cited and called to testify as a witness
b. file a motion for new trial
c. participate in deposition taking of witnesses of adverse party
d. file a petition for certiorari
288
Q: Jose, Lito and Luis executed a promissory note in favor of Teresita Comparza which reads:
“For value received we promise jointly and severally to pay Teresita Comparza the sum of P300.000.00
on or before 31 December 1994." All three signed the note. Despite demands after due date no
payment was made on the note prompting Teresita to sue the three promissors. Summonses together
with copies of the complaint were served on all of them but only Lito answered. Upon Teresita’s
motion, Jose and Luis were declared in default.
3. A declaration of default is not an admission of the truth or the validity of

the plaintiff’s claims (Monarch Insurance v. CA, G.R. No. 92735, June 8, 2000).
Relief from an order of default

1. May the party declared in default obtain relief from such order? YES.
2. When? at any time after notice289 thereof and before judgment;
3. How?******
a. by filing a motion under oath to set aside the order of default
b. upon proper showing that his failure to answer was due to FAME: fraud,
accident, mistake or excusable negligence and
c. that he has a meritorious defense.290
A. Against whom and upon what basis should the court try the case considering that only Lito
of the three defendants filed an answer and a default order was issued against Jose and Luis? Discuss
fully: *****Since the complaint states a common cause of action against the three defendants, the
court shall try the case against all upon the answer filed by Lito and render judgment upon the
evidence presented. (Sec. 4, Rule 18) In this case, the answer of Lito inures to the benefit of Jose
and Luis, unless the defense of Lito is personal to him alone.
B. Considering that a defaulted defendant cannot participate in the trial, can Lito present
Luis on the witness stand to testify after the latter was defaulted? Discuss fully. There is no provision
in the Rules disqualifying parties declared in default from taking the witness stand for non-disqualified
parties. A party declared in default loses his standing in court, but this must be understood to
mean only the forfeiture of one’s rights as a party litigant. He is not disqualified to be a witness
or a deponent in a case. (Cavili vs. Florendo, 154 SCRA 610)
C. Suppose Lito dies and the case is dismissed as against him, what is the effect of his
answer as far as his solidary co-debtors Jose and Luis are concerned? Discuss fully. (1995 Bar
Question) Answer: If Lito dies after he has presented evidence, the same inures to the benefit of Jose
and Luis. ******But if Lito dies before he has presented evidence, Jose and Luis cannot present
such evidence.
289
For failure to seasonably file his Answer despite due notice, A was declared in default in a case
instituted against him by B. The following day, A’s mistress who is working as a clerk in the sala of
the Judge before whom his case is pending, informed him of the declaration of default. On the
same day, A presented a motion under oath to set aside the order of default on the ground that
his failure to answer was due to fraud and he has a meritorious defense. Thereafter, he went
abroad. After his return a week later, with the case still undecided, he received the order declaring
him in default. The motion to set aside default was opposed by B on the ground that it was filed
before A received notice of his having been declared in default, citing the rule that the motion to set
aside may be made at anytime after notice but before judgment. Resolve the Motion. (2%)
SUGGESTED ANSWER: Assuming that the motion to set aside complies with the other
requirements of the rule, it should be granted although such a motion may be made after notice but
before judgment (Sec. 3[B] of Rule 9), with more reason may it be filed after discovery even
before receipt of the order of default.
290
[] The term MERITORIOUS DEFENSE implies that the applicant has the burden of proving
such a defense in order to have the judgment set aside.—When a party files a motion to lift order
of default, she must also show that she has a meritorious defense or that something would be
gained by having the order of default set aside. The term meritorious defense **implies that the
APPLICANT HAS THE BURDEN of proving such a defense in order to have the judgment set
aside. The cases usually do not require such a strong showing. The test employed appears to be essentially the
same as used in considering summary judgment, that is, whether there is enough evidence to present an
issue for submission to the trier of fact, or a showing that on the undisputed facts it is not clear that
*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.
Effect of a partial default

1. When does partial default happen? 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; (Sec. 3, Rule 9).
2. What will the court do in this case? The court shall
a. try the case against all291 upon the answers thus filed and
b. render judgment upon the evidence presented.
Extent of relief to be awarded

1. A judgment rendered against a party in default shall
a. not exceed the amount or be different in kind from that prayed for
b. **nor award unliquidated damages.
2. However, **if the court orders the submission of evidence, unliquidated
damages may be awarded based on such.
Actions where default is not allowed******

1. If the defending party fails to answer in the following actions, 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
order to see to it that the evidence submitted is not fabricated
a. annulment of marriage or
b. declaration of nullity of marriage or for
c. legal separation
2. Additional actions where default is not allowed:****
a. In special civil actions of certiorari, prohibition and mandamus where
comment instead of an answer is required to be filed.
b. A motion to declare defendant in default is a prohibited pleading in:
the judgment is warranted as a matter of law. The defendant must show that she has a meritorious
defense otherwise the grant of her motion will prove to be a useless exercise. Thus, her motion must be
ACCOMPANIED by a statement of the evidence which she intends to present if the motion is granted and
which is such as to warrant a REASONABLE BELIEF that the result of the case would probably be
otherwise if a new trial is granted. Velayo-Fong vs. Velayo, December 6, 2006
291
Bar 2011: Gerry sued XYZ Bus Co, and Rico, its bus driver, for injuries Gerry suffered when
their bus ran off the road and hit him. Of the two defendants, only XYZ Bus Co. filed an answer,
alleging that its bus ran off the road because one of its wheels got caught in an open manhole, causing
the bus to swerve without the driver’s fault. Someone had stolen the manhole cover and the road gave
no warning of the danger it posed. On Gerry’s motion and over the objection of XYZ Bus Co., the
court declared Rico, the bus driver in default and rendered judgment ordering him to pay
P50,000 in damages to Gerry. Did the court act correctly? A: No, the court did not act correctly
since **the court should have tried the case against both defendants upon the bus company’s
answer.
i. Summary Procedure;292 EG: ejectment cases (unlawful detainer

and forcible entry cases)
ii. Small Claims and
iii. Environmental Cases.
[] Since MTD is a prohibited pleading, what is the remedy of the
plaintiff? *****Ask the Court to render judgment based on the pleadings, not
to declare the defendant in default.
REMEDIES293 FROM AN ORDER OF DEFAULT294******

After notice of order and Motion under oath to set aside the order of default on the grounds
before judgment of FAME and he has meritorious defense
*If denied: move for reconsideration; Grounds: FAME
292
A defendant who fails to file a timely Answer or responsive pleading will not be declared in
default in: (2012 BAR)
a. probate proceedings where the estate is valued at P100,000;
b. forcible entry cases;
c. collection case not exceeding P100,000;
d. violation of rental law.
293
Q: What are the available remedies of a party declared in default: (1998 Bar Question)******
SUGGESTED ANSWER: The available remedies of a party declared in default are as follows:
A. Before the rendition of judgment (a) he may file a motion under oath to set aside the
order of default on the grounds of fraud, accident, mistake or excusable negligence and that he
has a meritorious defense (Sec. 3[b), Rule 9, 1997 Rules of Civil Procedure); and if it is denied, he may
move to reconsider, and if reconsideration is denied, he may file the special civil action of certiorari for
grave abuse of discretion tantamount to lack or excess of the lower court's jurisdiction. (Sec. 1, Rule
65, Rules of Court); or (b) he may file a petition for certiorari if he has been illegally declared in
default, e.g. during the pendency of his motion to dismiss or before the expiration of the time to answer. (Matute us.
Court of Appeals, 26 SCRA768; Acosta-Ofalia vs. Sundiam, 85 SCRA 412.)
B. After judgment but before its finality, he may file a motion for new trial on the grounds of
fraud, accident, mistake, excusable negligence, or a motion for reconsideration on the ground
of excessive damages, insufficient evidence or the decision or final order being contrary to law
(See. 2, Rule 37, 1997 Rules of Civil Procedure); and thereafter. If the motion is denied, appeal is available
under Rules 40 or 41, whichever is applicable.
C. After finality of the Judgment, there are three ways to assail the Judgment, which are: (a) a
petition for relief under Rule 38 on the grounds of fraud, accident, mistake or excusable
negligence; (b) annulment of judgment under Rule 47 for extrinsic fraud or lack of Jurisdiction;
or (c) certiorari if the judgment Is void on Its face or by the judicial record. (Balangcad us.
Justices qf the Court of Appeals, G.R. No. 83888, February 12, 1992, 206 SCRA 171 and other cases).
294
Q: Alfie Bravo filed with the Regional Trial Court of Caloocan, a complaint for a sum of money
against Charlie Delta. The claim is for Php1.5Million. The complaint alleges that Charlie borrowed the
amount from Alfie and duly executed a promissory note as evidence of the loan. Charlie’s office
secretary, Esther, received the summons at Charlie’s office. Charlie failed to file an answer within
the required period, and Alfie moved to declare Charlie in default and to be allowed to present
evidence ex parte. Ten days later, Charlie filed his verified answer, raising the defense of full payment
with interest.
a) Was there proper and valid service of summons on Charlie? (2013 BAR) A: NO. There is
no showing that earnest efforts were exerted to personally serve the summons on the
defendant before substituted service was resorted to; the service of sumoons was improper.
*If denied: Petition for certiorari under Rule 65
After judgment before 1. New Trial (Rule 37) due to FAME; 2. MR due to excessive
judgment becomes final and damages, insufficient evidence or the decision or final order
executory being contrary to law; 3. Appeal (Rule 40 or 41)
After judgment has become 1. Petition for Relief from judgment (Rule 38) due to FAME; 2.
final and executory Annulment of Judgment (Rule 47) due to extrinsic fraud or lack of
jurisdiction; 3. certiorari: judgment is void on its face or by the
judicial record
Defendant has been He may avail of the SCA of certiorari under Rule 65. The court can be considered
wrongly or improvidently to have acted with GADALEJ and when the lack of jurisdiction is patent on the
declared in default face of the judgment or from the judicial records (Balangcad v. CA 1992)
Bar areas:
1. Before judgment, a motion to set aside the order of default has to mention
which of the FAME grounds is applicable and that he has a meritorious defense.
It has to be done under oath.295
*****In an action strictly in personam like a complaint for sum of money, personal service on the
defendant is the preferred mode of service, that is, by handing a copy of the summons to the
defendant in person. If defendant, for excusable reasons, cannot be served with summons within a
reasonable period, then substituted service can be resorted to (Manotoc v. Court of Appeals, G.R. No.
130974, August 16, 2006). Otherwise stated, it is only when the defendant cannot be served
personally within a reasonable time that a substituted service may be made. Impossibility of
prompt service should be shown by stating the efforts made to find the defendant personally and
the fact that such efforts failed. This statement should be made in the proof of service (Galura v.
Math-Agro Corporation, G.R. No. 167230, August 14, 2009). Since there was no prior attempt to
serve the summons in person, the substituted service to Charlie’s secretary is invalid.
b) If declared in default, what can Charlie do to obtain relief? (2013 BAR) A: If Charlie is
declared in default, he has the following remedies to wit:
1. he may, at any time after discovery of the default but before judgment, file a motion,
under oath, to set aside the order of default on the ground that his failure to answer was due to
fraud, accident, mistake or excusable neglect, and that he has a meritorious defense;
2. if judgment has already been rendered when he discovered the default, but before the same
has become final and executory, he may file a motion for new trial under Section 1(a) of Rule 37;
3. if he discovered the default after the judgment has become final and executory, he may file
a petition for relief under Section 2 of Rule 38 [or petition to annul the judgment under Rule 47] or
petition for certiorari under Rule 65]; and
4. he may also appeal from the judgment rendered against him as contrary to the evidence or
to the law, even if no petition to set aside the order of default has been presented by him. (B.D.
Longspan Builders, Inc. v. R.S. Ampeloquio Realty Development, G.R. No. 169919, September 11, 2009)
295
Q: Mario was declared in default but before judgment was rendered, he decided to file a motion to
set aside the order of default.
A. What should Mario state in his motion in order to Justify the setting aside of the order of
default? (3%): In order to justify the setting aside of the order of default, Mario should state in his
motion that his failure to answer was due to fraud, accident, mistake or excusable negligence and that
he has a meritorious defense. [Sec. 3(b) of Rule9,1997 Rules of Civil Procedure).
2. A defendant declared in default may, after judgment but before finality, file an
M/R.296 He cannot file a petition for relief from judgment unless the decision has
become final and executory.297
3. The remedies in the table “after the judgment has become final and executory”
may apply to other cases.298
———————————————————————————————
3.5.7. Filing and service of pleadings [Rule 13]

1. Papers required to be FILED with the Court and SERVED upon the parties
affected:
a. Judgment
b. Resolution
c. Order
d. Pleading subsequent to the complaint
e. Written motion
f. Notice
g. Appearance
h. Demand
i. Offer of judgment or
j. Similar papers (Sec. 4, Rule 13).
2. Papers required to be FILED
a. PLEADINGS
B. In what form should such motion be? (2%) (2001 Bar Question) The motion should be
under oath. (Id.)
296
A defendant declared in default may, after judgment but before finality, file a: (2012 BAR)
a. PetitionforRelieffromJudgment;
b. PetitionforCertiorari;
c. Motion for Reconsideration;
d. MotiontoSetAsideOrderofDefault.
297
Q: True or False. A defendant who has been declared in default can avail of a petition for relief
from the judgment subsequently rendered in the case. (3%) (2007 Bar Question)
SUGGESTED ANSWER: FALSE. The remedy of petition for relief from judgment is
available only when the judgment or order in question is already final and executory, i.e., no
longer appealable. *****As an extraordinary remedy, a petition for relief from judgment may be
availed only in exceptional cases where no other remedy is available.
298
Q: May a judgment which has become final and executory still be questioned, attacked or set aside?
If so, how? If not, why not? Discuss fully. (1995 Bar Question) Answer: There are three ways by which
a final and executory judgment may be attacked or set aside, namely:******
a) By petition for relief from judgment under Rule 38 on the grounds of fraud, accident,
mistake or excusable negligence within sixty days from learning of the Judgment and not more
than six months from its entry;
b) By direct action to annul or enjoin the enforcement of the judgment when the defect
is not apparent on its face or from the recitals contained in the Judgment;
c) By direct action, such as certiorari, or by a collateral attack against the judgment which is
void on its face or when the nullity of the Judgment is apparent by virtue of its own recitals.
[Macabingkil vs. People’s Homesite and Housing Corporation, 72 SCRA 326)
b. Appearances
c. Motions
d. Notices
e. Orders
f. Judgments
g. All other papers (Sec. 3, Rule 13)
3. Papers required to be SERVED to the adverse party
a. PLEADINGS
b. MOTIONS
c. NOTICES
d. ORDERS
e. JUDGMENTS
f. Other papers (Sec. 5, Rule 13)
a) Payment of docket fees

*cf. Notes on JN over the parties
b) Filing versus service of pleadings [Sec 2]

1. FILING: the act of presenting the pleading or other paper to the clerk of
court.299
2. SERVICE: the act of providing a party with a copy of the pleading or paper
concerned. Rule when any party has appeared by counsel
a. GR: service upon him shall be made upon his counsel or one of them;
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.
b. **XPN: unless service upon the party himself is ordered by the
court.
RESPONSIVE PLEADING WHEN TO FILE

Answer to the (original) complaint GR: within fifteen (15) days after service of summons; XPN:
unless a different period is fixed by the court
Defendant is a foreign private Within 15 days after service of summons (Sec. 6, in relation to
juridical entity and has a resident Sec. 5(a), Rule 2, A.M. NO. 00-8-10-SC 2000-11-21)
agent (RA)
299
X filed a complaint with the RTC through ABC, a private letter forwarding agency. The date of
filing of the complaint shall be: (2012 BAR)
a. thedatestampedbyABContheenvelopecontainingthecomplaint.
b. the date of receipt by the Clerk of Court.
c. the date indicated by the receiving clerk of ABC.
d. thedatewhenthecaseisofficiallyraffled.

Defendant is a foreign private Within 15 days after service of summons to said agent or
juridical entity and has no RA but officer (Sec. 6, in relation to Sec. 5(b), Rule 2, A.M. NO. 00-8-
has an agent/officer in PH 10-SC 2000-11-21)
Defendant foreign private juridical within thirty (30) days after receipt of summons by such
entity and has no RA nor A/O; entity (by the home office of the foreign private entity)
(Summons to be served to SEC which will
then send a copy by registered mail within
10 days to the home office of the foreign
private corporation)
Answer to amended complaint (amended within fifteen (15) days after being served with a copy thereof
counterclaim, amended cross-claim,
amended third (fourth, etc.)—party
complaint, and amended complaint-in-
intervention) filed by plaintiff as a
matter of right
Answer to amended complaint (amended within ten (l0) days from notice of the order admitting the
counterclaim, amended cross-claim, same. An answer earlier filed may serve as the answer to the
amended third (fourth, etc.)—party amended complaint if no new answer is filed
complaint, and amended complaint-in-
intervention) filed by plaintiff where
its filing is not a matter of right
Answer to counterclaim or cross-claim within ten (10) days from service
Answer to third (fourth, etc.)-party same rule as the answer to the complaint; Like an original
complaint defendant – 15, 30, 60 days as the case may be (Sec. 5; Rule
11)
Reply filed within ten (10) days from service of the pleading
responded to
Answer to supplemental complaint GR: within ten (10) days from notice of the order admitting
the same,
XPN: unless a different period is fixed by the court. NB: The
answer to the complaint shall serve as the answer to the
supplemental complaint if no new or supplemental answer is
filed.
Existing counterclaim or cross-claim A compulsory counterclaim or a cross-claim that a defending
party has at the time he files his answer shall be contained
therein
Counterclaim or cross-claim arising after it may, with the permission of the court, be presented as a
answer; it either matured or was acquired counterclaim or a cross-claim by supplemental pleading before
by a party after serving his pleading judgment.
Omitted counterclaim or cross-claim; When he may, by leave of court, set up the counterclaim or cross-
a pleader fails to set up a counterclaim or a claim by amendment before judgment.
cross-claim through oversight, inadvertence,
or excusable neglect, or when justice
requires

Extension of time to plead. Upon motion and on such terms as may be just, the court may
extend the time to plead provided in these Rules. It may also,
upon like terms, allow an answer or other pleading to be filed
after the time fixed by these Rules.
Service of summons by publication Within the time specified in the order which shall not be
less than 60 days after notice (Sec. 15, Rule 14)
Non-resident defendant to whom Not be less than 60 days after notice (Sec. 15, Rule 14)
extraterritorial service of summons
is made
c) Periods of filing of pleadings [Rule 11]
**Upon motion and on such terms as may be just, the court may extend the
time to plead provided in these Rules. The court may also, upon like terms, allow
an answer or other pleading to be filed after the time fixed by these Rules (Sec. 11,
Rule 11).
d) Manner of filing [Sec 3]

1. 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:
a. By presenting the original copies thereof, plainly indicated as such,
PERSONALLY to the clerk of court or (here, the clerk of court shall endorse
on the pleading the date and hour of filing);
b. by sending them by REGISTERED MAIL (here, 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)
**Filing by mail should be through the registry service which is
made by deposit of the pleading in the post office, and not through other means of
transmission.
2. Which papers are required to be filed and served [Sec 4]? Every judgment,
resolution, order, pleading subsequent to the complaint, written motion,
notice, appearance, demand, offer of judgment or similar papers shall be
a. filed with the court, and
b. served upon the parties affected.
e) Modes of service [Sec 5]

1. PERSONAL SERVICE300 (Sec. 6, Rule 13); how is the service of papers
300
Which of the following is NOT REGARDED as a sufficient proof of personal service of
pleadings? (2011 BAR)
made?
a. By delivering personally a copy to the party or his counsel, or
b. by leaving it in his office with his clerk or with a person having charge
thereof.
c. If no person is found in his office, or his office is not known, or he has no office:
i. by leaving the copy, between the hours of eight in the morning
and six in the evening,
ii. at the party's or counsel's residence, if known,
iii. with a person of sufficient age and discretion then residing therein
d. When is personal service completed? upon actual delivery.
2. Service by REGISTERED mail (Sec. 7, Rule 13); how made?
a. Service by REGISTERED mail shall be made
i. by depositing the copy in the post office in a sealed envelope,
ii. plainly addressed to the party or his counsel at his office, if known,
otherwise at his residence, if known,
iii. with postage fully prepaid, and
iv. with instructions to the postmaster to return the mail to the
sender after ten (10) days if undelivered.
b. If no registry service is available in the locality of either the senders or the
addressee, service may be done by ORDINARY mail. (5a; Bar Matter No. 803,
17 February 1998)
c. When are the following services completed?
i. Service by registered mail: 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.
ii. Service by ordinary mail: upon the expiration of ten (10) days
after mailing, unless the court otherwise provides.
3. SUBSTITUTED service (Sec. 8, Rule 13);
a. Prerequisite: service of pleadings, motions, notices, resolutions, orders
and other papers cannot be made under the two previous options;
b. Why? the office and place of residence of the party or his counsel being
unknown.
c. How? (substituted) service may be made301*****
(A) Official return of the server.

(B) Registered mail receipt.
(C) Written admission of the party served.
(D) Affidavit of the server with a statement of the date, place and manner of service.
301
Atty. X fails to serve personally a copy of his motion to Atty. Y because the office and residence
of Atty. Y and the latter's client changed and no forwarding addresses were given. Atty. X's remedy is
to: (2012 BAR)
a. Servebyregisteredmail;
b. Servebypublication;
c. Deliver copy of the motion to the clerk of court with proof of failure to serve;
d. Certifyinthemotionthatpersonalserviceandthroughmailwasimpossible.
i. by delivering the copy to the clerk of court,

ii. with proof of failure of both personal service and service by
mail.
d. When is the service deemed completed? at the time of such delivery.
4. Summary of the Rules: ******

a. Service of pleadings motions, notices, orders, judgments and other papers
shall be made either PERSONALLY OR BY MAIL. **Service and filing by mail
may be done only when personal service and filing is not practicable.
b. Note that substituted service is only done if the first two could not
be done.
5. Service of judgments, final orders or resolutions [Sec 9]
a. How are judgments, final orders or resolutions served? Either
i. personally or
ii. by registered mail.
iii. by publication: When a party summoned by publication has
failed to appear in the action.
b. Who pays for it? It’s at the expense of the prevailing party.
5. PRIORITIES in modes of service and filing [Sec 11]
*GR: Whenever practicable, the service and filing shall be done personally.
**XPN: 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 (Sec. 11, Rule 13).
*NB: A violation of this rule may be **cause to consider the paper as not
filed (Ibid.). The explanation must be SATISFACTORY AND ACCEPTABLE
to the court. Otherwise, the court has the discretion to consider the pleading, etc.,
as not having been filed (Solar Team Enterprises, Inc. v. Judge Ricafort, 35 Phil.
404).
6. When service is DEEMED COMPLETE:
a. Personal service – upon actual delivery;
b. Service by ordinary mail – upon expiration of 10 days after mailing,
unless the court otherwise provides;
c. Service by registered mail – upon actual receipt by the addressee, or 5
days from the date he received the FIRST NOTICE of the postmaster,
whichever date is earlier (Sec. 10, Rule 13);
d. Substituted service – at the time of such delivery (Sec. 8, Rule 13).
Proof of filing [Sec 12] and service [Sec 13]

1. Proof of filing:
a. GR: The filing of a pleading or paper shall be proved by its existence in
the record of the case.
b. XPN: If it is not in the record:
i. but is claimed to have been filed personally: the filing shall be proved by
the written or stamped acknowledgment of its filing by the clerk of court on a copy
of the same;
ii. if filed by registered mail, by the registry receipt and by the affidavit
of the person who did the mailing, containing a full statement of: (a) the date and
place of depositing the mail in the post office in a sealed envelope addressed to the
court, (b) with postage fully prepaid, and (b) with instructions to the postmaster to
return the mail to the sender after ten (10) days if not delivered.
2. Proof of Service.
a. Proof of personal service shall consist of:
i. a written admission of the party served, or
ii. the official return of the server, or
iii. the affidavit of the party serving, containing a full statement of the
date, place and manner of service.
b. 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 (supra).
i. Affidavit of mailer showing compliance of Sec. 7, Rule 13; and
ii. Registry receipt issued by the mailing officer (Sec. 13, Rule 13).
c. If service is made by registered mail, proof shall be made by
i. such affidavit and
ii. the registry receipt issued by the mailing office.
(a) The registry return card shall be filed immediately upon
its receipt by the sender,
(b) or in lieu thereof the unclaimed letter together with the
certified or sworn copy of the notice given by the postmaster to the addressee.
NOTICE LIS PENDENS [Sec 14]

1. Applicability: In an action affecting the title or the right of possession of real
property;
2. Who does it? the plaintiff and the defendant (p/d; when affirmative relief is
claimed in his answer).
3. How? The p/d may record in the office of the registry of deeds of the province in
which the property is situated notice of the pendency of the action. Said notice
shall contain:
a. the names of the parties and
b. the object of the action or defense, and
c. a description of the property in that province affected thereby.
4. When shall a purchaser, or encumbrancer of the property affected thereby,
be deemed to have constructive notice of the pendency of the action?
a. Only from the time of filing such notice for record shall and
b. Only of its pendency against the parties designated by their real names.
5. How is the notice of lis pendens cancelled? **Only upon order of the court,
after proper showing
a. that the notice is for the purpose of molesting the adverse party, or
b. that it is not necessary to protect the rights of the party who caused it
to be recorded.
———————————————————————————————
3.5.8. Amendment [Rule X]
ON AMENDMENTS
1. Can pleadings be amended? YES.
2. How? [Sec 1]
a. by adding or striking out an allegation or the name of any party, or
b. by correcting a mistake in the name of a party or a mistaken or inadequate
allegation or description in any other respect.
3. Purpose of amendment: so that the actual merits of the controversy may be
speedily determined, without regard to technicalities, and in the most expeditious
and inexpensive manner.
4. LIMITATION on amendment: Rosario vs. Carandang; Campos Rueda Corp.
vs Bautista (1962): a complaint can not be amended so as to confer
jurisdiction on the court in which it is filed, if the cause of action originally set
forth was not within the court's jurisdiction." Hence, if the purpose of the
amendment is to make his case fall within the jurisdiction of the court, it has to be
denied.**
a) Amendment as a matter of right [Sec 2]

1. When is amendment a matter of right?*****
a. any time before302 a responsive pleading is SERVED or,
b. in the case of a reply, at any time within ten (10) days after it is served.
**Before the filing of any responsive pleading a party has the ABSOLUTE
RIGHT to amend his pleading, regardless of whether a new cause of action
or change in theory is introduced (i.e. substantial amendment). Bautista vs
Maya-Maya Cottages, Inc.
302
Bar 2008: Even though an amendment of the complaint before answer is a matter of right,
******lack of a cause of action at the commencement of a suit is not cured by the accrual of a
cause of action subsequent thereto, such that an amendment setting up the after-accrued cause of
action is not allowed (Swagman Hotels And Travel, Inc. v. Court of Appeals, 455 SCRA 175 [2005]).
[] Would your answer be different had Arturo filed instead a supplemental complaint stating
that the debt became due after the filing of the original complaint (2%) (2008 Bar Question)
SUGGESTED ANSWER: No, because a complaint whose cause of action has not accrued yet
when filed, does not gain any standing in court such that no amendment, whether by amended
or supplemental pleading, can cure the deficiency. The subsequent cause of action that arose may
only be subject of a different suit but cannot be pleaded as a supplement to the complaint where
no cause of action exists. Simply put, no amended or supplemental complaint is allowed
(Swagman Hotels And Travel, Inc. v. Court of Appeals, 455 SCRA 175 [2005]).
2. How may times? **A party may amend his pleading ONCE as a matter of right
3. *****Note that a motion to dismiss (MTD) is NOT A RESPONSIVE
PLEADING. Hence, even if the court dismissed the case by virtue of a MTD,
the plaintiff can still amend his complaint, as long as the dismissal is not yet
final303 (within the reglementary period).
b) Amendments by leave of court [Sec 3]

1. Rule on amendments:
a. GR: substantial amendments may be made only upon leave of court.
b. XPN: Except when the amendment is a matter of right [Sec 2]
******Amendment that confers jurisdiction over the court is allowed
provided no responsive pleading has yet been filed. In such case, the court
will just receive the amended pleading and will not act since no discretion is
involved, it being an amendment as a matter of right. However, once a responsive
pleading has already been filed, the amendment can no longer be allowed since the
court will need to exercise its discretion and will already be acting without
jurisdiction (Riano, 2014). NB: a motion to dismiss (MTD) is not a responsive
pleading.304
2. Bar 1994: Amendments by leave of court
a. If the amendment is substantial (Sec. 3, Rule 10);
b. A responsive pleading had already been served (Siasoco v. CA, G.R.
303
*It is settled that a motion to dismiss is not the responsive pleading contemplated by the Rule.
It follows then that the plaintiff, may file an amended complaint even after the original
complaint was ordered dismissed, provided that the order of dismissal is not yet final. Bautista
vs Maya-Maya Cottages, Inc.
304
Q: On May 12. 2005, the plaintiff filed a complaint in the Regional Trial Court of Quezon City
for the collection of P250,000.00. The defendant filed a motion to dismiss the complaint on the
ground that the court had no jurisdiction over the action since the claimed amount of P250.000.00 is
within the exclusive jurisdiction of the Metropolitan Trial Court of Quezon City. Before the court
could resolve the motion, the plaintiff, without leave of court, amended his complaint to allege
a new cause of action consisting in the inclusion of an additional amount of P200,000.00,
thereby increasing his total claim to P450,000.00. The plaintiff thereafter filed his opposition to the
motion to dismiss, claiming that the Regional Trial Court had jurisdiction over his action.
Rule on the motion of the defendant with reasons. (4%) (2005 Bar Question) SUGGESTED
ANSWER:
The motion to dismiss should be denied. ******A plaintiff is entitled as a matter of right to
amend the complaint before a responsive pleading is served, without leave of court, even if
there is a pending motion to dismiss (Sec. 2, Rule 10, 1997, Rules of Civil Procedure; Soledad v.
Manangun, 8 SCRA 110 11963]; Remington Industrial Sales Corporation v. Court of Appeals, 382
SCRA 499 [2002]), While a complaint cannot be amended to confer jurisdiction on a court where
there was none (Calabig v. Villanueva, 135 SCRA300 [1985]), the rule applies where a responsive
pleading has already been filed because in such a case, amendment should be by leave of court
under Section 3 Rule 10. If the court is without jurisdiction, it has no jurisdiction to grant leave of
court. A motion to dismiss is not a responsive pleading, therefore, amendment is a matter of
right (Rule 10, Sec. 1, Rules of Civil Procedure Dauden-Herfiaez v. de los Angeles, 27 SCRA 1276
[1969]; Gumabay v. Baralin 77 SCRA 258 [1977]).
No. 132753, February 15, 1999).

3. When refusal of leave of court to amend is allowed
a. The motion is made to DELAY the action (if it appears to the court that
the motion was made with intent to DELAY); or
b. The cause of action or defense is SUBSTANTIALLY altered305,306
(Guiang v.Nadayag, 214 SCRA 355, 1992).
4. Should the court allow such leave: Orders of the court as to allowing such
amendments shall be made:
a. upon motion filed in court, and
b. after notice to the adverse party, and
c. an opportunity to be heard.
c) Formal amendment [Sec 4]

1. What are formal amendments? These are DEFECTS in
a. the designation307 of the parties and
305
Q: After an answer has been filed, can the plaintiff amend his complaint, with leave of court, by
changing entirely the nature of the action? (2003 Bar Question) SUGGESTED ANSWER:
*****Yes, the present rules allow amendments substantially altering the nature of the
cause of action. (Sec. 3, Rule 10, 1977 Rules of Civil Procedure; Heirs of Marcelino Pagobo v. Court of
Appeals, 280 SCRA 870 [1997]). This should only be true, however, when the substantial change
or alteration in the cause of action or defense shall serve the higher interests of substantial justice
and prevent delay and equally promote the laudable objective of the rules which is to secure a
just, speedy and inexpensive disposition of every action and proceeding. (Valenzuela v. Court of
Appeals, 363 SCRA 779 [2001]).
[] Danny filed a complaint for damages against Peter. In the course of the trial, Peter
introduced evidence on a matter not raised in the pleadings. Danny promptly objected on the ground
that the evidence relates to a matter not in issue. How should the court rule on the objection? (2013
BAR)
(A) The court must sustain the objection.
(B) The court must overrule the objection.
(C) The court, in its discretion, may allow amendment of the pleading if doing so would serve
the ends of substantial justice.
(D) The court, in its discretion, may order that the allegation in the pleadings which do not conform to
the evidence presented be stricken out.
(E) The matter is subject to the complete discretion of the court.
306
Q: Michelle sued Juliet for reinvindication for the recovery of land. After the hearing but previous
to the rendition-of judgment, Michelle amended her complaint making the principal action one
for rescission of contract. Juliet objected. If you were the judge, would you allow the amendment?
No. I would not allow the amendment because the amendment of the complaint from
recovery of land to one for rescission of contract is a substantial change in the cause of action which
may not be done after the trial and previous to the rendition of judgment. (Torres vs. Tomacruz,
49 Phil. 913).
Alternative Answer: Yes. The amendment of the complaint to one of rescission of contract is
not a substantial change in the cause of action, because Michelle’s objective is actually for the
recovery of land. The rule on amendment should not be inflexible but liberal.
307
Q: A complaint was filed by the counsel for Superior Sales (an entity without a distinct
juridical personality) against Mr. Garcia on a money claim for goods delivered. Mr. Garcia did
b. other clearly clerical or typographical errors

2. How are they amended? They may be summarily corrected by the court
3. When? At any stage of the action, at its initiative or on motion, provided no
prejudice is caused thereby to the adverse party.
d) Amendments to conform to or authorize presentation of evidence [Sec 5]

1. Instances when an amendment may be made to CONFORM to the
evidence308 or authorize presentation of evidence:
a. *****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)309 **NB: Failure to amend does
not affect the result of the trial of said issue.
b. Amendment may also be made to authorize presentation of evidence
if evidence is objected to at the trial on the ground that it is not within the
issues made by the pleadings, if the presentation of the merits of the action and
the ends of substantial justice will be subserved thereby (Sec. 5, Rule 10). See
not file a motion to dismiss. Eventually, trial was held and his liability was established through
several invoices, each of which uniformly- showed on its face that Mr. Tan is the proprietor of
Superior Sales. After Superior Sales had rested its case. Mr. Garcia filed a motion to dismiss on the
ground that, since there is actually no person properly suing as plaintiff, no relief can be granted
by the court. On the other hand, the counsel for Superior Sales filed a motion to amend the
complaint to make it conform to the evidence, that the real party plaintiff is Mr. Tan. The court
denied said motion on the ground that it was filed too late and instead, dismissed the case. Did
the court act correctly? Explain. (1992 Bar Question) Suggested Answer:
No, the court erred in denying the motion to amend the complaint and dismissing the case.
*****The mistake in the name of the plaintiff (which should have been Mr. Tan instead of Superior
Sales which had no juridical personality) was cured by the presentation of evidence (without
objection) that Mr. Tan is the proprietor of Superior Sales. Hence the amendment of the
complaint to conform to the evidence was proper, and even if no amendment was made, it would
not affect the result of the trial on the issue of the real party in interest. (Sec. 5 of Rule 10)
308
With leave of court, a party may amend his pleading if: (2012 BAR)
a. thereisyetnoresponsivepleadingserved.
b. theamendmentisunsubstantial.
c. the amendment involves clerical errors of defect in the designation of a party.
d. the amendment is to conform to the evidence.
309
Q: In a complaint for a sum of money filed before the MM Regional Trial Court, plaintiff did not
mention or even just hint at any demand for payment made on defendant before commencing suit.
During the trial, plaintiff duly offered Exh. “A" in evidence for the stated purpose of proving the
making of extrajudicial demand on defendant to pay P500.000, the subject of the suit. Exh. “A" was a
letter of demand for defendant to pay said sum of money within 10 days from receipt, addressed to
and served on defendant some two months before suit was begun. Without objection from
defendant, the court admitted Exh. “A" in evidence. Was the court’s admission of Exh. “A” in
evidence erroneous or not? Reason. (5%) (2004 Bar Question) SUGGESTED ANSWER:
The court’s admission of Exh. ‘‘A’’ in evidence is not erroneous. It was admitted in evidence
without objection on the part of the defendant. It should be treated as if it had been raised in the
pleadings. The complaint may be amended to conform to the evidence, but if it is not so
amended, it does not affect the result of the trial on this issue. (Sec. 5 of Rule 10).
number 5, infra.
2. How? It may be made upon motion of any party
3. When? At any time, even after judgment.
4. Effect of failure to amend: It does not affect the result of the trial of these
issues.
5. What will the court do if evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings?
a. 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.310
b. The court may grant a continuance to enable the amendment to be made.
6. Application of Sec. 5 in Swagman Hotels and Travel vs CA:
a. Crucial point: **amendment will lie only if the cause of action in fact
exists at the time the complaint is filed. Otherwise, the filing if the complaint is
plainly IMMATURE.
b. Section 5 of Rule 10 applies to situations wherein evidence not within
the issues raised in the pleadings is presented by the parties during the trial,
and to conform to such evidence, the pleadings are subsequently amended on
motion of a party. Thus, a complaint which fails to state a cause of action may be
cured by evidence presented during the trial. However, the curing effect under
Section 5 is applicable only if a cause of action in fact exists at the time the
complaint is filed, but here, the complaint is defective for failure to allege the essential
facts.
c. A complaint whose cause of action has NOT yet ACCRUED cannot
be cured or remedied by an amended or supplemental pleading alleging the
existence or accrual of a cause of action while the case is pending. Such an action is
PREMATURELY brought and is, therefore, a groundless suit, which should
310
Q: During trial, plaintiff was able to present, without objection on the part of defendant in an
ejectment case, evidence showing that plaintiff served on defendant a written demand to vacate
the subject property before the commencement of the suit, a matter not alleged or otherwise set
forth in the pleadings on file. May the corresponding pleading still be amended to conform to the
evidence? Explain. (5%)(2004 Bar Question) SUGGESTED ANSWER:
Yes. The corresponding pleading may still be amended to conform to the evidence,
because the written demand to vacate, made prior to the commencement of the ejectment suit, was
presented by the plaintiff in evidence without objection on the part of the defendant. Even if the
demand to vacate was jurisdictional, still, the amendment proposed was to conform to the
evidence that was already in the record and not to confer jurisdiction on the court, which is not
allowed. Failure to amend, however, does not affect the result of the trial on these issues. (Sec. 5
of Rule 10).
ALTERNATIVEANSWER: It depends. In forcible entry, the motion may be allowed at the
discretion of the court, the demand having been presented at the trial without objection on the part of
the defendant. In unlawful detainer, however, the demand to vacate is jurisdictional and since
the court did not acquire jurisdiction from the very beginning, the motion to conform to the evidence
cannot be entertained. The amendment cannot be allowed because it will in effect confer
jurisdiction when there is otherwise no jurisdiction.
be dismissed by the court upon proper motion seasonably filed by the defendant. The
underlying reason for this rule is that a person should not be summoned before the
public tribunals to answer for complaints which are immature.
7. NO NEED TO ISSUE NEW SUMMONS WHEN THE COMPLAINT IS
AMENDED: There is no need to issue new summons for the court to acquire
jurisdiction over the parties when the complaint was amended. The trial court had
already acquired jurisdiction over the person of the defendants when they were
served with summons on the basis of the original complaint and when they appeared and filed a
motion to dismiss. Gumabay vs Maralin (1977)
e) Different from supplemental pleadings [Sec 6]

1. AMENDMENT vs. SUPPLEMENTAL PLEADINGS [Sec 6]
a. Are supplemental pleadings allowed? YES.
b. How are they pleaded? 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.
c. What do supplemental pleadings set forth? transactions, occurrences or events
which have happened since the date of the pleading sought to be supplemented.
**NB: The cause of action stated in the supplemental complaint
must be the same as that stated in the original complaint. Otherwise, the court
should not admit the supplemental complaint (Asset Privatization Trust v. CA, G.R. No.
121171, December 29, 1998).
d. Remedy of the adverse party: he may plead thereto within ten (10) days
from notice of the order admitting the supplemental pleading.
2. Purposes of supplemental pleading
a. It is to bring into the records new facts, which will enlarge or
change the kind of relief to which the plaintiff is entitled.
b. It is meant to supply deficiencies in aid of the original pleading, not to
entirely substitute the latter (Herrera, 2007).
**Filing an answer to a supplemental complaint is NOT
MANDATORY because of the use of the word “may” in Sec. 7, Rule 11. This
is bolstered by the express provision of the Rules that the answer to the original
pleading shall serve as the answer to the supplemental pleading if no new or
supplemental answer is filed. The **Court cannot declare the respondents in
default simply because the latter opted not to file their answer to the
supplemental petition (Chan v. Chan, G.R. No. 150746, October 15, 2008).
Amended Pleading Supplemental Pleading
Refers to the facts existing at the time of Refers to facts occurring after the filing of the
filing of original pleading original pleading
Supersedes the original Merely supplements the original pleading
May be amended without leave of court before a Always with leave of court
responsive pleading is filed.
It has retroactive application. It sets forth transactions, occurrences or events which have
happened since the date of the pleading sought to be
supplemented.
Amendment must be appropriately There is no such requirement in supplemental
marked. pleadings (Herrera, 2007).
[] Bar area: *****the amended pleading retroacts to the day the original complaint
was filed for the purposes of prescription.311
f) Effect of amended pleading [Sec 7-8]

1. What’s the effect of an amended pleading? It supersedes the pleading that it amends.
2. Rule on the admissions made in superseded pleadings
a. GR: they may be still be received in evidence against the pleader,
b. XPN: claims or defenses alleged therein not incorporated in the
amended pleading shall be deemed WAIVED.
3. Effect of amended pleading on the admissions in the original pleading: They
cease to be judicial admissions.312 Thus, they are to be considered as
311
Q: X, an illegitimate child of Y, celebrated her 18th birthday on May 2, 1996. A month before her
birthday. Y died. The legitimate family of Y refused to recognize X as an illegitimate child of Y. After
countless efforts to convince them, X filed on April 25, 2000 an action for recognition against Z, wife,
of Y. After Z filed her answer on August 14, 2000, X filed a motion for leave to file an amended
complaint and a motion to admit the said amended complaint impleading the three (3) legitimate
children of Y. The trial court admitted the amended complaint on August 22, 2000. What is the effect
of the admission of the amended complaint? Has the action of X prescribed? Explain. (5%) (2000 Bar
No. The action filed on April 25, 2000 is still within the four-year prescriptive period
which started to run on May 2, 1996. The amended complaint impleading the three legitimate
children, though admitted on August 22, 2000 beyond the four-year prescriptive period, retroacts
to the date of filing of the original complaint. Amendments impleading new defendants retroact to
the date of the filing of the complaint because they do not constitute a new cause of action. (Verzosa v.
Court of Appeals, 299 SCRA 100 (1938]). (Note: The four-year period is based on Article 285 of the
Civil Code) [] Art. 285. The action for the recognition of natural children may be brought only
during the lifetime of the presumed parents, except in the following cases: (1) If the father or mother
died during the minority of the child, in which case the latter may file the action before the
expiration of four years from the attainment of his majority; (2) If after the death of the father or
of the mother a document should appear of which nothing had been heard and in which either or both
parents recognize the child. In this case, the action must be commenced within four years from the
finding of the document.
ANOTHER ALTERNATIVE ANSWER: Under Article 175 of the Family Code, the action
must be brought within the lifetime of X if the action is based on a record of birth or an admission of
filiation in a public document or a private handwritten instrument signed by Y. In such case, the action
of X has not prescribed. However, if the action is based on the open and continuous possession of the
status of an illegitimate child, the action should have been brought during the lifetime of Y. In such
case, the action of X has prescribed.
312
Q: In an action for reconveyance of a parcel of land filed in the Regional Trial Court, the
defendant, through his lawyer, filed an answer therein admitting the averment in the complaint
that the land was acquired by the plaintiff through inheritance from his parents, the former owners
extrajudicial admissions and may be proved by the party relying thereon by formal offer in
evidence of such original pleading (Ching v. CA, G.R. No. 110844, April 27, 2000).
4. NB: 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.
———————————————————————————————
thereof. Subsequently, the defendant changed his lawyer and, with leave of court, amended the
answer. *****In the amended answer, the abovementioned admission no longer appears; instead,
the alleged ownership of the land by the plaintiff was denied coupled with the allegation that
the defendant is the owner of the land for the reason that he bought the same from the plaintiff’s
parents during their lifetime. After trial, the Regional Trial Court rendered a decision upholding the
defendant’s ownership of the land. On appeal, the plaintiff contended that the defendant is bound by
the admission contained in his original answer. Is the contention of plaintiff correct? Why? (1993 Bar
Question) Answer:
No, because pleadings that have been amended disappear from the record, lose their
status as pleadings and cease to be judicial admissions. While they may nonetheless be utilized as
against the pleader as extrajudicial admissions, they must, in order to have such effect, be formally
offered in evidence. [Director of Lands vs. Court of Appeals, 196 SCRA 94)
3.6. Summons [Rule 14]
PRELIMINARIES ON SUMMONS 207

SUMMARY OF CASE DOCTRINES ON SUMMONS 207
Preliminary notions: actions in personal, in rem, quasi in rem 209
Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem210
EXPLANATIONS OF THE VARIOUS SUMMONSES 210
Service in person 212
Substituted service 212
Constructive service (by publication) 212
Service upon those not physically present in the Philippines 215
Extraterritorial service 217
Service upon prisoners and minors 219
Service to juridical persons 222
Rules on the right of a foreign corporation to bring suit in PH courts 223
Summons and preliminary attachment as applied to foreign corporations 226
Proof of service 226
———————————————————————————————
PRELIMINARIES ON SUMMONS
1. Summons is a writ by which the defendant is notified of the action brought
against him or her. An important part of that notice is a direction to the
defendant that he must answer the complaint within the period fixed by the
Rules, and that unless he so answers, plaintiff will take judgment by default and may be
granted the relief applied for (Riano, 2014). *****NB: The requirements of the rule on
summons must be strictly followed, otherwise, the trial court will not acquire
jurisdiction over the defendant.
a. Who issues summons? [Sec 1]: the Clerk of Court (CoC)
b. When the service has been completed, the server shall, within 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 (Sec. 4, Rule 14).
c. If summons is returned without being served, the server shall also
serve a copy of the return on the plaintiff’s counsel stating the reasons for the
failure of service, within 5 days therefrom (Sec. 5, Rule 14).
2. When? Upon the filing of the complaint and the payment of the requisite
legal fees
3. To whom? to the defendants.
4. What are the CONTENTS of a summons [Sec 2]?: 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 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.313
5. Attachments accompanying the original and each copy of the summons:
a. A copy of the complaint and
b. order for appointment of guardian ad litem, if any.
6. Who serves the summons [Sec 3]? The summons may be served by
a. the sheriff,
b. his deputy, or
c. other proper court officer,314
d. *****or for justifiable reasons by any suitable person authorized by
the court issuing the summons.
7. Return [Sec 4]: What is incumbent upon the server when the service has been
completed: within five (5) days therefrom,
a. he shall serve a copy of the return, personally or by registered mail, to the
plaintiff's counsel, and
b. shall return the summons to the clerk, who issued it, accompanied by
proof of service.
8. When is the issuance of alias summons315 needed[Sec 5]?
a. Situation: when summons is returned without being served on any or
all of the defendants, the server shall serve a copy of the return on the plaintiff's
counsel, stating the reasons for the failure of service, within five (5) days
therefrom.
b. When may the clerk issue an alias summons?
i. on demand of the plaintiff
ii. When the summons is
(a) is returned without being served on any or all of the
313
An important part of that notice is a direction to the defendant that he must answer the complaint
within the period fixed by the Rules, and that unless he so answers, plaintiff will take judgment by
default and may be granted the relief applied for (Riano, 2014).
314
W, a legal researcher in the RTC of Makati, served summons on an amended complaint on Z at
the latter's house on a Sunday. The service is invalid because: (2012 BAR)
a. itwasservedonaSunday.
b. thelegalresearcherisnota"propercourtofficer".
c. (a) and (b) above
d. there is no need to serve summons on an amended complaint.
315
ALIAS SUMMONS: If a summons is returned without being served on any or all of the
defendants or if the summons has been lost, the clerk, on demand of the plaintiff, may issue an alias
summons (Sec. 5, Rule 14).
defendants
(b) or if the summons has been lost.
9. Rule on filing Leave of Court when necessary under the rule on summons
[Sec 17]: it shall be made
a. by motion in writing,
b. supported by affidavit of the plaintiff or some person on his behalf, setting forth
the grounds for the application.
10. EFFECT OF INVALID SERVICE: When the defendant does not voluntarily
submit to the court’s jurisdiction or when there is no valid service of summons,
*****any JUDGMENT of the court which has no jurisdiction over the person
of the defendant is NULL and void.316
***Even if the defendant knows there is an action against him? YES.
Jurisdiction of the court over the person of the defendant or respondent cannot
be acquired notwithstanding his knowledge of the pendency of a case
against him unless he was validly served with summons. Such is the important
role a valid service of summons plays in court actions. Ellice Agro-Industrial Corp v.
Young, November 21, 2012; Cesar v. Ricafort-Bautista 2006.
11. NB: Voluntary appearance and summons in relation to actions in personam,
in rem and quasi in rem are discussed under Jurisdiction over the parties, supra.
SUMMARY OF CASE DOCTRINES ON SUMMONS

******
1. [SERVICE IN PERSON] Personal service of summons is the preferred
mode of service of summons. Thus, as a rule, summons must be served
personally upon the defendant or respondent wherever he or she may be found.
a. If the defendant or respondent refuses to receive the summons, it shall
be tendered to him or her.
b. If the defendant or respondent is a domestic juridical person, personal
service of summons shall be effected upon its president, managing partner,
general manager, corporate secretary, treasurer, or in-house counsel wherever
he or she may be found.
316
A. What is the effect of absence of summons on the judgment rendered in the case? (2%) The
effect of the absence of summons on a judgment would make the judgment null and void because
the court would not have jurisdiction over the person of the defendant, but if the defendant
voluntarily appeared before the court, his appearance is equivalent to the service of summons.
(Sec. 20, Rule 14, 1997 Rules)
B. When additional defendant is impleaded in the action, is it necessary that summons be
served upon him? Explain; (2%) Yes. Summons must be served on an additional defendant impleaded
in the action so that the court can acquire jurisdiction over him, unless he makes a voluntary
appearance.
C. Is summons required to be served upon a defendant who was substituted for the
deceased? Explain. (2%) No. A defendant who was substituted for the deceased need not be served
with summons because it is the court which orders him as the legal representative of the
deceased to appear and substitute the deceased. (Sec. 16 of Rule 3.) Bar 1999
2. [SUBSTITUTED SERVICE] Other modes of serving summons may be done

when justified. Service of summons through other modes will not be effective
without showing SERIOUS ATTEMPTS to serve summons through
personal service. Thus, The rules allow summons to be served by substituted
service only for justifiable causes and if the defendant or respondent cannot be served
within reasonable time. Substituted service is 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.”
3. [CONSTRUCTIVE SERVICE: BY PUBLICATION] Service of Summons by
Publication; Service of summons by publication in a newspaper of general circulation
is allowed when
a. the defendant or respondent is designated as an unknown owner or
b. if his or her whereabouts are “unknown and cannot be ascertained
by diligent inquiry.
*****It may only be effected after unsuccessful attempts to serve the
summons personally, and after diligent inquiry as to the defendant’s or
respondent’s whereabouts.
4. [EXTRATERRITORIAL SERVICE] Service of summons by extraterritorial
service is allowed when the defendant or respondent
a. does not reside (in the country)
b. or is not found in the country
c. or is temporarily out of the country
5. Special classes of defendants:
a. Service upon prisoners and minors
b. Service to juridical persons
———————————————-
Preliminary notions: actions in personal, in rem, quasi in rem
Nature and purpose of summons in relation to actions in personam, in rem

and quasi in rem
1. Preliminary Concept: to understand the concepts in this section, one has to
grasp the following:
a. Personal action vs. Real action: refers to the nature of the subject
matter of the controversy involved. It refers to the venue of the action.
b. Compared to: Actions in personam, in rem & quasi in rem: which
depend on the BINDING EFFECT of the judgment to be rendered in the
action. It refers to the jurisdiction of the court.
2. Purpose of summons in:
a. Actions in personam (similar to the overall purpose of summons, supra)
i. To acquire jurisdiction over the person of the defendant; and
ii. To give notice to the defendant that an action has been

commenced against him (Umandap v. Sabio, August 29, 2000; Nation Petroleum Gas,
Inc. v. RCBC, August 17, 2015).
b. Actions in rem and quasi in rem: to acquire JN over the res; not to
acquire jurisdiction over the defendant but mainly to satisfy the constitutional
requirement of due process317 (Gomez v. CA, March 10, 2004). ******NB: for
both in rem and quasi in rem actions: not necessary for the court to acquire JN
over the person of the defendant; the court may just acquire JN over the subject
property.
3. And so, it depends on the nature of the case:
a. action in personam: judgment will bind ONLY THE PARTIES
impleaded and their privies; JN over the person may be acquired depending on
(at time action is filed):
i. he is a resident of PH and within PH: a) by voluntary
appearance & submitting to authority of court; b) personal service of summons;
c) if (b) could not be made promptly, through substituted service of summons.
NB: If service of summons is not done in accordance with these modes, the court
cannot acquire JN over the person of the defendant, hence, court cannot render a
valid judgment over the defendant.
ii. he is a PH resident but outside PH temporarily: a) through
voluntary appearance; b) personal service of summons—extrajudicial service
of summons but with LEAVE of court under Sec 15; c) substituted service of
summons if personal service could not be done promptly; d) publication; e)
*****any other way the court may deem sufficient in the premises (Achtung! Sec
8)—hence, the service of summons may not be in the list, the court may still
regard it as valid; why? because the adverse party is after all a resident of PH
although temporarily out of PH.
b. action in rem: if judgment will bind ALL who are MINDED to
challenge the decision
c. action quasi in rem: if the action, although directed against a
particular defendant, will bind property involved therein against ANYONE
who may be MINDED to lay a claim on the property involved.
———————————————-
317
Importance of compliance with the rules: Compliance with the rules regarding the service of
summons is **as much an issue of due process as of jurisdiction. The essence of due process is
to be found in the reasonable opportunity to be heard and submit any evidence one may have in
support of his defense.
*EG: It is elementary that before a person can be deprived of his property, he should first be
informed of
a. the claim against him and
b. the theory on which such claim is premised.
EXPLANATIONS OF THE VARIOUS SUMMONSES
Service in person
1. Personal service [better wording: service in person] of summons is the
preferred mode of service of summons. ******It is proper only if the suit is
one strictly in personam.
a. Thus, as a rule, summons must be served personally upon the defendant
or respondent wherever he or she may be found.
b. If the defendant or respondent refuses to receive the summons, it shall
be tendered to him or her.
c. If the defendant or respondent is a domestic juridical person, personal
service of summons shall be effected upon its president, managing partner,
general manager, corporate secretary, treasurer, or in-house counsel wherever
he or she may be found.
2. How is service in person made on defendant? Whenever practicable, the summons
shall be served:
a. by handing a copy to the defendant in person, or,
b. if he refuses to receive and sign for it, by tendering it to him.
Substituted service
1. Prerequisite to substituted service: If, for justifiable causes, the defendant cannot
be served in person within a reasonable time.318 Should the sheriff’s return be
wanting of these details, substituted service will be irregular if no other evidence
of the efforts to serve summons was presented.319
2. Under our procedural rules, personal service is generaly preferred over
318
Service of summons upon the defendant shall be by personal service first and only when the
defendant cannot be promptly served in person will substituted service be availed of. The
impossibility of personal service justifying availment of substituted service should be explained in
the proof of service; why efforts exerted towards personal service failed. The pertinent facts and
circumstances attendant to the service of summons must be stated in the proof of service or
Officer’s Return; otherwise, the substituted service cannot be upheld [Samartino v. Raon, 303 SCRA
664 (1999)]
*It is an extraordinary method since it seeks to bind the defendant to the consequences of a
suit even though notice of such action is served not upon him but upon another whom the law
could only presume would notify him of the pending proceedings. Failure to faithfully, strictly, and
fully comply with the statutory requirements of substituted service renders such service ineffective.
Afdal vs. Carlos, 1 December 2010
319
*****Regardless of the type of action — whether it is in personam, in rem or quasi in rem —
proper service of summons is imperative, and to this effect, the preferred mode of service of
summons is personal service. To avail themselves of substituted service, courts must rely on a
detailed enumeration of the sheriff’s actions and a showing that the defendant cannot be served
despite diligent and reasonable efforts. The sheriff’s return, which contains these details, is entitled
to a presumption of regularity, and on this basis, the court may allow substituted service. Should the
sheriff’s return be wanting of these details, substituted service will be irregular if no other evidence of the
efforts to serve summons was presented. De Pedro vs Romasan (2014)
substituted service, the latter mode of service being a method extraordinary in

character. For substituted service to be justified, the following circumstances must
be clearly established [Robinson vs. Miralles, December 12, 2006]:*****
(a) personal service of summons within a reasonable time was impossible;320
NB: To the sheriff, “reasonable time” means 15 to 30 days.
(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 place of business. Failure to do so would invalidate all
subsequent proceedings on jurisdictional grounds.
3. How is it done? Substituted service is effected:
(a) by leaving copies of the summons at the defendant’s residence with
some person of suitable age and discretion then residing therein321, or
(b) by leaving the copies at defendant’s office or regular place of business
with some competent person in charge thereof.
4. In Manotoc v. Court of Appeals (2006), the following requirements for valid
substituted service were provided for:******
a. 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
320
NB: it is the IMPOSSIBILITY of personal service within a REASONABLE TIME that allows
substituted service. Hence, the mere fact of absence of the defendant is not enough to authorize
the sheriff to resort to substituted service. Say, if the defendant is absent, the sheriff has to ask when he
will return, otherwise, the substituted service is invalid.
321
BAR 2016: Q: Juan sued Roberto for specific performance. Roberto knew that Juan was going
to file the case so he went out of town and temporarily stayed in another city to avoid service of
summons. Juan engaged the services of Sheriff Matinik to serve the summons but when the latter
went to the residence of Roberto, he was told by the caretaker thereof that his employer no longer
resides at the house. The caretaker is a high school graduate and is the godson of Roberto. Believing
the caretaker's story to be true, Sheriff Matinik left a copy of the summons and complaint with the
caretaker. Was there a valid substituted service of summons? Discuss the requirements for a valid
service of summons. SUGGESTED ANSWER: Yes, there was a valid service of summons. In a case
involving similar facts, the Supreme Court held that there was a valid substituted service of
summons since the defendant was engaged in deception to thwart the orderly administration
of justice. Here the defendant was also engaged in deception since he temporarily stayed in another
city to avoid service of summons and his caretaker falsely said he no longer resides in the
house. (Sagana v. Francisco, 2 Oct 2009). The requirements for a valid substituted service of summons
are: (1) The defendant, for justifiable reasons, cannot be personally served with summons within a
reasonable time. (2) Copies of the summons shall be left at the defendant’s residence with some person
of suitable age and discretion residing therein, or by leaving the copies at defendant’s office or regular
place of business with some competent person in charge thereof. (Jurist Review Center, Inc.)
TIME.322 NB: It is impossible for the sheriff to render service in person the
summons when he is not allowed to enter the subdivision by the security guard
based on the strict instruction of the defendant.323
b. 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.324
c. Substituted service effected on
i. a person of suitable age and discretion residing at defendant’s
house or residence; NB:325 at least 18 y/o with enough discernment to understand the
importance of summons; know how to read and understand English; he must
have “relation of confidence”326 with the defendant;
322
*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.
*What then is a reasonable time for the sheriff to effect a personal service in order to
demonstrate impossibility of prompt service? To the sheriff, “reasonable time” means **15 TO 30 DAYS
because at the end of the month, it is a practice for the branch clerk to require the sheriff to
submit a return of the summons assigned to the sheriff for service (Manotoc v. CA, G.R. No.
130974, August 16, 2006).
323
However, there is **VALID SUBSTITUTED SERVICE when the sheriff was refused entry by the
security guard in Alabang Hills twice and that the latter informed him that petitioner prohibits him
from allowing anybody to proceed to her residence whenever she is out. Obviously, it was impossible
for the sheriff to effect personal or substituted service of summons upon petitioner. In this case, the
defendant failed to controvert the sheriff’s declaration. Nor did she deny having received the
summons through the security guard. Considering her strict instruction to the security guard, she must
bear its consequences. Thus, we agree with the trial court that summons has been properly served upon petitioner
and that it has acquired jurisdiction over her. [Robinson vs. Miralles, December 12, 2006]
324
*The sheriff must describe in the Return of Summons the facts and circumstances surrounding
the attempted personal service. The efforts made to find the defendant and the reasons behind the
failure must be clearly narrated in detail in the Return. Manotoc vs. CA, August 16, 2006
325
**suitable age and discretion: at least 18 y/o with enough DISCERNMENT to understand the
importance of a summons. To be of sufficient discretion: must know how to read and understand
English to comprehend the import of the summons, and fully realize the need to deliver the
summons and complaint to the defendant at the earliest possible time for the person to take appropriate
action. Thus, the person must have the “RELATION OF CONFIDENCE” to the defendant,
ensuring that the latter would receive or at least be notified of the receipt of the summons. These matters must be
clearly and specifically described in the Return of Summons.
326
Now, as applied in Manotoc v. Court of Appeals (2006): The Sheriff’s Return lacks information as to
residence, age, and discretion of Mr. Macky de la Cruz, aside from the sheriff’s general assertion that
de la Cruz is the “resident caretaker” of petitioner as pointed out by a certain Ms. Lyn Jacinto,
alleged receptionist and telephone operator of Alexandra Homes. It is doubtful if Mr. de la Cruz is
residing with petitioner Manotoc in the condominium unit considering that a married woman of her stature
in society would unlikely hire a male caretaker to reside in her dwelling. With the petitioner’s allegation that
Macky de la Cruz is not her employee, servant, or representative, it is necessary to have additional
information in the Return of Summons. Besides, Mr. Macky de la Cruz’s refusal to sign the Receipt
for the summons is a strong indication that he did not have the necessary “relation of confidence” with
petitioner.
*Even assuming that Alexandra Homes Room 104 is her actual residence, such fact would
not make an irregular and void substituted service valid and effective.
ii. or on a competent person in charge of defendant’s office or regular

place of business; NB:327 He is the one managing the office/business of the
defendant and he has sufficient knowledge to understand the importance of the
summons.
5. How about the PRESUMPTION OF REGULARITY IN THE
PERFORMANCE OF OFFICIAL DUTY BY THE SHERIFF? For the
presumption to apply, the Sheriff’s Return must show that serious efforts or
attempts were exerted to personally serve the summons and that said efforts
failed. These facts must be specifically narrated in the Return. To reiterate, it
must clearly show that the substituted service must be made on a person of
suitable age and discretion living in the dwelling or residence of defendant.
Otherwise, the Return is flawed and the presumption cannot be availed of.
6. MTD can be availed of: Given the fact that the substituted service of
summons may be assailed by a Motion to Dismiss, it is imperative that the
pertinent facts and circumstances surrounding the service of summons be described with
more particularity in the Return or Certificate of Service. Manotoc vs. CA, August
16, 2006
7. Substituted service of pleadings and other papers v. Substituted service of
summons
Substituted service of pleadings and other papers Substituted service of summons
Purpose is to provide a copy of the pleading or Purpose is to acquire jurisdiction over the person
other papers to the defendant in order for him of the defendant
to be informed
Availed of only when there is failure to effect Only if service in person cannot be made
service personally or by mail. This failure promptly can the process server resort to
occurs when the office and residence of the party or substituted service
counsel are unknown
Effected by delivering the copy to the clerk of Effected by leaving copies of the summons at the
court, with proof of failure of both personal defendant’s residence to a person of suitable age
service and service by mail and discretion residing therein or by leaving copies
at the defendant’s office or regular place of business
with some competent person in charge thereof.
Constructive service (by publication)

1. GR: As a general rule, summons by publication is available only in actions in
rem or quasi in rem. It is not available as a means of acquiring jurisdiction over
the person of the defendant in an action in personam.
2. XPN: Summons by publication is available in an action in personam in the
327
*Thus, he must be the one managing the office or business of defendant, such as the president
or manager; and such individual must have sufficient knowledge to understand the obligation of
the defendant in the summons, its importance, and the prejudicial effects arising from inaction on the
summons. Again, these details must be contained in the Return.
following situations: *****It may only be effected after unsuccessful attempts to

serve the summons personally, and after diligent inquiry as to the defendant’s or
respondent’s whereabouts. (a to c apply to any action, which necessarily includes
personal action (Riano, 2014)].******
a. The identity of the defendant is unknown [Sec 14328];
b. The whereabouts of the defendants are unknown [Sec 14];
c. The defendant a resident of the Philippines but is temporarily out of
the country [Sec 16329]
d. The defendant does not reside330 and is not found in the Philippines
but the suit can be properly maintained against him in the Philippines, it
being a rem or quasi in rem.
[] For (c) and (d), see next thought unit.
3. NB: Summons by publication may be made ******only with leave of court.
Hence, how is service effected?
a. by leave of court;
b. by publication in a newspaper of general circulation and in such
places and for such time as the court may order.
328
Service upon a defendant where his identity is unknown or his whereabouts are unknown [Sec
14] When is this service applicable? In any action where i. the defendant is designated as an unknown
owner, or the like, or whenever his whereabouts are unknown and ii. cannot be ascertained by
diligent inquiry
*****The rule in Sec. 14, Rule 14 authorizes summons by publication in any action and the
rule obviously does not distinguish whether the action is in personam, in rem, or quasi in rem.
The tenor of the rule authorizes summons by publication ******whatever the action may be as long
as the identity of the defendant is unknown or his whereabouts are unknown (Santos v. PNOC
Exploration, Corporation, G.R. No. 170943, September 23, 2008).
329
Service upon residents temporarily outside the Philippines [Sec 16]
a. When applicable: i. defendant ordinarily resides within the Philippines; ii. but who is
temporarily out of it.
b. How is service effected?*****
i. by leave of court,
ii. may be effected out of the Philippines through extraterritorial service [Sec 15, infra]
330
[] When a nonresident defendant is sued in the Philippine courts and it appears, by the complaint
or by affidavits, that the action relates to real or personal property within the Philippines in which
said defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded
consists, wholly or in part, in excluding such person from any interest therein, service of summons
may be made by PUBLICATION. The action being QUASI IN REM, the court has jurisdiction to
try the same even if it can acquire no jurisdiction over the person of the non-resident. *****In order
to satisfy the constitutional requirement of due process, summons has been served upon her by publication.
There is no question as to the adequacy of the publication to the petitioner's last known place of
residence in the United States. But, of course, the action being quasi in rem and notice having
been made by publication, the **relief that may be granted by the Philippine court must be CONFINED
TO THE RES, it having no jurisdiction to render a personal judgment against the nonresident. In the
amended complaint filed by E. A. P., no money judgment or other relief in personam is prayed for
against the petitioner. The only relief sought therein is that she be declared to be without any interest in
the shares in controversy and that she be excluded from any claim thereto. Perkins vs. Dizon et al.,
November 16, 1939
4. Service of summons BY MAIL: Service of summons may be effected through

publication in a newspaper of general circulation ******together with a
registered mailing of a copy of the summons and the order of the court to
the LAST KNOWN ADDRESS of the defendant331 (Riano, 2014). It can be
done as a COMPLEMENTARY to service of summons by publication but it
does not mean that service by registered mail alone would suffice.
Service upon those not physically present in the Philippines

1. Resident but not in PH: Jurisdiction over the person of a resident defendant
who does not voluntarily appear in court can be acquired by personal service
of summons (NB: Riano said it should be “service in person”) as provided under
Section 7, Rule 14 of the Rules of Court. If he cannot be personally served with
summons within a reasonable time, SUBSTITUTED SERVICE may be made
in accordance with Section 8 of said Rule. If he is temporarily out of the country,
any of the following modes of service may be resorted to:
(1) substituted service set forth in Section 8; (not for non-resident: ******If
the trial court can acquire jurisdiction over the case by substituted service
instead of attaching the property of the defendant, the petitioner is not entitled
to a writ of attachment.332)
331
Lani filed an action for partition and accounting in the Regional Trial Court (RTC) of Manila against
her sister Mary Rose, who is a resident of Singapore and is not found in the Philippines. Upon
motion, the court ordered the publication of the summons for three weeks in a local tabloid,
Bulgar. Linda, an OFW vacationing in the Philippines, saw the summons in Bulgar and brought a copy
of the tabloid when she returned to Singapore, Linda showed the tabloid and the page containing the
summons to Mary Rose, who said, “Yes I know, my kumare Anita scanned and e-mailed that page of
Bulgar to me!” Did the court acquire jurisdiction over Mary Rose? (2008 Bar Question)
SUGGESTED ANSWER: No, the court did not acquire jurisdiction over Mary Rose, the
defendant. While serving summons by publication is allowed in this case under Section 15, Rule 14
of the Rules of Court, the required sending of the copy of the summons and the order of the
Court by registered mail to the last known address of the same defendant has not been followed;
service of summons by publication under said Rule has not been complied with; thus, there is no valid
service.
ALTERNATIVE ANSWER: Yes, the court acquired jurisdiction over Mary Rose because
service of summons by publications is allowed when the defendant does not reside and is not found in
the Philippines and the action is in rem or quasi in rem under Sec. 15, Rule 14 of 1997 Rules of Civil
Procedure. Besides, Mary Rose had actual knowledge of the complaint against her (PCIB v. Alejandro,
533 SCRA 738 [2007]).
332
If he has residence or place of business in the Philippines, and because he cannot be served
within a reasonable time because of his absence in the Philippines, this absence would now trigger the
application of the rule on substituted service of summons (Montalban v. Maximo, G.R. No. L-
22997, March 15, 1968). ******Substituted service of summons is the normal mode of service of
summons that will confer jurisdiction on the court over the person of residents temporarily out of the
Philippines.
a. RATIONALE: a man temporarily absent from this country leaves a definite place of
residence, a dwelling where he lives, a local base, so to speak, to which any inquiry about him may be
directed and where he is bound to return.
b. NB: ******attachment of his/her property in an action in personam, is not always
(2) personal service outside the country, with leave of court; (for both resident
and non-resident)
(3) service by publication, also with leave of court; or (for both resident and
non-resident) [NB: Service of summons may be effected through publication in a
newspaper of general circulation ******together with a registered mailing of a
copy of the summons and the order of the court to the LAST KNOWN
ADDRESS of the defendant]
(4) any other manner the court may deem sufficient. (for both resident and non-
resident) Asiavest Limited vs. Court of Appeals, G.R. No. 128803 September 25, 1998
2. Non-resident and not in PH: In a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a prerequisite333 to confer
jurisdiction on the court provided that the court acquires jurisdiction over the
res. Nonetheless, summons must be served upon the defendant not for the
purpose of vesting the court with jurisdiction but merely for satisfying the due process
requirements. Thus, where the defendant is a non-resident who is not found in
the Philippines and
(1) the action affects the personal status of the plaintiff;
(2) the action relates to, or the subject matter of which is property in the
Philippines in which the defendant has or claims a lien or interest;
(3) the action seeks the exclusion of the defendant from any interest in the
property located in the Philippines; or
(4) the property of the defendant has been attached in the Philippines—
service of summons may be effected by
(a) personal service out of the country, with leave of court;
(b) publication, also with leave of court; or
necessary in order for the court to acquire jurisdiction to hear the case. The rules on the application of
a writ of attachment must be strictly construed in favor of the defendant. For attachment is harsh,
extraordinary, and summary in nature; it is a rigorous remedy which exposes the debtor to humiliation
and annoyance. It should be resorted to only when necessary and as a last remedy. *****Thus, if
the sole purpose of the attachment is for the court to acquire jurisdiction, it must determine whether
from the allegations in the complaint, substituted service will suffice, or whether there is a need to
attach the property of the defendant and resort to service of summons by publication in order for
the court to acquire jurisdiction over the case and to comply with the requirements of due process. ******If the trial
court can acquire jurisdiction over the case by substituted service instead of attaching the
property of the defendant, the petitioner is not entitled to a writ of attachment. PCI Bank vs
Alejandro (2007)
333
Compare this with an action in personam: Where the action is in personam, that is, one brought
against a person on the basis of her personal liability, jurisdiction over the person of the defendant is
necessary for the court to validly try and decide the case. When the defendant is a non-resident,
personal service of summons within the state is essential to the acquisition of jurisdiction over the
person. Summons on the defendant must be served by handing a copy thereof to the defendant in
person, or, if he refuses to receive it, by tendering it to him. This cannot be done, however, if the
defendant is not physically present in the country, and thus, the court cannot acquire jurisdiction
over his person and therefore cannot validly try and decide the case against him. Velayo-Fong vs.
Velayo, December 6, 2006
(c) any other manner the court may deem sufficient. Asiavest Limited vs.
Court of Appeals, G.R. No. 128803 September 25, 1998
******NB: these three are similar to residents who are not in PH; the
latter has only one extra mode, which is substituted service.
3. Non-resident and not in PH: But for action in personam of a non-resident
who is not in PH, the rules are:
a. GR: In an action in personam wherein the defendant is a non-resident
who does not voluntarily submit himself to the authority of the court, PERSONAL
SERVICE of summons WITHIN THE STATE is essential to the acquisition
of jurisdiction over her person. This method of service is possible if such
defendant is physically present in the country. If he is not found therein, the
court cannot acquire jurisdiction over his person and therefore cannot validly
try and decide the case against him.
b. XPN: *****An exception was laid down in Gemperle v. Schenker wherein a
non-resident was served with summons through his WIFE,334
i. who was a RESIDENT of the Philippines and
ii. who was his REPRESENTATIVE and ATTORNEY-IN-FACT in a
prior civil case filed by him;
iii. moreover, the second case was a mere offshoot of the first case.
Asiavest Limited vs. Court of Appeals
Extraterritorial service335
1. Requisites of extra-territorial service of summons:******
334
Q: Summons was issued by the MM Regional Trial Court and actually received on time by
defendant from his wife at their residence. The sheriff earlier that day had delivered the summons
to her at said residence because defendant was not home at the time. The sheriff’s return or proof
of service filed with the court in sum states that the summons, with attached copy of the
complaint, was served on defendant at his residence thru his wife, a person of suitable age and
discretion then residing therein. Defendant moved to dismiss on the ground that the court had no
jurisdiction over his person as there was no valid service of summons on him because the sheriffs
return or proof of service does not show that the sheriff first made a genuine attempt to serve the
summons on defendant personally before serving it thru his wife. Is the motion to dismiss meritorious?
What is the purpose of summons and by whom may it be served? Explain. (5%) (2004 Bar Question)
SUGGESTED ANSWER:
The motion to dismiss is not meritorious because the defendant actually received the
summons on time from his wife. *****Service on the wife was sufficient. (Boticano v. Chu, 148
SCRA 541 [1987D. It is the duty of the court to look into the sufficiency of the service. The sheriffs
negligence in not stating in his return that he first made a genuine effort to serve the summons on the
defendant, should not prejudice the plaintiff. (Mapa v. Court of Appeals, 214 SCRA 417 [1992]).
The purpose of the summons is to inform the defendant of the complaint filed against him and to
enable the court to acquire jurisdiction over his person. It may be served by the sheriff or his
deputy or any person authorized by the court.
ALTERNATIVE ANSWER: Yes. The motion to dismiss is meritorious. Substituted service
cannot be effected unless the sheriffs return shows that he made a genuine attempt to effect
personal service on the husband.
335
Bar 1989: When is extra-territorial service of summons proper? Answer:
a. The defendant is a non-resident;336 NB: it has been applied to PH

residents but temporarily out of PH;337
b. He is not found in the Philippines; and
c. The action against him is either in rem or quasi in rem.338
Extraterritorial service of summons, is proper when the defendant does not reside and is
not found in the Philippines and the action affects the personal status of the plaintiff or relates to,
or the subject of which is, property within the Philippines, in which the defendant has or claims a
lien or interest, actual or contingent, or in which the relief demanded consists, wholly or in part, in
excluding the defendant from any interest therein, or the property of the defendant has been attached
within the Philippines. (Sec. 17 of Rule 14). *****It is also proper when the defendant ordinarily
resides within the Philippines, but is temporarily out of it. (Sec. 18 of Rule 14)
336
In Asiavest vs CA (1998), since there was no proof on the existence of a specific Hong Kong law
pertaining to service of summons either in actions in rem or in personam, it was presumed that the
Hong Kong law on the matter is similar to the Philippine law (processual presumption). Accordingly,
since HERAS was not a resident of Hong Kong and the action against him was, indisputably,
one in personam, summons should have been personally served on him in Hong Kong. The
extraterritorial service in the Philippines was therefore invalid and did not confer on the Hong
Kong court jurisdiction over his person. It follows that the Hong Kong court judgment cannot
be given force and effect here in the Philippines for having been rendered without jurisdiction.
Even assuming that HERAS was formerly a resident of Hong Kong, he was no longer so in November
1984 when the extraterritorial service of summons was attempted to be made on him. Neither can we apply Section
16, which allows extraterritorial service on a resident defendant who is temporarily absent from
the country, because even if HERAS was considered as a resident of Hong Kong, the undisputed
fact remains that he left Hong Kong not only temporarily but for good.
337
[EXTRATERRITORIAL SERVICE] Service of summons by extraterritorial service is allowed
when the defendant or respondent
a. does not reside (in the country)
b. or is not found in the country
c. or is temporarily out of the country
338
Q: In Its complaint before the RTC, Singer (Phil.). Inc., alleged that it is a corporation
organized and existing under Philippine laws: that another corporation, with the corporate name
Singer, Inc. and organized under the law of the United States, had incurred obligations to several
foreign creditors whom it refuses to pay; that although Singer (Phil.) is a corporation separate and
distinct from Singer, Inc. and that Singer (Phil,). Inc. had no participation or liability whatsoever
regarding the transactions between Singer, Inc. and the creditors, said creditors, have been demanding
from Singer (Phil.). Inc. the payment of the obligations to them (creditors of Singer, Inc.). Singer
(Phil.). Inc. therefore, prayed for Injunctive relief against the creditors (whom it impleaded as the
defendants in the action) by way of enjoining the latter from making further demands on it for
payment of the obligations of Singer. Inc. to them (creditors.) The defendants are non-residents and
without business addresses in the Philippines but in the U.S. ***Consequently, Singer (Phil.), Inc.
asked for leave of court to effect extraterritorial service of summons pursuant to Sec. 17. Rule 14
of the Rules of Court. The trial court granted the motion. The defendants filed special appearances
and questioned the jurisdiction of the court over their persons. They contended that the court
cannot acquire jurisdiction over their persons because the action does not fall under any of the
situations authorizing extraterritorial service or summons. Is extraterritorial service of summons
proper? Why? (1993 Bar Question) Answer:
******No because it is only when the action affects the personal status of the plaintiff, or
any property in the Philippines in which defendants have or claim an interest, or which the plaintiff has
attached, that extraterritorial service of summons is proper. (Sec. 17 of Rule 14) In this case, the
action is purely an action for injunction, which is a personal action as well as an action in
2. ******If the action is in personam, this mode of service will not be

available.339 There is no extraterritorial service of summons in an action in
personam. *****Hence, extraterritorial service upon a nonresident in an action
for injunction which is in personam is not proper (Kawasaki Port Service Corp.
vs. Amores, G.R. No. 58340, July 16, 1991); Banco Do Brasil vs. CA, G.R. No.
121576-78, June 16, 2000).
3. Instances when extra-territorial service of summons is allowed:
a. The action affects the personal status of the plaintiff;
b. The action relates to, or the subject of which is the property within the
Philippines on which the defendant has or claims a lien or interest, actual or
contingent;340
personam and not an action in rem or quasi in rem. Hence, personal or substituted service of
summons is necessary in order to confer jurisdiction on the court. Extraterritorial service of
summons on defendants will not confer on the court jurisdiction or power to compel them to
obey its orders. [Kawasaki Port Services Corporation vs. Amores, 199 SCRA 230)
339
[] Extrajudicial service of summons **apply only where the action is in rem, that is, an action
against the thing itself instead of against the person, or in an action quasi in rem, where an
individual is named as defendant and the purpose of the proceeding is to subject his interest
therein to the obligation or loan burdening the property. The RATIONALE for this is that in in
rem and quasi in rem actions, jurisdiction over the person of the defendant is NOT A
PREREQUISITE TO CONFER JURISDICTION on the court provided that the court acquires
jurisdiction over the res. Velayo-Fong vs. Velayo, December 6, 2006
340
BAR 2016: Q: Tristan filed a suit with the RTC of Pasay against Arthur King and/or Estate of
Arthur King for reconveyance of a lot declared in the name of Arthur King under TCT No. 1234. The
complaint alleged that "on account Arthur King's residence abroad up to the present and the
uncertainty of whether he is still alive or dead, he or his estate may be served with summons by
publication." Summons was published and nobody filed any responsive pleading within sixty (60) days
therefrom. Upon motion, defendants were declared in default and judgment was rendered declaring
Tristan as legal owner and ordering defendants to reconvey said lot to Tristan. Jojo, the court-
designated administrator of Arthur King's estate, filed a petition for annulment of judgment before the
CA praying that the decision in favor of Tristan be declared null and void for lack of jurisdiction. He
claims that the action filed by Tristan is an action in personam and that the court did not acquire
jurisdiction over defendants Arthur King and/or his estate. On the other hand, Tristan claims that the
suit is an action in rem or at least an action quasi in rem. Is the RTC judge correct in ordering service of
summons by publication? Explain.
SUGGESTED ANSWER: Yes, the RTC judge is correct in ordering service of summons by
publication. Under S15 R14, extraterritorial service, which includes service by publication, may
be availed of in actions the subject of which is property within the Philippines in which the
defendant has or claims a lien or interest or in which the relief demanded consists in excluding
the defendant from any interest therein. Here the action for reconveyance has for its subject a real
property in the Philippines in the defendant’s name and in which the relief sought is to annul the
defendant’s title and vest it in the plaintiff. While Jojo is correct is saying that the action for
reconveyance is in personam (Republic v. CA, 315 SCRA 600, 606), the test of whether an action
is covered by S15 R14 is not its technical characterization as in rem or quasi in rem but
whether it is among those mentioned in S15 R14. (See Baltazar v. Court of Appeals, 168 SCRA 354,
363). (Jurist Review Center, Inc.)
c. The action in which the relief demanded consists, wholly or in part, in

excluding the defendant from any interest therein;
d. When the property of the defendant has been attached in the
Philippines.
4. Manner of service of summons in cases of extra-territorial service
a. With leave of court served outside the Philippines by personal service;
b. With leave of court served by publication in a newspaper of general
circulation, in which case a copy of the summons and order of court must also
be sent by registered mail341 to the last known address of defendant; or
c. *****Any other manner the court may deem sufficient (Sec. 15, Rule
14). EG: by registered mail.342
5. Specifics of the order granting such leave: it shall specify a reasonable time,
which shall not be less than sixty (60) days after notice, within which the defendant
must answer.
Service upon prisoners and minors

1. Service upon prisoners [Section 9]:
a. Applicability: When the defendant is a prisoner confined in a jail or
institution,
b. How? 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.
2. Service upon minors and incompetents [Section 10]
a. Applicability: When the defendant is a minor, insane or otherwise an
incompetent,
b. How? service shall be made
i. upon him personally and
ii. on his legal guardian if he has one, or if none, his guardian ad litem
whose appointment shall be applied for by the plaintiff.
iii. In the case of a minor, service may also be made on his father or
mother.
341
Q: TRUE or FALSE. Summons may be served by mail, (2009 Bar Question)
SUGGESTED ANSWER: FALSE. Rule 14 of the Rules of Court, on Summons, provide only
for serving Summons (a) to the defendant in person; or (b) if this is not possible within a reasonable
time, then by substituted service in accordance with Sec. 7 thereof; or (c) any of the foregoing two
ways is not possible, then with leave of court, by publication in accordance with same Rule.
ALTERNATIVE ANSWER: TRUE, but only in extraterritorial service under Sec. 15 of the
Rule on Summons where service may be effected “in any other manner the court may deem
sufficient".
342
*NB: In the case of Carriaga v. Malaya, (G.R. No. L-48375, August 13, 1986) summonses were sent
by registered mail to defendants who were residing abroad. The Court upheld the validity of the
service of summons and stressed that the **third mode of extraterritorial service was substantially
complied with in this case.
Service to juridical persons

1. Service upon entity WITHOUT juridical personality [Section 8]
a. Applicability: When persons associated in an entity without juridical
personality and they are sued under the name by which they are generally or
commonly known.
b. How? service may be effected:
i. upon all the defendants by serving upon any one of them, or
ii. *****upon the person in charge343 of the office or place of business
maintained in such name.
c. NB: such service shall not bind individually any person whose
connection with the entity has, upon due notice, been severed before the action
was brought.
2. Service upon DOMESTIC private juridical entity. [Section 11].
a. Applicability: When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a juridical personality.
b. How? service may be made on the
i. president,
ii. managing partner, (not on any other partner)
iii. general manager,
iv. corporate secretary, (not on any secretary)
v. treasurer, or (not on the cashier344 or cost accountant345)
vi. in-house counsel. (not on any other counsel)
******The enumeration is EXCLUSIVE.346 Service of summons on
343
Summons was served on "MCM Theater," a business entity with no juridical personality,
through its office manager at its place of business. Did the court acquire jurisdiction over MCM
Theater’s owners? (2011 BAR)
(A) Yes, an unregistered entity like MCM Theater may be served with summons through its
office manager.
(B) No, because MCM has no juridical personality and cannot be sued.
(C) No, since the real parties in interest, the owners of MCM Theater, have not been served with
summons.
(D) Yes since MCM, as business entity, is a de facto partnership with juridical personality.
344
Bar 1999: A sued XX Corporation (XXC), a corporation organized under Philippine laws, for
specific performance when the latter failed to deliver T-shirts to the former as stipulated in their
contract of sale. Summons was served on the corporation’s cashier and director. Would you consider
service of summons on either officer sufficient? Explain. (2%) SUGGESTED ANSWER: Summons
on a domestic corporation through its cashier and director are not valid under the present rules. (Sec.
11, Rule 14, Rules of Court.) They have been removed from those who can be served with summons
for a domestic corporation. Cashier was substituted by treasurer.
345
**Since the service was made on a COST ACCOUNTANT, the trial court did not validly
acquire jurisdiction, although the corporation actually received the summons. Green Star
Express Inc. vs Nissin-Universal Robina Corporation (2015)
346
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
anyone other than these people is not valid. NB: service upon an agent of a
corporation is not authorized,347 but constructive receipt is valid, i.e., through the
liaison officer of the corporate secretary.348
3. Service upon FOREIGN PRIVATE juridical entities. [Section 12, aa by A.M.
No. 11-3-6-SC, 15 March 2001]****
a. Applicability 1: When the defendant is a foreign private juridical entity
which has transacted business (registered) in the Philippines; How? service
may be made
i. on its resident agent designated in accordance with law for that
purpose, or,
ii. if there be no such agent, on the government official designated by
law to that effect, or
iii. on any of its officers or agents within the Philippines.
b. Applicability 2: If the foreign private juridical entity is not registered in
the Philippines or has no resident agent; How? service may, with leave of
court, be effected out of the Philippines through any of the following means:
a) By personal service coursed through the appropriate court in the
foreign country with the assistance of the Department of Foreign Affairs;
b) By publication once in a newspaper of general circulation in the
country where the defendant may be found and by serving a copy of the
summons and the court order by registered mail at the last known address of the
integrated with the corporation that such person will know what to do with the legal papers served
on him. Ellice Agro-Industrial Corp v. Young, November 21, 2012.
347
**Under the new Rules, service of summons upon an agent of the corporation is no longer
authorized. The designation of persons or officers who are authorized to accept summons for a
domestic corporation or partnership is now limited and more clearly specified in Section 11… The
phrase agent, or any of its directors is conspicuously DELETED in the new rule. x x x It should
be noted that even prior to the effectivity of the 1997 Rules of Civil Procedure, strict compliance with
the rules has been enjoined. The purpose is to render it REASONABLY CERTAIN that the
corporation will receive prompt and proper notice in an action against it or to insure that the
summons be served on a representative so integrated with the corporation that such person will
know what to do with the legal papers served on him. In other words, to bring home to the
corporation notice of the filing of the action. **Hence, service 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 is improper. Consequently, the trial court did not acquire jurisdiction over the
person of the petitioner. EB Villarosa vs Benito (1999)
348
**But, CONSTRUCTIVE RECEIPT is VALID: There was a valid and effective service of
summons upon petitioner corporation through its liaison officer who acted as the agent of the
corporate secretary. According to the sheriff, Abante proceeded to receive the summons and
accompanying documents only after receiving instructions to do so from Melinda Ang (petitioner
corporation's corporate secretary). Abante, in so receiving the summons, did so in
REPRESENTATION of Ang who, as corporate secretary, is one of the officers competent
under the Rules of Court to receive summons on behalf of a private juridical person. Thus, while it
may be true that there was no direct, physical handing of the summons to Ang, the latter could at
least be charged with having CONSTRUCTIVELY RECEIVED received the same, which
amounts to a valid service of summons. Nation vs RCBC (2015)
defendant;
c) *****By facsimile349 or any recognized electronic means that
could generate proof of service; or
d) By such other means as the court may in its discretion direct."
4. Service upon PUBLIC corporations. [Section 13]
a. Applicability1: When the defendant is the Republic of the Philippines;
How? service may be effected on the Solicitor General;
b. Applicability2: in case of a province, city or municipality, or like public
corporations; How? service may be effected
i. on its executive head, or
ii. on such other officer or officers as the law or the court may direct.
5. NB: The power of a corporation to sue and be sued is exercised by the board of
directors. The physical acts of the corporation, like the signing of documents,
can be performed only by natural persons duly authorized for the purpose by
corporate bylaws or by a specific act of the board. Ellice Agro-Industrial Corp v.
Young, November 21, 2012; Cesar v. Ricafort-Bautista 2006
349
Q: Circe filed with the RTC a complaint for the foreclosure of real estate mortgage against
siblings Scylla and Charybdis, co-owners of the property and co-signatories to the mortgage deed. The
siblings permanently reside in Athens, Greece. Circe tipped off [the] Sheriff Pluto that Scylla is on
a balikbayan trip and is billeted at the Century Plaza Hotel in Pasay City. Sheriff Pluto went to the
hotel and personally served Scylla the summons, but the latter refused to receive summons for
Charybdis as she was not authorized to do so. Sheriff Pluto requested Scylla for the email
address and fax number of Charybdis which the latter readily gave. Sheriff Pluto, in his return of
the summons, stated that "Summons for Scylla was served personally as shown by her signature on the
receiving copy of the summons. Summons on Charybdis was served pursuant to the amendment
of Rule 14 by facsimile transmittal of the summons and complaint on defendant's fax number as
evidenced by transmission verification report automatically generated by the fax machine
indicating that it was received by the fax number to which it was sent on the date and time
indicated therein." Circe, sixty (60) days after her receipt of Sheriff Pluto's return, filed a Motion to
Declare Charybdis in default as Charybdis did not file any responsive pleading. (2015)
a. Should the court declare Charybd is in default?
A: NO, the court should not declare Charybdis in default because there was no proper service
of summons. Section 12, Rule 14 of the Rules of Court applies only to a foreign private juridical
entity that is not registered in the Philippines and has no resident agent in the country, and not to
individuals (A.M. No. 11-3-6-SC, March 15, 2011). The service of summons by facsimile under
said rule is, therefore, defective.
A foreclosure of real estate mortgage is a quasi in rem action, thus, the court can render
judgments as long as it has jurisdiction over the res and any of the modes of extra-territorial
service of summons under Section 15 of Rule 14 is complied with prior leave of court. There is,
unfortunately, no showing in the problem that a prior leave of court was obtained before
resorting to extra-territorial service of summons; hence, the service of summons is defective.
[] Q: Scylla seasonably filed her answer setting forth therein as a defense that Charybdis
had paid the mortgage debt. On the premise that Charybdis was properly declared in default, what is
the effect of Scylla's answer to the complaint? Assuming that Charybdis was properly declared
in default, the court shall try the case against all the defendants upon the answer filed by Scylla,
and render judgment upon the evidence presented (Sec. 3[c], Rule 9).
Rules on the right of a foreign corporation to bring suit in PH courts

1. If it does business in the Philippines with the required license, it can sue before
Philippine courts on any transaction (Agilent Technologies v. Integrated Silicon,
G.R. No. 154618, April 14, 2004).
2. If it does business in the Philippines without a license, it cannot sue before the
Philippine courts (Id.).
3. If it is not doing business in the Philippines, it needs no license to sue
before Philippine courts on an isolated transaction or on a cause of action
entirely independent of any business transaction (Id.).
4. If it is without license to do business and is not doing business in the
Philippines is not disqualified from filing and prosecuting an action for unfair
competition and may be sued for acts done against a person or persons in
the Philippines, or may be sued in Philippine Courts.
5. If it does business in the Philippines without license, a Philippine citizen or entity
which has contracted with said corporation may be estopped from challenging the
foreign corporation’s corporate personality in a suit brought before Philippine
courts (Herrera, 2007).
Summons and preliminary attachment as applied to foreign corporations

1. The grant of the provisional remedy of attachment involves three stages [H.B.
Zachry Co. Int’l v. CA, 15 March 2011]:
a. first, the court issues the order granting the application;
b. second, the writ of attachment issues pursuant to the order granting the
writ; and
c. third, the writ is implemented.
2. ******For the initial two stages, it is NOT necessary that jurisdiction over
the person of the defendant should first be obtained. However, once the
implementation commences, it is required that the court must have acquired
jurisdiction over the person of the defendant for without such jurisdiction, the court
has no power and authority to act in any manner against the defendant. Any
order issuing from the Court will not bind the defendant.”
3. As applied to a foreign corporation [H.B. Zachry Co. Int’l v. CA]: The
enforcement of the preliminary attachment on 27 March 1990, although
simultaneous with the service of the summons and a copy of the complaint,
did not bind Zachry because the service of the summons was not validly
made. ******When a foreign corporation has designated a person to receive service
of summons pursuant to the Corporation Code, that designation is exclusive and
service of summons on any other person is inefficacious. The valid service
of summons and a copy of the amended complaint was only made upon it on 24
April 1990, and it was only then that the trial court acquired jurisdiction over
Zachry’s person. Accordingly, the levy on attachment made by the sheriff on 27 April
1990350 was invalid. However, the writ of preliminary attachment may be

validly served anew.
Proof of service351
1. Proof of service [Section 18]: How is proof of service of a summons made?
a. in writing
b. by the server and
c. shall set forth the manner, place, and date of service;
d. shall specify any papers which have been served with the process and
the name of the person who received the same; and
e. shall be sworn to when made by a person other than a sheriff or his deputy.
**Absence in the sheriff’s return of a statement about the impossibility of
personal service is not conclusive proof that the service is invalid. The
plaintiff may submit proof of prior attempts at personal service during the
hearing of any incident assailing the validity of the substituted service. Also, the
impossibility of service may be established by evidence.
2. Proof of service by publication [Section 19] If the service has been made by
publication, service may be proved:
a. by the affidavit of the printer, his foreman or principal clerk, or of the editor,
business or advertising manager,
b. to which affidavit a copy of the publication shall be attached and
c. 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.
3. PRIMA FACIE EVIDENCE OF THE FACTS IN THE CERTIFICATE: A
PROCESS server's certificate of service is PRIMA FACIE EVIDENCE of
the facts as set out in the certificate. Between the claim of non-receipt of
summons by a party against the assertion of an official whose duty is to
send notices, the latter assertion is fortified by the presumption that official
duty has been regularly performed. To overcome the presumption of regularity
of performance of official functions in favor of such Officers Return, the
evidence against it must be clear and convincing. Petitioner's bare allegation
that the statement in the Officers Return that she was personally served summons is
inaccurate is not sufficient. Velayo-Fong vs Velayo (2006)
3. Presumption of Regularity: Petitioner’s bare allegation that the statement in
the “Officer’s Return that she was personally served summons is inaccurate” is
not sufficient. A **PROCESS SERVER’S CERTIFICATE OF SERVICE IS PRIMA
350
(looks like the dates were reversed, but most likely the levy was due to a prior writ of attachment issued by the court)
351
Proof of service of summons shall be through the following, except : (2012 BAR)
a. writtenreturnofthesheriff;
b. affidavitofthepersonservingsummons;
c. affidavit of the printer of the publication;
d. written admission of the party served.
FACIE EVIDENCE of the facts as set out in the certificate. Between the claim
of non-receipt of summons by a party against the assertion of an official whose duty is to send
notices, the latter assertion is fortified by the PRESUMPTION that OFFICIAL
DUTY HAS BEEN REGULARLY PERFORMED. To overcome the presumption of
regularity of performance of official functions in favor of such Officer’s Return,
the evidence against it must be clear and convincing. Petitioner having been
unable to come forward with the requisite quantum of proof to the contrary, the presumption
of regularity of performance on the part of the process server stands. Velayo-Fong
vs. Velayo, December 6, 2006
———————————————————————————————
3.7. Motions [Rule 15]
3.7.1. Motions in general 229

a) Definition of a motion [Sec 1] 230
b) Motions versus pleadings 230
c) Contents and forms of motions 230
d) Notice of hearing and hearing of motions 230
e) Omnibus motion rule [Sec 8] 231
f) Litigated and ex parte motions 232
PRO-FORMA MOTIONS 234
3.7.2. Motions for bill of particulars [Rule 12] 235
a) Purpose of a bill of particulars and when applied for [Sec 1] 236
b) Actions of the court [Sec 2] 237
c) Compliance with the order [Sec 3] and effect of noncompliance [Sec 4] 238
d) Effect on the period to file a responsive pleading [Sec 5] 239
3.7.3. Motion to dismiss [MTD; Rule 16] 240
a) ******Grounds for MTD [Sec 1] 240
G1. [JN-defendant]: That the court has no jurisdiction over the person of the defending party;
241
G2. [JN-sm]: That the court has no jurisdiction over the subject matter of the claim; 242
G3. That venue is improperly laid; 242
G4. [Legal capacity: plaintiff]: That the plaintiff has no legal capacity to sue 243
G5. [Litis pendentia] That there is another action pending between the same parties for the same
cause; 243
G6a. [Res judicata] That the cause of action is barred by a prior judgment or by the statute of
limitations; 244
G6b. [Prescription] That the cause of action is barred by a prior judgment or by the statute of
limitations; 246
G7. [failure to state coa] That the pleading asserting the claim states no cause of action; 250
G8. [Civilly extinguished] That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished; 251
G9. [Unenforceable-SOF] That the claim on which the action is founded is unenforceable under the
provisions of the statute of frauds; 251
G10. [Condition precedent] That a condition precedent for filing the claim has not been complied
with. 251
b) Resolution of motion [Sec 3] 251
c) Remedies of plaintiff when the complaint is dismissed (MTD is granted) 251
d) Remedies of the defendant when MTD is denied Sec 4] 252
e) Effect of dismissal of complaint on certain grounds 252

f) When grounds pleaded as affirmative defenses [Sec 6] 253
g) Bar by dismissal [Sec 5] 253
h) Distinguished from demurrer to evidence under Rule 33 254
———————————————————————————————
3.7.1. Motions in general
a) Definition of a motion [Sec 1]

1. It is an application for relief other than by a pleading352
2. Kinds of motions
a. Motion EX PARTE – One which does not require that the parties be
heard and which the court may act upon without prejudicing the rights of the
other party;
b. LITIGATED motion – One which requires parties to be heard
before a ruling on the motion is made by a court (EG: motion to dismiss and
motion for summary judgment) (Riano, 2014);
c. PRO FORMA motion – One which does not satisfy the requirements
of the rules and one which will be treated as a motion intended to delay the
proceedings (Marikina Development Corporation v. Flojo, G.R. No. 110801,
December 8, 1995).
b) Motions versus pleadings

MOTION PLEADING
an application for relief a written statement of the respective claims and defenses of the
other than a pleading parties submitted to the court for appropriate judgment
may be in the form of a complaint, counterclaim, cross-claim, third-
party complaint, or complaint-in-intervention, answer or reply
c) Contents and forms of motions

1. Form of motions [Sec 2]
*GR: All motions shall be in writing
*XPN: except those made
a. in open court or
b. in the course of a hearing or trial.
*NB: Form. The Rules applicable to pleadings shall apply to written
motions so far as concerns caption, designation, signature, and other matters of form [Sec
10]
2. Content of motions [Sec 3]: A motion shall state
352
Q: True or False. A motion is a pleading. (2%) (2007 Bar Question) SUGGESTED ANSWER:
FALSE. A motion is not a pleading but a mere application for relief other than by a pleading
a. the relief sought to be obtained and

b. the grounds upon which it is based, and
c. if required by these Rules or necessary to prove facts alleged therein, shall be
accompanied by:
i. supporting affidavits and
ii. other papers
3. Motion for leave. [Sec 9]. A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted.
4. Motion for judgment
*GR: Not allowed.
*XPNs: Motion for:
a. Judgment on the pleadings;
b. Summary judgment; or
c. Judgment on demurrer to evidence.
d) Notice of hearing and hearing of motions

1. *****Three-Day Notice Rule
a. Applicability: Every written motion required to be heard and the notice of
the hearing thereof
b. GR: Service of the copy of motions should be made in such a manner as
shall ensure its receipt at least three (3) days before the hearing (Sec. 4, Rule
15), unless the court for good cause sets the hearing on SHORTER notice.
b. XPNs:353
i. Ex parte motions
ii. Urgent motions
iii. Motions agreed upon by the parties to be heard on shorter notice
or jointly submitted by the parties
iv. *****Motions for summary judgment which must be served at
least 10 days before its hearing (Riano, 2014)
v. Non-litigated motions
2. Contents of notice of hearing: It shall
a. be addressed to all parties concerned, and
b. specify the time and date of the hearing which must not be later than
ten (10) days after the filing of the motion (Sec. 5, Rule 15).
3. Hearing of motions: Every written motion shall be set for hearing by the
353
*****Note on the 3-DAY NOTICE RULE: It is NOT absolute. A liberal construction is
proper where the lapse in the literal observance of the rule has not prejudiced the
adverse party. [Presyler v Manila Southcoast, 2010: respondent received the notice of
hearing after the scheduled hearing, but it did not prejudice him since the hearing was
**reset 3 times with due notice to both parties). Why? Since the 3-day notice rule is for
fair play and to allow the other party a chance to prepare for the questions raised by
the motion. Example of a motion which doesn’t follow the 3-day rule: motion for
summary judgment—must be served 10 days before the hearing.
applicant except motions which the court may act upon without prejudicing the
rights of the adverse party (Sec. 4, Rule 15).
4. Notice of hearing [Sec 5]; 2. Rule on hearing of written motion [Sec 4]
a. GR: every written motion shall be set for hearing by the applicant
b. XPN: Except for motions which the court may act upon without
prejudicing the rights of the adverse party.
5. PROOF OF SERVICE NECESSARY
a. [] Sec. 6. Proof of service necessary. No written motion set for
hearing shall be acted upon by the court without proof of service
thereof.
b. What is the effect of lack of notice and proof of service? It is
nothing but a piece of paper filed with the court. It’s scrap.
c. *****Legal implication: it does not toll the running of the
period of appeal.354
6. Rule on Motion day [Sec 7]
a. GR: all motions shall be scheduled for hearing on Friday afternoons, or
if Friday is a non-working day, in the afternoon of the next working day.
b. XPN: Except for motions requiring immediate action.
7. HEARING REQUIRED:355 What motions should have a hearing?
a. Litigated motions, like motion for reconsideration, motion to
set aside order of default, preliminary injunction, temporary
restraining order (with exceptions)
b. These will substantially affect the adverse party
8. **Do you need notice of hearing in appellate courts? No. See Rule
49 and Rule 56. It would be superfluous.
e) Omnibus motion rule [Sec 8]

1. GR: a motion attacking a pleading, order, judgment, or proceeding shall include all
354
Q: The Regional Trial Court rendered judgment against ST, copy of which was received by his
counsel on February 28, 2000. On March 10, 2000, ST, through counsel, filed a motion for
reconsideration of the decision with notice to the Clerk of Court submitting the motion for the
consideration of the court. On March 15, 2000, realizing that the Motion lacked a notice of hearing,
ST’s counsel filed a supplemental pleading. Was the Motion for Reconsideration filed within the
reglementary period? Explain. (5%) (2000 Bar Question) SUGGESTED ANSWER:
Yes, because the last day for filing a motion for reconsideration was March 15 if February had
28 days or March 16 if February had 29 days. *****Although the original motion for
reconsideration was defective because it lacked a notice of hearing, the defect was cured on
time by its filing on March 15 of a supplemental pleading, provided the motion was set for hearing and
served on the adverse party at least three (3) days before the date of hearing. (Sec. 4, Rule 15. 199.7
Rules of Civil Procedure).
355
**Tip: It is the court which will conclude whether a motion is a litigious one or not, so
just put a notice of hearing on ALL motions. As long as it’s in the trial court (either
original or appellate capacity), you need a notice of hearing.
objections then available, and all objections not so included shall be **DEEMED
WAIVED.
2. XPN [Sec 1, Rule IX]: Situations when the court shall dismiss the claim; when
it appears from the pleadings or the evidence on record: [JN-LP-RJ-P]******
a. that the court has no jurisdiction over the subject matter [LACK OF
JN over SM]; NB: *****Hence, if the defendant raises lack of JN over the
person at a later time, such is deemed waived since it was not raised in a
MTD or in an Answer as it was a defense available at that time and it was not
pleaded.
b. that there is another action pending between the same parties for the same
cause, or [LITIS PENDENTIA]
c. that the action is barred by a prior judgment or [RES JUDICATA]
d. that the action is barred by statute of limitations
[PRESCRIPTION]356
3. Bar scenarios: Under omnibus motion rule, if the ground of improper
venue (say, due to residence of plaintiff) was not raised during a
previous motion to dismiss, it is deemed waived.357
356
The defendant in an action for sum of money filed a motion to dismiss the complaint on the
ground of improper venue. After hearing, the court denied the motion. In his answer, the defendant
claimed prescription of action as affirmative defense, citing the date alleged in the complaint when
the cause of action accrued. May the court, after hearing, dismiss the action on ground of
prescription? (2011 BAR)
(A) Yes, because prescription is an exception to the rule on Omnibus Motion.
(B) No, because affirmative defenses are barred by the earlier motion to dismiss.
(C) Yes, because the defense of prescription of action can be raised at anytime before the finality of
judgment.
(D) No, because of the rule on Omnibus Motion.
357
Charisse, alleging that she was a resident of Lapu- Lapu City, filed a complaint for damages
against Atlanta Bank before the RTC of Lapu-Lapu City, following the dishonor of a check she drew
in favor of Shirley against her current account which she maintained in the bank’s local branch. The
bank filed a Motion to Dismiss the complaint on the ground that it failed to state a cause of action,
but it was denied. It thus filed an Answer. (Bar 2010)
a. In the course of the trial, Charisse admitted that she was a US citizen residing in Los
Angeles, California and that she was temporarily billeted at the Pescado Hotel in Lapu-Lapu City,
drawing the bank to file another motion to dismiss, this time on the ground of improper
venue, since Charisse is not a resident of Lapu-Lapu City. Charisse opposed the motion citing the
"omnibus motion rule." Rule on the motion: The bank’s second motion to dismiss which is
grounded on improper venue, should be denied. The **improper venue of an action is deemed
waived by the bank’s filing an earlier motion to dismiss without raising improper venue as an
issue, and more so when the bank filed an Answer without raising improper venue as an issue after
its first motion to dismiss was denied. Under the “omnibus motion rule” (Rule 15, Sec. 8, Rules of Court)
which governs the bank’s motion to dismiss, such motion should include all objections then
available; otherwise, all objections not so included shall be deemed waived.
b. Suppose Charisse did not raise the "omnibus motion rule," can the judge proceed to resolve the
motion to dismiss? Explain: Yes, the judge can proceed to resolve the motion to dismiss, because the
ground raised therefor became known to the movant only during the trial, such that it was only then
that the objection became available to him.
f) Litigated and358 ex parte motions

1. Litigated motion: It is a motion which affects the substantial rights of the
parties and is one made with notice to the adverse party to give an
opportunity to oppose before a ruling on the motion is made by the court. A
HEARING IS REQUIRED (Sec. 4, Rule 15). EG:
a. Motion to dismiss;
b. Motion for judgment on the pleadings and
c. Summary judgment.
2. Non-compliance with service of motion and notice of hearing: The motion
will be considered as a MERE SCRAP OF PAPER which the court has no right
to receive and the trial court has no authority to act upon. Service of a copy of a
motion containing a notice of the time and the place of hearing of that motion is a
mandatory requirement, and the failure of movants to comply with these
requirements renders the motions fatally defective (Vette Industrial Sales Co.,
Inc. v. Cheng, G.R. Nos. 170232-170301, December 5, 2006).
3. EX-PARTE motion: It is one which does not require that the parties be
heard and which the court may act upon without prejudicing the rights of the
other party. This kind of motion is not covered by the hearing requirement of
the Rules (Riano, 2014, citing Sec. 4, Rule 15; Republic v. Diaz-Enriquez, G.R.
No. 181458, March 20, 2013).
It is made to the court in behalf of one or the other of the parties to the
action, in the absence and usually without knowledge of the other party or
c. Suppose the judge correctly denied the second motion to dismiss and rendered judgment in favor of
Charisse, ordering the bank to pay her P100,000 in damages plus legal interest. The judgment became
final and executory in 2008. To date, Charisse has not moved to execute the judgment [this is
Bar 2010]. The bank is concerned that its liability will increase with the delay because of the interest on
the judgment award. As counsel of the bank, what move should you take?: As counsel of the bank, I
shall recommend to the bank as judgment obligor, to make a tender of payment to the judgment
obligee and thereafter make a consignation of the amount due by filing an application therefore
placing the same at the disposal of the court which rendered the judgment. (Arts. 1256 and 1258, Civil Code.)
[] Art. 1256. If the creditor to whom tender of payment has been made refuses without
just cause to accept it, the debtor shall be released from responsibility by the consignation of the
thing or sum due.
[] Art. 1258. Consignation shall be made by depositing the things due at the disposal
of judicial authority, before whom the tender of payment shall be proved, in a proper case, and the
announcement of the consignation in other cases.
The consignation having been made, the interested parties shall also be notified
thereof.
358
Sps. Carlos vs. Rivera 2006: Section 4 lays the general rule that all written motions shall be set
for hearing by the movant, except the non-litigated motions or those which may be acted upon
by the court without prejudicing the rights of the adverse party. *****These ex parte motions
include a motion for extension of time to file pleadings, motion for extension of time to file an
answer, and a motion for extension of time to file a record on appeal. In Manila Surety and Fidelity
Co., Inc. v. Bath Construction and Company, we ruled that a notice of time and place of hearing is
mandatory for motions for new trial or motion for reconsideration… [it would be] but a mere
scrap of paper [if] it does not comply with Sections 4 and 5, Rule 15.
parties. (Riano, 2014).

**They are usually permissible in procedural matters and also in situations
and under circumstances of emergency; and an exception to a rule requiring
notice is sometimes made where notice of the resulting delay might tend to
defeat the objective of the motion (Sarmiento v. Zaratan, G.R No. 167471,
February 5, 2007). EG: a motion to set the case for a pre-trial
4. LITIGATED vs. EX PARTE MOTIONS
LITIGATED MOTION EX PARTE MOTION
affects the substantial rights of the parties and is one made made to the court in behalf of one or
with notice to the adverse party to give an opportunity to the other of the parties to the action,
oppose before a ruling on the motion is made by the in the absence and usually without
court. A hearing is required (Sec. 4, Rule 15) knowledge of the other party or
parties. (Riano, 2014).
For non-compliance with service of motion and notice of does not require that the parties be
hearing, the motion will be considered as a mere scrap of heard and which the court may act
paper which the court has no right to receive and the trial upon without prejudging the rights
court has no authority to act upon. This is a mandatory of the other party. This kind of
requirement, and the failure of movants to comply with motion is not covered by the
these requirements renders the motions fatally defective hearing requirement of the Rules
(Vette Industrial Sales Co., Inc. v. Cheng, Dec. 5, 2006) (Republic v. Diaz-Enriquez, March 20,
2013).
EG: MTD; a motion for judgment on the pleadings and a EG: motion to set the case for pre-
summary judgment trial
**NB: Ex-parte motions are usually permissible in procedural matters and

also in situations and under circumstances of emergency; and an exception to a
rule requiring notice is sometimes made where notice of the resulting delay might
tend to defeat the objective of the motion (Sarmiento v. Zaratan, February 5,
2007).
PRO-FORMA MOTIONS
1. Definition: It is that which does not comply with the rules on motion and is
considered as one filed merely to delay the proceedings (Marikina
Development Corp., v. Flojo, December 8, 1995). *****Hence, non-compliance
with the requirements of the Rules would reduce the motion to a mere pro-
forma motion. EG: Filing a motion without the required affidavits.359
2. Effect of filing such motion: it is not entitled to judicial cognizance, and
does not stop the running of the period for filing the requisite pleading
(Cruz v. CA, August 29, 2002). *****IOW, a pro-forma motion does not toll the
reglementary period of appeal (Sec. 2, Rule 37)
359
Non-compliance with the requirements of the Rules would reduce the motion to a mere pro-forma
motion. A pro forma motion is one which does not satisfy the requirements of the rules and one which
will be treated as a motion intended to delay the proceeding (Marikina Development Corporation v.
Flojo, supra.).
3. Grounds which make the MR pro forma

a. It was a *****second MR; or
b. It did not comply with the rule that a motion must specify the
findings and conclusions alleged to be contrary to law or not supported by the evidence; or
c. It failed to substantiate the alleged errors; or
d. It merely alleged that the decision in question was contrary to law; or
e. The adverse party was not given due notice thereof (Riano, 2014).
4. IOW, When is a motion “pro forma”? ****When there is FAILURE to
a. Serve a copy to the other party;
b. Include a notice of hearing;
c. Conform with the 3-day notice rule;
d. Conform with the 10-day rule
5. Do you need a certification for non-forum shopping in motions?
*****No. It’s not an initiatory pleading.
————————————————
3.7.2. Motions for bill of particulars [Rule 12]
MOTION FOR A BILL OF PARTICULARS [Rule XII]

1. Definition: It is a more definite statement consisting of amplification or
more particularized outline of a pleading, and being in the nature of a more
specific allegation of the facts recited in the pleading (Sec. 3, Rule 12; Herrera,
2007)
2. Review: Three options available to the defendant upon receipt of the
complaint**
a. Filing of a motion for bill of particulars;
b. Filing of a motion to dismiss
c. Filing of an answer to the complaint (Riano, 2014).
[] Compare these with the options of the accused in a criminal case: Options
of the accused before arraignment******
a. Question the validity of his arrest: the legality of the warrant of arrest,
lack of Preliminary Investigation (PI) or irregularities in the PI [Sec 26, R114]
b. File a motion for bill of particulars to help him plead property and
prepare for trial [vs. Civil: to enable him to prepare a responsive pleading];
c. Motion to suspend arraignment [Sec 11, R116]: i) accused is suffering
from an unsound mental condition; ii) existence of a prejudicial question; iii)
petition for review of the prosecutor’s resolution is pending at the DOJ or Office
of the President (but suspension here shall not exceed 60 days from filing of the
petition with the reviewing office). ****There is a fourth reason which is not in
this section, but is found under Sec 1, R117 which is a Motion to Quash (MTQ).
a) Purpose of a bill of particulars and when applied for [Sec 1]

1. What it is: ******this is a motion from a party for a definite statement or for a
bill of particulars of any matter which is not averted with SUFFICIENT
DEFINITENESS OR PARTICULARITY to enable him PROPERLY to
PREPARE his responsive pleading.
2. PURPOSE: Its purpose is to **AID IN THE PREPARATION OF A
RESPONSIVE PLEADING. An action cannot be dismissed on the ground that
the complaint is vague or definite (Galeon v. Galeon, G.R. No. L-30380, February
28, 1973). NB: ******The purpose of the motion is not to enable the movant to
prepare for trial. Where the movant is to enable him to prepare for trial, the appropriate
remedy is to avail of the discovery procedures from Rules 23 to 29 and even of a
pretrial under Rule 18 (Riano, 2014).
3. *****Bar 2003—when available: BEFORE RESPONDING TO A
PLEADING, a party may move for a DEFINITE STATEMENT or for a bill
of particulars of any matter which is not averred with sufficient definiteness
or particularity to enable him properly to prepare his responsive pleading.
When filed:
a. Before responding to a pleading
b. If the pleading is a reply, the motion must be filed within ten (10) days
from service thereof.
*It may be filed either through a separate or an amended pleading (Sec.
3, Rule 12).
4. Contents of the motion: Such motion shall
a. point out the defects complained of,
b. the paragraphs wherein they are contained, and
c. the details desired.
5. Instances when a bill of particulars is allowed:
a. When the allegations are indefinite and uncertain that the nature cannot
be understood therefrom;
b. When the allegations are so vague that they do not appear therefrom in
what capacity a party sues or is issued;
c. When the allegations are uncertain as to time,360 place, quantity, title,
360
Q: An information was filed, in the proper court against Arturo charging him with theft of 300
blocks of industrial aluminum worth P999.000.00 allegedly committed “on or about the period from
January 1986 to December 23,1991. Arturo filed a motion to quash the information on the ground
that it was grossly insufficient and fatally defective since there is such a great gap in the inclusive period
of the alleged commission of the offense. He is, in effect, being deprived of a reasonable opportunity
to defend himself. In resolving the motion to quash, what basic and ancillary rulings should the
court make so that it can extend to the accused optimum and adequate relief. Discuss fully. (1992 Bar
Question) Suggested Answer:
The court may grant the motion to quash on the ground that the allegation of the time of
commission of the offense is defective because the period from January 1986 to December 23. 1991
[TOM: the grounds on motion to quash are exclusive and this does not seem to belong to any of them;
person, or any other matter required to be pleaded with certainty;

d. When the allegations are faulty in duplication, setting out two grounds
for a single claim;
e. When denials are so indefinite and uncertain that it cannot be
understood what is denied and what is admitted;
f. Particulars of details of computation of bank account were allowed;
technicalities are frowned upon; or
g. Conclusions of law – deceit, machination, false pretenses,
misrepresentations and threats are conclusions of law and mere allegations
thereof without a statement of the facts to which such terms have references are
not sufficient (Herrera, 2007).
6. When bill of particulars is improper—It is improper on matters:
a. Specified with particularity;
b. Within party’s knowledge;
c. Irrelevant to allegations of complaint; or
d. Which are more properly ascertainable by discovery (Herrera, 2007).
7. Who can avail of motion for bill of particulars: BOTH PARTIES can avail of
the Motion for Bill of Particulars. *****It is a motion that applies to any
pleading which in the perception of the movant **contains MATTERS WHICH
ARE NOT ALLEGED WITH SUFFICIENT DEFINITENESS OR PARTICULARITY
(Riano, 2014).
8. Requirements of bill of particulars—Aside from the requirements for a
motion as set forth in Rule 15, the motion shall point out:
a. The defects complained of;
b. The paragraphs wherein they are contained;
c. The details desired (Sec. 1, Rule 12)
b) Actions of the court [Sec 2]

[] Upon the filing of the motion,361 the clerk of court must immediately bring it to
the attention of the court which may either:
see notes under CrimPro], or almost six years, is too indefinite to give the accused an opportunity to
prepare-his defense; or the court may order the amendment of the information or the submission
of a bill of particulars so as to allege the actual date or at least as near to it as possible in order
not to surprise and substantially prejudice the accused.
361
X filed a motion for Bill of Particulars, after being served with summons and a copy of the
complaint However, X's motion did not contain a notice of hearing. The court may therefore: (2012
BAR)
a. requiretheclerkofcourttocalendarthemotion.
b. motu proprio dismiss the motion for not complying with Rule15.
c. allow the parties the opportunity to be heard.
d. returnthemotiontoX'scounselforamendment.
Alternative Answer:
c. allow the parties the opportunity to be heard.
1. *****deny or grant it outright,362 or

2. allow the parties the opportunity to be heard.
c) Compliance with the order [Sec 3] and effect of noncompliance [Sec 4]

1. Rule on compliance with the order granting the motion, either in whole or in part:
a. GR: compliance must be effected within ten (10) days from notice of the
order,
b. XPN: unless a different period is fixed by the court.
2. How to file the bill of particulars or a more definite statement ordered by the
court:
a. either in a separate or in an amended pleading,
b. serving a copy thereof on the adverse party.
3. Effect of non-compliance; either the order is not obeyed, or in case of insufficient
compliance:363 the court may**
a. order the striking out of the pleading or the portions thereof to
which the order was directed or
b. make such other order as it deems just.
4. If plaintiff is disobedient, his complaint will be stricken off and dismissed364
(Sec. 3, Rule 17);
5. If defendant is disobedient, his answer will be stricken off and his
counterclaim dismissed, and he will be declared in default upon motion of the
plaintiff (Sec. 4, Rule 17; Sec. 3, Rule 9).
362
[] Bar 2008: Q: Within the period for filing a responsive pleading, the defendant filed a motion for
bill of particulars that he set for hearing on a certain date. However, the defendant was surprised to
find on the date set for hearing that the trial court had already denied the motion on the day of its
filing, stating that the allegations of the complaint were sufficiently made.
a. Did the judge gravely abuse his discretion in acting on the motion without waiting for the
hearing set for the motion? No. Sec. 2, Rule 12 authorizes the court to either deny or grant said
motion OUTRIGHT or allow the parties an opportunity to be heard. ****The COURT IS NOT
MANDATED TO CONDUCT A HEARING.
b. If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars,
****can the trial judge dismiss the case if the plaintiff does not comply with the order? Yes. Sec.
4, Rule 12 authorizes the court to order the striking out of the pleading affected, hence the
dismissal of the complaint. To the same end is the provision of Sec. 3, Rule 17 when the plaintiff fails
to comply for no justifiable cause with any order of the court or with the Rules.
363
(2003 Bar Question) What is the effect of non-compliance with the order of a bill of particulars?
SUGGESTED ANSWER: If the order is not complied with, 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. (Sec. 4 of Rule 12)
364
Q: If the judge grants the motion and orders the plaintiff to file and serve the bill of particulars, can
the trial judge dismiss the case if the plaintiff does not comply with the order? (3%) (2008 Bar
Yes, the trial judge can dismiss the case if the plaintiff failed to comply with the court’s
order to file and serve the needed bill of particulars. Section 4, Rule 12 of the Rules of Court authorizes
the court to order the striking out of the pleading affected, hence the dismissal of the complaint.
To the same end is the provision of Section 3, Rule 17 of the Rules when plaintiff fails to comply for
no justifiable cause with any order of the court or with the Rules.
6. NB: A bill of particulars becomes part of the pleading for which it is

intended [Sec 6]
d) Effect on the period to file a responsive pleading [Sec 5]

1. The moving party may file his responsive pleading within the remaining
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.
2. When to count the period: after service of the bill of particulars or of a more
definite pleading, or after notice of denial of his motion
————————————————
3.7.3. Motion to dismiss [MTD; Rule 16]
PRELIMINARIES ON MTD
1. Who files the MTD?
*GR: A motion must be filed by a party thereto.
******XPNs:
a. Those cases where the court may dismiss a case motu proprio (i.e. lack
of jurisdiction over the subject matter; litis pendentia; res judicata; and
prescription) (Sec. 1, Rule 9: JN-LP-RJ-P: same as omnibus motion rule, supra).
NB: although they are similar, the grounds for filing of MTD are provided infra.
b. Failure to prosecute for an unreasonable length of time (Sec. 3, Rule 17);
c. Rule on Summary Procedure (Sec. 4, 1991 Revised Rule on Summary
Procedure).
2. Types of dismissal of actions:
a. Motion to dismiss before answer under Rule 16;
b. Motion to dismiss under Rule 17 (Upon notice by plaintiff; upon motion
of plaintiff; due to fault of plaintiff);
c. Demurrer to evidence after plaintiff has completed the presentation of
his evidence under Rule 33; and
d. Dismissal of an appeal.
3. Hearing of motion. [Sec 3].
a. What happens at the hearing of the motion? The parties shall submit their
arguments on the questions of law and their evidence on the questions of
fact involved except those not available at that time.
b. What if the case goes to trial? The evidence presented during the
hearing shall AUTOMATICALLY be part of the evidence of the party
presenting the same.
4. When filed?
*GR: Within the time for but before filing the answer to the complaint or
pleading asserting a claim.
*****XPNs: Even after an answer has been filed, the defendant can still
file a motion to dismiss, with leave of court, on the following grounds (first four
are the same as in omnibus motion rule, supra)

a. Lack of jurisdiction over the subject matter of the claim;
b. Litis pendentia;
c. Res judicata;
d. Prescription of action; or
e. Where evidence that would constitute a ground for dismissal is
discovered during the trial.
5. Kinds of dismissal in civil procedure:
a. MTD by the defendant (Rule 16);
b. MTD by the plaintiff (Rule 17); Also covers failure to
prosecute, which is another form of MTD;
c. Demurrer to evidence
6. When should a motion to dismiss be filed? Before filing the answer
to the complaint or pleading asserting a complaint. This can be done by
any defending party
—————————————
a) ******Grounds for MTD [Sec 1]

*****NB: The enumeration is exclusive.
1. [JN-defendant]: That the court has no jurisdiction over the person of the
defending party; NB: Look into the proper service of summons or voluntary
appearance
2. [JN-sm]: That the court has no jurisdiction over the subject matter of the
claim; NB: Check the corresponding law.
3 That venue is improperly laid;
4. [Legal capacity: plaintiff]: That the plaintiff has no legal capacity to sue;
5. [Litis pendentia] That there is another action pending between the same
parties for the same cause;
6. [Res judicata] That the cause of action is barred by a prior judgment or by the
statute of limitations;
7. [failure to state coa] That the pleading asserting the claim states no cause of
action;
8. [Civilly extinguished] That the claim or demand set forth in the plaintiff's pleading
has been paid, waived, abandoned, or otherwise extinguished;
9. [Unenforceable-SOF] That the claim on which the action is founded is
unenforceable under the provisions of the statute of frauds; and
10. [Condition precedent] That a condition precedent for filing the claim has not
been complied with.
—————————————————
Detailed explanations of the grounds

G1. [JN-defendant]: That the court has no jurisdiction over the person of
the defending party;
1. Note that lack of JN over the person of the defendant can be waived
if not raised on time vs. lack of JN over the subject matter which may
be used for a motion to dismiss even on appeal.
2. How?
a. For the plaintiff: the court acquires jurisdiction over his person
by the filing of the plaintiff’s complaint. Residency or citizenship is not a
requirement for filing a complaint, because plaintiff thereby submits to the
jurisdiction of the court.365
b. For the defendant: Look into the proper service of summons
or voluntary appearance. If they are not properly made, the court does
not acquire JN over their persons.
G2. [JN-sm]: That the court has no jurisdiction over the subject matter of
the claim;
1. Check the corresponding law. Be familiar with the jurisdictional
amounts per court.
365
Amorsolo, a Filipino citizen permanently residing in New York City, filed with the RTC of
Lipa City a Complaint for Rescission of Contract of Sale of Land against Brigido, a resident of
Barangay San Miguel, Sto. Tomas, Batangas. The subject property, located in Barangay Talisay,
Lipa City, has an assessed value of P19,700.00. Appended to the complaint is Amorsolo’s verification
and certification of non-forum shopping executed in New York City, duly notarized by Mr. Joseph
Brown, Esq., a notary public in the State of New York. Brigido filed a motion to dismiss the
complaint on the following grounds: (2009)
a. The court cannot acquire jurisdiction over the person of Amorsolo because he is not a
resident of the Philippines? The first ground raised lacks merit because ******jurisdiction over the
person of a plaintiff is acquired by the court upon the filing of plaintiff’s complaint therewith.
Residency or citizenship is not a requirement for filing a complaint, because plaintiff thereby
submits to the jurisdiction of the court.
b. The RTC does not have jurisdiction over the subject matter of the action involving real
property with an assessed value of P19,700.00; exclusive and original jurisdiction is with the Municipal
Trial Court where the defendant resides? The second ground raised is also without merit because the
subject of the litigation, *****Rescission of Contract, is incapable of pecuniary estimation the
exclusive original jurisdiction to which is vested by law in the Regional Trial Courts. **The nature of
the action renders the assessed value of the land involved irrelevant.
c. The verification and certification of non-forum shopping are fatally defective because
there is no accompanying certification issued by the Philippine Consulate in New York, authenticating that Mr.
Brown is duly authorized to notarize the document? The third ground raised questioning the validity of
the verification and certification of non-forum shopping for lack of certification from the Philippine
Consulate in New York, authenticating that Mr. Brown is duly authorized to notarize the document, is
likewise without merit. *****The required certification alluded to, pertains to official acts, or records
of official bodies, tribunals, and public officers, whether of the Philippines or of a foreign country: the
requirement in Sec. 24, Rule 132 of the 1997 Rules refers only to paragraph (a) of Sec. 29 which does
not cover notarial documents. *****It is enough that the notary public who notarized the verification and
certification of non-forum shopping is clothed with authority to administer oath in the State or foreign
country.
2. The court may motu proprio dismiss a complaint at any time when it appears
from the pleadings or the evidence on record that lack of jurisdiction exists. Heirs
of Julao v. De Jesus, September 29, 2014. NB: after dismissal, plaintiff can refile the
case in the court which has jurisdiction over the case.366
3. Case scenario: In an action to recover, the property must be identified. the property
must be identified, and the plaintiff must rely on the strength of his title and not
on the weakness of the defendant's claim, otherwise, petitioner is not entitled to
an action to recover property.367
G3. That venue is improperly laid;368
G4. [Legal capacity: plaintiff]: That the plaintiff has no legal capacity to sue
1. The issue of the plaintiff’s lack of legal capacity to sue cannot be raised for the
first time on appeal where the defendant dealt with the former as a party in the proceeding.
2. Check the CAPACITY to sue:
a. Natural person – must be age of majority; If minor or
incompetent, must be assisted;
b. Corporation – must be duly organized and existing in the laws
of country where it was organized;
366
Which of the following grounds for dismissal invoked by the court will NOT PRECLUDE the
plaintiff from refiling his action? (2011 BAR)
(A) Res judicata.
(B) Lack of jurisdiction over the subject matter.
(C) Unenforceability under the Statutes of Fraud.
(D) Prescription.
367
In an action to recover, the property must be identified. Article 434 of the Civil Code states that "[i]n an action to
recover, the property must be identified, and the plaintiff must rely on the strength of his title and not
on the weakness of the defendant's claim." The plaintiff, therefore, is duty-bound to clearly
identify the land sought to be recovered, in accordance with the title on which he anchors his right of
ownership. Failure of the plaintiff to establish the identity of the property claimed is fatal to his
case. If he failed to describe the location, the area, as well as the boundaries thereof, and no survey plan
was presented by petitioners to prove that respondent spouses actually encroached upon the
petitioners' property, petitioners are not entitled to an action to recover property. Heirs of Julao v. De
Jesus, September 29, 2014
368
A and B, both residents of Batangas, entered into a Contract of Lease over a parcel of land
belonging to B, located in Calapan, Mindoro. A filed a complaint before the Regional Trial
Court, sitting in Batangas City, for the rescission of the Lease Contract of the land in Mindoro. B
filed a Motion to Dismiss on the ground that the Batangas Court did not have jurisdiction over the
subject matter, the land being located in Mindoro. B however did not allege improper venue in his
motion. Decide with reasons. Answer:
Motion to dismiss is denied. The fact that the land is located in Mindoro does not affect
the jurisdiction of the Regional Trial Court sitting in Batangas City. The proper venue of the action
is the Regional Trial Court in Mindoro. *****However, since B did not object to the improper
venue in his motion, that ground is deemed waived. (Sec. 4 of Rule 4)
c. Attorney-in-fact – look into the scope of authority.369
G5. [Litis pendentia] That there is another action pending between the
same parties for the same cause;
1. Requisites of Litis Pendentia (PRR; more details, infra)370
a. Identity of the parties or at least such parties representing the same
interest in both actions;
b. Identity of rights asserted and reliefs prayed for, being founded on the
same facts; and
c. Identity with respect to the two [actions], such that any judgment that
may be rendered in the pending case would amount to res judicata in the other
case (Lim v. Vianzon, August 3, 2006).
******In short, a. Same parties; b. Same interests; c. Same rights
asserted; d. Same relief prayed for
2. *****It could be pleaded as res judicata if the pending case has
been disposed of.
3. ****** Litis pendentia and forum shopping are tests of forum shopping.
Forum shopping is NOT a ground for MTD. You usually use litis
pendentia or res judicata when forum shopping or splitting cause of
action occurs. (Read with Rule 2, Sec 4). EG: there is no forum
shopping if in an independent civil action for damages based on quasi-
delict, the pendency of a criminal action related to the latter (which
includes damages arising from the delict) was not mentioned. Why? The
Rules of Criminal Procedure allow the separate civil action for damages
arising from physical injuries to proceed independently of the criminal
action.371
369
(a) A complaint entitled “A as Attorney -In- Fact for X, plaintiff, versus B, Defendant” was filed
to recover a car in the possession of B. A’s Power of Attorney expressly authorized him (A) to sue
for the recovery of the car. B files a Motion to Dismiss the Complaint for lack of capacity to sue.
Decide the Motion. Explain. Answer:
Motion to dismiss is denied. ******A has legal capacity to sue, but is not the real party in
interest. The ground of the motion to dismiss should have been that the complaint states no
cause of action because it was filed by “A as Attorney-in- fact for X.” *****The complaint should
have been filed in the name of X as plaintiff. (Arroyo vs. Granada, 18 Phil. 484)
370
Litis pendentia exists when the following requisites are present:
a. identity of the parties in the two actions;
b. substantial identity in the causes of action and in the reliefs sought by the parties; and
c. the identity between the two actions should be such that any judgment that may be
rendered in one case, regardless of which party is successful, would amount to res judicata in the
other. Umale v. Canoga Park Development Corporation, 654 SCRA 162
371
X was driving the dump truck of Y along Cattleya Street in Sta. Maria, Bulacan. Due to his negligence,
X hit and injured V who was crossing the street. Lawyer L, who witnessed the incident, offered his legal services to
V. V, who suffered physical injuries including a fractured wrist bone, underwent surgery to screw a
metal plate to his wrist bone. On complaint of V, a criminal case for Reckless Imprudence Resulting in
[] Also, a remedy against splitting cause of action is to file a MOTION TO

DISMISS, on the ground of LITIS PENDENTIA, or if the first action has already been
finally terminated, on the ground of RES JUDICATA.
4. If there are two pending cases, what case will be dismissed?
a. GR: the later case.
b. XPN: the first case may be the one dismissed if the later action
is the more appropriate vehicle for the ventilation of the issues
between the parties. (UCPB v Beluso, 2007).
Serious Physical Injuries was filed against X before the Municipal Trial Court (MTC) of Sta. Maria. Atty.
L, the private prosecutor, did not reserve the filing of a separate civil action. V subsequently filed a complaint for
Damages against X and Y before the Regional Trial Court of Pangasinan in Urdaneta where he resides.
In his "Certification Against Forum Shopping," V made no mention of the pendency of the
criminal case in Sta. Maria. (Bar 2010)
a. Is V guilty of forum shopping? No, V is not guilty of forum shopping because the case the
Sta. Maria, Bulacan, is a criminal action filed in the name of the People of the Philippines, where civil
liability arising from the crime is deemed also instituted therewith; whereas the case filed in Urdaneta,
Pangasinan, is a civil action for quasi-delict in the name of V and against both X and Y for all
damages caused by X and Y to V, which may be beyond the jurisdiction of MTC. **Hence, the tests of
forum shopping, which is res judicata or litis pendencia, do not obtain here. Moreover,
substantive law (Art. 33 Civil Code) and Sec. 3, Rule III, Revised Rules of Criminal Procedure,
expressly authorize the filing such action for damages entirely separate and distinct from the
criminal action.
b. Instead of filing an Answer, X and Y move to dismiss the complaint for damages on the
ground of litis pendentia. Is the motion meritorious? Explain: No, the motion to dismiss base on
alleged litis pendencia is without merit because there is **no identity of parties and subject matter
in the two cases. Besides, Art. 33 of the Civil Code and Rule III, Sec. 3 of the Rules of Criminal
Procedure authorize the separate civil action for damages arising from physical injuries to
proceed independently.
c. Suppose only X was named as defendant in the complaint for damages, may he move for the
dismissal of the complaint for failure of V to implead Y as an indispensable party? No, X may not move
for dismissal of the civil action for damages on the contention that Y is an indispensable party who
should be impleaded. *****Y (owner of the truck driven by X) is not an indispensable party but
only a necessary party. ******Besides, nonjoinder and misjoinder of parties is not a ground for
dismissal of actions (Rule 3, Sec. 11, Rules of Court).
d. X moved for the suspension of the proceedings in the criminal case to await the
decision in the civil case. For his part, Y moved for the suspension of the civil case to await the
decision in the criminal case. Which of them is correct? Explain: **Neither of them is correct. Both
substantive law (Art. 33 of the Civil Code) and procedural law (Rule III, Sec. 3, Rules of Criminal
Procedure) provide for the two actions to proceed independently of each other, therefore, no
suspension of action is authorized.
e. Atty. L offered in the criminal case his affidavit respecting what he witnessed during the
incident. X’s lawyer wanted to cross-examine Atty. L who, however, objected on the ground of
lawyer-client privilege. Rule on the objection: The objection should be overruled. *****Lawyer-
client privilege is not involved here. The subject on which the counsel would be examined has been
made public in the affidavit he offered and thus, no longer privileged, aside from the fact that it is
in respect of what the counsel witnessed during the incident and not to the communication made by the
client to him or the advice he gave thereon in his professional capacity.
G6a. [Res judicata] That the cause of action is barred by a prior judgment
or by the statute of limitations;
1. Requisites372 of res judicata (RJ): (more details, infra) [Bar 2000/2010]
a. [Final judgment] The former judgment must be final;
b. [By a court having jurisdiction over the subject matter and the
parties] The court which rendered it has jurisdiction over the subject matter
and the parties;373
c. [Must be on the merits (with trial, considering the evidence.
Exception would be judgment on the pleadings, order of dismissal –
these are still res judicata)] Judgment must be on the merits; and
d. [Same parties, subject matter and cause of action] There must
be identity of parties, subject matter and causes of action. EG: if only the subject
matter is the same, there is no RJ. 374
2. Res judicata as a ground for dismissal is based on two grounds, namely:

a. public policy and necessity, which makes it to the interest of the State that
there should be an end to litigation – Rei publicae Ut Sit Finis Litium (Latin:
in the interest of society as a whole, litigation must come to an end); and
372
Requisites of Res Judicata
a. Former judgment or order must be final and executory;
b. Court has jurisdiction over subject matter and parties;
c. Former judgment or order was on merits;
d. Identity of parties, subject matter, and cause of action between first and second action
(TEST: determine identity of cause of action) (Felsinc v Province of Batangas, G.R. No. 168557,
February 19, 2007).
373
Q: Evelyn filed a complaint for a sum of money against Joan but the complaint was later dismissed
for failure to prosecute “within a reasonable length of time.” Thereafter, Evelyn filed another case
based on the same facts against Joan. Joan moved to dismiss the same on the ground that the cause of
action therein is barred by a prior judgment (res judicata). Evelyn opposed the motion claiming that
res judicata has not set in since Joan was not served with summons and the complaint in the first
case was earlier dismissed, so that the trial court never acquired jurisdiction over her person and,
consequently, over the case. How would you decide the motion of Joan? Explain. (1989 Bar Question)
Answer:
The motion to dismiss is denied. *****One of the essential requisites of res judicata is
jurisdiction over the parties. Inasmuch as Joan was not served with the summons in the first
case which was earlier dismissed, the court did not acquire jurisdiction over her person and,
hence, the dismissal was without prejudice to the filing of another action against her. (Republic
Planters Bank vs. Molina, September 28,1988)
374
There is NO RES JUDICATA in the present case. Petitioner Club Filipino, Inc. filed the illegal
strike because members of CLUFEA allegedly disrupted petitioner Club Filipino, Inc.’s business when they staged a
strike without complying with the requirements of the law. For their part, respondents filed the illegal
dismissal case to question the validity of petitioner Club Filipino, Inc.’s retrenchment program. Although there
is no res judicata, the actions have the same subject matter. The SUBJECT MATTER of an action
is “the matter or thing from which the dispute has arisen.” Both the illegal strike and illegal
dismissal cases involve the dismissal of respondents. In respondents’ action for illegal dismissal,
respondents were found to have been dismissed by virtue of a valid retrenchment
program. The NLRC then ordered that they be paid separation pay based on the parties’ collective
bargaining agreement. Club Filipino, Inc. v. Bautista, January 14, 2015
b. the hardship on the individual of being vexed twice for the same cause
– Nemo Debet Bis Vexari Pro Una Et Eadem Causa (Latin: No-one shall be
tried or punished twice in regards to the same event. (Fels, Inc. v. Prov. of
Batangas, February 19, 2007).
3. What is "res judicata in prison grey"? [Bar]
4. Two Aspects375 of Res Judicata: Distinguish bar by prior judgment from
conclusiveness of judgment. (Bar 1997)
a. Bar by Prior Judgment or "ESTOPPEL BY VERDICT":376 it refers to
the effect of a judgment as a bar to the prosecution of a second action upon
the same claim, demand or cause of action;377 if a right, fact or matter is
necessarily involved in the prior judgment rendered on the merits of the case, it
cannot be re-litigated between the parties and their privies. EG: When one
commenced a suit to collect on a promissory note, he waives his right to
375
Distinguish between conclusiveness of judgment and bar by prior judgment. (2011 BAR)
(A) Conclusiveness of judgment bars another action based on the same cause; bar by prior judgment
precludes another action based on the same issue.
(B) Conclusiveness of judgment bars only the defendant from questioning it; bar by prior judgment
bars both plaintiff and defendant.
(C) Conclusiveness of judgment bars all matters DIRECTLY adjudged; bar by prior judgment
precludes all matters that MIGHT HAVE BEEN adjudged.
(D) Conclusiveness of judgment precludes the filing of an action to annul such judgment; bar by prior
judgment allows the filing of such an action.
376
It is the effect of a judgment as a bar to the prosecution of a second action upon the same claim,
demand or cause of action (Sps. Rasdas v. Estenor, G.R. No. 157605, December 13, 2005).
Any right, fact or matter in issue directly adjudicated or necessarily involved in the
determination of an action before a competent court in which a judgment or decree is rendered on the
merits is conclusively settled by the judgment therein and cannot again be litigated between the parties
and their privies whether the claim or demand, purpose or subject matter of the two suits is the same
or not (Prudential Bank v. Mauricio, G.R. No. 183350, January 18, 2012).
377
Q: “A”, the surviving husband of “B” executed in favor of “C” a deed entitled “Contract of
Sale a Retro” over a certain parcel of land registered under the Torrens System in which the owner is
described as “A, married to B.” Subsequently, “A” sued “C” for reformation of the contract,
alleging that what was agreed upon was really a mortgage and not a sale a retro. A’s complaint was
dismissed for failure to prosecute, however, and the dismissal became final. A year later, the
children of “A” and “B” sued “C” for the annulment of the Contract of sale a Retro, alleging that the
subject piece of land was acquired by their parents during their marriage, hence their father had
no right to include in the sale the children's interest in the property as heirs of their mother, such
children not having consented to the sale. “C" moved to dismiss the complaint on the ground of
bar by former judgment. Resolve the motion to dismiss. Explain. (1987 Bar Question) Answer:
Motion to dismiss denied. *****There is no bar by former judgment because there is no
identity of causes of action. The cause of action of the children of “A” and “B” is different from the
cause of action of “A”. “A" had no right to sell the parcel of land inasmuch as the same was the
conjugal property of “A" and “B". “A” could legally sell only his conjugal share of said property and
could not legally sell the conjugal share of his deceased wife which was inherited by their children
without their consent.
foreclose the mortgage on the same property, otherwise, it means splitting a cause
of action.378
b. Bar due to Conclusiveness of Judgment or the rule of auter action
pendant:379 facts and issues actually and directly resolved in a former suit
cannot again be raised in any future case between the same parties, even if the
latter suit may involve a different cause of action.380 In short, it bars the re- litigation of
particular facts or issues in another litigation between the same parties on a
different claim or cause of action. EG: the final judgment in the Registration
Cancellation Case (trademark) is conclusive on the particular facts and issues
that are determinative of a later case on the same trademark.
5. Case scenarios on res judicata:
a. A warehouseman should incorporate in his complaint for interpleader
his claim for storage fees and advances, the amounts of which are obviously
determinable at the time of the filing of the complaint. They are part of his cause
of action which he may not split.381
378
A purchased a lot from B for P1,500,000.00. He gave a down payment of P500,000.00, signed a
promissory note payable thirty days after date, and as a security for the settlement of the obligation,
mortgaged the same lot to B. When the note fell due and A failed to pay, B commenced suit to
recover from A the balance of P1,000,000.00. After securing a favorable judgment on his claim, B
brought another action against A before the same court to foreclose the mortgage. A now files a
motion to dismiss the second action on the ground of bar by prior judgment. Rule on the Motion. (Bar
1999):
The motion to dismiss should be granted. When B commenced suit to collect on the
promissory note, he waived his right to foreclose the mortgage. B split his cause of action.
379
thelawdictionary.org: Another action pending. A species of plea in abatement. 1 Chit. PI. 454
380
It ordains that issues actually and directly resolved in a former suit cannot again be raised in
any future case between the same parties involving a different cause of action. It has the effect of
preclusion of issues only (Sps. Rasdas v. Estenor, G.R. No. 157605, December 13, 2005).
[] Superior vs. Kunnan (a trademark infringement case): Under the concept of res judicata by
conclusiveness of judgment, a final judgment or decree on the merits by a court of competent
jurisdiction is conclusive of the rights of the parties or their privies in all later suits on points and
matters determined in the former suit. *****Stated differently, facts and issues actually and directly
resolved in a former suit cannot again be raised in any future case between the same parties, even
if the latter suit may involve a different cause of action. This second branch of the principle of res judicata bars
the re- litigation of particular facts or issues in another litigation between the same parties on a
different claim or cause of action.
Because the Registration Cancellation Case and the present case involve the same parties,
litigating with respect to and disputing the same trademarks, we are bound to examine how one
case would affect the other. In the present case, even if the causes of action of the Registration
Cancellation Case (the cancellation of trademark registration) differs from that of the present case
(the improper or unauthorized use of trademarks), the final judgment in the Registration
Cancellation Case is nevertheless conclusive on the particular facts and issues that are
determinative of the present case.
381
Raphael, a warehouseman, filed a complaint against V Corporation, X Corporation and Y Corporation to
compel them to interplead. He alleged therein that the three corporations claimed title and right
of possession over the goods deposited in his warehouse and that he was uncertain which of
them was entitled to the goods. After due proceedings, judgment was rendered by the court
declaring that X Corporation was entitled to the goods. The decision became final and executory.
b. Does a previous final judgment denying a petition for declaration of

nullity on the ground of psychological incapacity bar a subsequent petition
for declaration of nullity on the ground of lack of marriage license?: YES, it is
tantamount to **RES JUDICATA, since there is only one cause of action,
which is the declaration of nullity of marriage but two different grounds, i.e.,
psychological incapacity and lack of marriage license. He cannot split the cause of
action.382 Note that in the 2002 Bar, the suggested answer is the opposite.383
Raphael filed a complaint against X Corporation for the payment of P100,000.00 for storage
charges and other advances for the goods. X Corporation filed a motion to dismiss the complaint on
ground of res judicata. X Corporation alleged the Raphael should have incorporated in his complaint for
interpleader his claim for storage fees and advances that for his failure he was barred from interposing
his claim. Raphael replied that he could not have claimed storage fees and other advances in his
complaint for interpleader because he was not yet certain as to who was liable therefor. Resolve the motion with
reasons. (Bar 2005)
The motion to dismiss should be granted. **Raphael should have incorporated in is
complaint for interpleader his claim for storage fees and advances, the amounts of which were
obviously determinable at the time of the filing of the complaint. They are part of Raphael’s cause of
action which he may not split. Hence, when the warehouseman asks the court to ascertain who among
the defendants are entitled to the goods, he also has the right to ask who should pay for the storage
fees and other related expenses. The filing of the interpleader is available as a ground for
dismissal for the second case. (Sec.4, Rule2) It is akin to a compulsory counterclaim which, if not set
up, shall be barred. (Sec. 2, Rule 9 of the ROC; Arreza vs. Diaz, G.R. No. 133113, August 30, 2001)
ALTERNATIVE SUGGESTED ANSWER: The motion to dismiss should not be granted.
Raphael not being a party to the case cannot file a counter complaint. A complaint for interpleader
which is a special civil action is merely an action for the parties to interplead among themselves.
The claim for storage fees is a separate and distinct cause of action. It is an ordinary action for
collection which cannot be joined in a special civil action. (Sec. 5(b) Rule 2)
382
HE CANNOT SPLIT THE CAUSE OF ACTION. A party cannot divide the grounds for
recovery. A plaintiff is mandated to place in issue in his pleading, all the issues existing when the suit
began. A lawsuit cannot be tried piecemeal. He is not at liberty to split up his demands, and prosecute
it by piecemeal or present only a portion of the grounds upon which a special relief is sought and leave
the rest to the presentment in a second suit if the first fails. There would be no end to litigation if such
piecemeal presentation is allowed.
In short, once an option has been taken and a case is filed in court, the parties must ventilate
all matters and relevant issues therein. The losing party who files another action regarding the same
controversy will be needlessly squandering time, effort and financial resources because he is barred by
law from litigating the same controversy all over again.
383
Rolando filed a petition for declaration of the nullity of his marriage to Carmela because of alleged
psychological incapacity of the latter. After trial, the court rendered judgment dismissing the petition
on the ground that Rolando failed to prove the psychological incapacity of his wife. The judgment having
become final, Rolando filed another petition, this time on the ground that his marriage to Carmela had
been celebrated without a license. Is the second action barred by the judgment in the first? Why?
(Bar 2002) No. The **second action is not barred by the judgment in the first because they are
different causes of action. The first is for annulment of marriage on the ground of psychological
incapacity under Article 36 of the Family Code, while the second is for the declaration of nullity of the
marriage in view of the absence of a basic requirement, which is a marriage license. (Arts. 9 & 35 [3],
Family Code) **They are different causes of action because the evidence required to prove them are
not the same. (Pagsisihan vs. CA, 95 SCRA 540 [1980] and other cases)
c. *****Note that res judicata is not a defense in an action for support

even if the first case was dismissed with prejudice on a joint motion to dismiss. This is in the
nature of a compromise of the right to support which is prohibited by law.384
d. A judicial compromise has the effect of res judicata and is
immediately executory and is not appealable. (2012 BAR)
G6b. [Prescription385] That the cause of action is barred by a prior

judgment or by the statute of limitations;
1. Real actions over immovables: 30 years (but if acquired with good faith and just
title, only 10 years to acquire ownership);
2. Real actions over movables: 8 years (but if acquired with good faith and just
title, only 4 years to acquire ownership);
3. Mortgage action; Written contract; Obligation created by law; Judgment: 10
years
4. Oral contract; Quasi-contract: 6 years
[] TOM: The Court ruled in 2006 [Mallion v. Alcantara, October 31, 2006] that there is already
res judicata because it would otherwise be tantamount to splitting the one cause of action (declaration
of nullity of the marriage).
384
AB, as mother and in her capacity as legal guardian of her legitimate minor son, CD, brought action
for support against EF, as father of CD and AB’s lawfully wedded husband. EF filed his answer
denying his paternity with counterclaim for damages. Subsequently, AB filed a manifestation in
court that in view of the denial made by EF, it would be futile to pursue the case against EF. AB
agreed to move for the dismissal of the complaint, subject to the condition that EF will
withdraw his counterclaim for damages. AB and EF filed a joint motion to dismiss. The court
dismissed the case with prejudice. Later on, minor son CD, represented by AB, filed another
complaint for support against EF. EF filed a motion to dismiss on the ground of res judicata. Is res
judicata a valid ground for dismissal of the second complaint? Explain your answer. (2000) No, res
judicata is not a defense in an action for support even if the first case was dismissed with prejudice on a joint
motion to dismiss. The plaintiff’s mother agreed to the dismissal of the complaint for support in view of
the defendant’s answer denying his paternity with counterclaim for damages. This was in the **nature
of a compromise of the right to support which is prohibited by law. (Art, 2035, Civil Code; De Asis v.
Court of Appeals, 303 SCRA 176 [1999])
385
Q: The accused filed a motion to quash the information on two grounds, to wit, the facts charged
do not constitute an offense and there are averments in the formation which, if true, would constitute
a legal justification. The motion was denied. Eventually, the accused was convicted. He appealed to the
Court of Appeals. The new defense counsel discovered that the information was filed on a Monday
and that the last day for the filing of the information actually fell on the preceding Sunday. Had the
offense prescribed? If it had, could the defense invoke for the first time on appeal as error, the trial
court's non-dismissal of the information on the ground of prescription? (1987 Bar Question)
Answer: Yes. The offense had prescribed. *****Where the last day for the filing of an
information falls on a Sunday or legal holiday, the period of prescription cannot be extended up
to the next working day as prescription automatically sets in. (Yapdiangco vs. Buencamino. 122
SCRA 713)
Yes. The defense may invoke for the first time on appeal the non-dismissal of the
information on the ground of prescription, inasmuch as under the 1985 Rules on Criminal Procedure
extinction of criminal action or liability, which includes prescription, is not deemed waived by failure
to move to quash on that ground. (Sec. 8 Rule 117)
5. Injury to the rights of the plaintiff; Quasi-delict: 4 years

6. Forcible entry; Unlawful detainer; defamation: 1 year
7. All others not fixed by other laws: 5 years
G7. [failure to state coa] That the pleading asserting the claim states no
cause of action;
*for the discussion of this ground, proceed to “failure to state cause of action”
under “cause of action”, supra.
G8. [Civilly extinguished] That the claim or demand set forth in the
plaintiff's pleading has been paid, waived, abandoned, or otherwise
extinguished;
[] bar to re-filing
G9. [Unenforceable-SOF] That the claim on which the action is founded is

unenforceable under the provisions of the statute of frauds;
G10. [Condition precedent] That a condition precedent for filing the claim
has not been complied with.
1. Condition precedent not complied with. EG:
a. Failure to refer to katarungang pambarangay (waivable, not
jurisdicitional);
b Earnest efforts to reach a compromise;
c. Exhaustion of administrative remedies.
2. Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio
City a complaint for annulment of sale against Henry. Marcos and Henry both
reside in Asin Road, Baguio City, while Mariano resides in Davao City.
Henry filed a motion to dismiss the complaint on the ground of prematurity for
failure to comply with the mandatory barangay conciliation. Resolve the motion
with reasons. (2009)
———————————-
b) Resolution of motion [Sec 3]386

1. Three (3) courses of action by the court after the hearing; the court may:******
a. dismiss the action or claim,
b. deny the motion, or
386
After a hearing on a Motion to Dismiss, the court may either dismiss the case or deny the same or:
(2012 BAR)
a. deferresolutionbecausethegroundreliedupon1snotindubitable.
b. order amendment of the pleading
c. conduct a preliminary hearing
d. Noneoftheabove.
c. order the amendment of the pleading.

2. NB: The court shall not defer the resolution of the motion for the reason that
the ground relied upon is not indubitable.387 In every case, the resolution shall state
clearly and distinctly the reasons therefor.
3. ****Can the court say, “the MTD is dismissed for lack of merit”? NO. Because
the Rules provide that the specific reason for the grant or denial has to be
indicated—set forth the legal reason for the dismissal for the grant or denial,
otherwise, it’s cavalier. Hence, in a sense the court order on the action is treated
like a judgment [Riano].
—————————————
c) Remedies of plaintiff when the complaint is dismissed (MTD is granted)

[] i.e., the MTD was granted, and so, the dismissal is final. For the remedy,
distinguish WON the dismissal is with prejudice (i.e., you cannot refile the
complaint, i.e., it is final) or without prejudice (i.e., the order of dismissal is not a
bar to the refiling of the complaint).******
1. If the dismissal is without prejudice: the plaintiff may re-file the complaint. He
may also file a petition for certiorari under Rule 65 if there is GADALEJ.
2. ****If the dismissal is with prejudice—the plaintiff may file an appeal (Riano,
2014). This covers “bar by dismissal”, infra
**When the order granting the motion to dismiss was a final order
completely disposing the case as it leaves nothing more for the trial court to do in the
action, it truly called for an appeal, instead of certiorari, as the correct remedy.
——————————
d) Remedies of the defendant when MTD is denied Sec 4]

1. When shall movant file his Answer if the motion is denied? Within the balance
of the period (see table, supra) to which he was entitled at the time of serving his
motion, but not less than five (5) days in any event; NB: When is such period
reckoned? It is computed from his receipt of the notice of the denial.
2. Is appeal a remedy for the denial of the motion?388 NO. The order denying a
387
Miriam-Webster on indubitable: too evident to be doubted; unquestionable.
[] Q: Plaintiff filed a complaint for damages against defendant with the court. Defendant
moved to dismiss the complaint on the ground that it states no cause of action. The court, after
hearing, issued an order deferring the resolution of the motion to dismiss until the trial since the
ground therefore does not appear to be indubitable. Do you agree with the ruling of the court?
Explain. (1996 Bar Question) Answer:
No. because whether or not the complaint states a cause of action is clear from the
allegations of the complaint and deferring the resolution of the motion to dismiss because the ground
therefore is not indubitable is not proper. (Foster Parents Plan vs. Demetriou, 142 SCRA 505)
388
******An order denying a motion to dismiss is merely interlocutory. The normal remedy is to file
an answer and interpose the ground as an affirmative defense, go to trial and appeal from the
adverse judgment. However, if the denial is tainted with grave abuse of discretion amounting to lack of
MTD is only an interlocutory order (i.e., it does not terminate the case), which
is not appealable [Sec 1, Rule 41]. NB: File an MR first. Then petition for
certiorari or prohibition or mandamus under Rule 65.389
3. What if the pleading is ordered to be amended instead? He shall file his
answer within the period prescribed (see table, supra). When is such period
reckoned?
*GR: It is counted from service of the amended pleading,
*XPN: unless the court provides a longer period.
—————————————
e) Effect of dismissal of complaint on certain grounds

1. The complaint cannot be refiled if the MTD is based on the following, i.e., the
dismissal is with prejudice: see section on “bar by dismissal”
2. The complaint can be refiled if the MTD (and upon compliance with the
requirements to remedy the defect) is based on the following, i.e., the dismissal is
without prejudice: all the rest of the grounds, EG:
a. improper venue—refile it to proper court;
b. lack of JN over the subject matter—refile to the court with JN. But can
you appeal? Yes, because it is a dismissal with prejudice. But Rule 40, Sec 8:
dismissal on the ground based on lack of JN.
c. That the court has no jurisdiction over the person of the defending party;
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 pleading asserting the claim states no cause of action;
g. That a condition precedent for filing the claim has not been complied
with.
—————————————
f) When grounds pleaded as affirmative defenses [Sec 6]

1. What if no motion to dismiss has been filed? Any of the grounds for
dismissal (supra) may be pleaded as an affirmative defense in the answer.390
jurisdiction, the remedy is certiorari and prohibition (Emergency Loan Pawnshop v. CA, G.R. No.
129184, February 28, 2001).
389
*Where the judgment or final order is not appealable, Rule 41 declares that “the aggrieved party
may file an appropriate special civil action under Rule 65. The remedy would, therefore, be certiorari,
prohibition or mandamus, whichever is proper under the circumstances. This remedy must be
predicated upon an allegation that the denial of the motion was tainted with grave abuse of
discretion amounting to lack of jurisdiction.
*In case the remedy chosen is mandamus, there must be a showing that the court unlawfully
neglected the performance of an act which the law specifically enjoins (Riano, 2014).
390
[] Bar 1998: A, a resident of Lingayen, Pangasinan sued X, a resident of San Fernando, La Union
in the RTC of Quezon City for the collection of a debt of P1 Million, X did not file a motion to
2. Court action: In the discretion of the court, a preliminary hearing may be had
thereon as if a (timely) motion to dismiss had been filed.
3. **Effect of the dismissal of the complaint under this section: It shall be
without prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer, i.e., the dismissal is limited to the
complaint—it does not affect the counterclaim that is already impleaded/interposed
(this is a new rule). According to Riano, a compulsory counterclaim is dismissed,
but not a permissive counterclaim: same rule as Rule 17, Sec 3 (on Dismissal of
Actions).
4. A motion to dismiss is **not a responsive pleading. It is subject to the
Omnibus Motion Rule since it must raise all objections available at the time of
the filing thereof.
————————————-
g) Bar by dismissal [Sec 5]

1. Instances when a complaint can no longer be re-filed after the court grants a
motion to dismiss (BAR BY DISMISSAL)
a. Cause of action is barred by prior judgment (Res judicata);
b. Cause of action is barred by the statute of limitations (Prescription);
c. Claim or demand has been paid, waived, abandoned, or otherwise
extinguished; and
d. Claim is unenforceable under the statute of frauds.
****Remedy of (a-d): In the four instances mentioned, the remedy would be
to appeal the dismissal.
COMPLAINT CAN NO LONGER BE RE-FILED XPNs TO OMNIBUS MOTION RULE
1. Res judicata 1. Res judicata

2. Prescription 2. Prescription
3. Extinguishment of the claim 3. Litis pendentia
4. Unenforceability under Statute of Frauds 4. Lack of jurisdiction over the subject matter
**Compare these with cases where the Court can motu proprio dismiss the
action [Sec 1, Rule 9 for the first 4]]
i. lack of JN over the subject matter (can be refiled)
dismiss for improper venue but filed his answer raising therein improper venue as an affirmative defense. He
also filed a counterclaim for Php80,000.00 against A for attorney’s fees and expenses for litigation. X
moved for a preliminary hearing on said affirmative defense. For his part, A filed a motion to dismiss the
counterclaim for lack of jurisdiction. Rule on the affirmative defense of improper venue. A: There is
improper venue. The case is for a sum of money which is a personal action. It must be filed in the
residence of either the plaintiff, which is in Pangasinan, or of the defendant, which is in San Fernando,
La Union (Sec. 2, Rule 4). The fact that it was not raised in a motion to dismiss does not matter
because the rule that if improper venue is not raised in a motion to dismiss it is deemed waived was
removed from the 1997 Rules of Civil Procedure. The new Rules provide that ******if no motion to
dismiss has been filed, any of the grounds for dismissal may be pleaded as an affirmative
defense in the answer. (Sec 6 of Rule 16)
ii. litis pendentia (same as bar by dismissal)

iii. res judicata (same as bar by dismissal); and
iv. prescription (same as bar by dismissal)
v. Prior to the transmittal of the original record or the record on
appeal to the appellate court, the trial court may motu proprio or on motion dismiss
the appeal for having been taken out of time (Sec. 13, Rule 41) or for non-payment
of the docket and other lawful fees on time.
vi. Motu Proprio denial of the Petition for Review by the SC: a. The
appeal is without merit; b. Prosecuted manifestly for delay; or c. That the
questions raised therein are too unsubstantial to require consideration (Sec. 5, Rule
45)
****Note that the court cannot dismiss the case motu proprio on the
following cases:
i. improper venue;
ii. the court cannot MP declare the defendant in default
2. A complaint may be re-filed after it was dismissed on the OTHER grounds
and upon compliance with the requirements to remedy the defect.**
a. GR: Dismissal on these grounds is without prejudice.
*Remedy: It can be re-filed; no appeal— but Rule 65 can
be invoked if there is GADALEJ [cf. Rule 41, Sec1]
b. XPN (bar to re-filing): PURE: Prescription; Unenforceable
under Statute of frauds; Res judicata; Extinguished claim or demand
*Remedy: appeal [Sec 5]
3. What’s the effect of dismissal on the ground of failure to state a
cause of action?
a. A complaint should not be dismissed for failure to state a
cause of action if the defect may be corrected by amendment.
b. But, if the plaintiff cannot or does not amend the complaint,
the dismissal operates as an adjudication upon the merits, unless,
otherwise ordered by the court. (Failure to Comply with order of court,
Rule 17, Sec 3)
c. A dismissal because the cause of action had not yet accrued at
the time the complaint was filed is not a bar to a subsequent action
after the cause of action accrues.
—————————————
h) Distinguished from demurrer to evidence under Rule 33

MTD DTE
When within the time for but prior only after the plaintiff has completed the presentation
to the filing of the answer of of his evidence
to file
the defending party
MTD DTE
Who any defending party against only by the defendant against the complaint of the
files whom a claim is asserted in plaintiff
the action
Ground The 10 grounds enumerated That upon the facts and the law, the plaintiff has shown
s in Rule 16; Grounded on no right to relief; Based on insufficiency of evidence
preliminary objections
If The defendant may file his The defendant may present his evidence. Denial is not
responsive pleading, or else he appealable (interlocutory)
denied
may be declared in default
If plaintiff may appeal or if The complaint may NOT be filed. The remedy of the
granted subsequent case is not barred, he plaintiff is to appeal from the dismissal; If granted, but
may re-file the complaint on appeal the order of dismissal is reversed, the
defendant loses his right to present evidence
* A motion to dismiss generally partakes of the nature of a demurrer which

hypothetically admits the truth of the factual allegations made in a complaint
(Peltan Dev., Inc. v. CA, G.R. No. 117029, March 19, 1997). However, it is only
limited to all material and relevant facts which are well pleaded in the
complaint (De Dios v. Bristol Laboratories, G.R. No. L-25530, January 29, 1974).
———————————————————————————————
3.8. Dismissal of actions [Rule 17]
3.8.1. Dismissal upon NOTICE by plaintiff; two-dismissal rule [Sec 1] 257

3.8.2. Dismissal upon MOTION by plaintiff; effect on existing counterclaim [Sec 2] 257
3.8.3. Dismissal due to the fault of plaintiff [Sec 3] 259
3.8.4. Dismissal of counterclaim, cross-claim or third-party complaint [Sec 4] 261
———————————————————————————————
3.8.1. Dismissal upon NOTICE by plaintiff; two-dismissal rule [Sec 1]

1. May the plaintiff dismiss his own complaint? YES.
a. How? by filing a notice of dismissal;391
b. When? at any time BEFORE service of the answer or of a motion for
summary judgment;392 if there is none, before the introduction of evidence at
the trial or hearing.
c. Court action upon filing of such notice: the court shall issue an order
CONFIRMING the dismissal.
2. It is a MATTER OF RIGHT. *****The dismissal as a matter of right ceases
when an answer or a motion for summary judgment is served on the plaintiff
and not when the answer or motion is filed with the court. Thus, if a notice of
dismissal is filed by the plaintiff **even after an answer has been filed in court
but before the responsive pleading has been served on the plaintiff, the notice
of dismissal is still a matter of right.
*When notice of dismissal is executory: It is **executory as of the date
the notice is filed by the plaintiff and not the date the court issues the order
confirming the dismissal because such dismissal by the plaintiff, if filed before an
answer or a motion for summary judgment has been served upon him, is a matter
of right (Riano, 2014).
3. Effect of the dismissal
a. GR: A dismissal is without prejudice, i.e., the complaint can be re-filed
b. XPNs:
i. The notice of dismissal by the plaintiff provides that the dismissal is
391
Q: Before any answer on motion for summary judgment could be filed by the defendant, the
plaintiff filed notice of dismissal of his complaint. ******The trial court simply noted the dismissal.
Is the case considered dismissed. (1989 Bar Question)
Answer: Yes, because the rule merely requires the filing of a notice of dismissal and does
not require an order of the court dismissing the case. (Sec. 1 of Rule 17)
392
A complaint may be dismissed by the plaintiff by filing a notice of dismissal:
a. Atanytimeafterserviceoftheanswer.(2012BAR)
b. At anytime before a motion of summary judgment is filed.
c. At the pre-trial.
d. Beforethecomplaintisamended.
with prejudice; or
ii. The plaintiff has once dismissed in a competent court an action
based on or including the same claim393 (TWO-DISMISSAL RULE394) (Sec. 1, Rule
17)
iii. Even where the notice of dismissal does not provide that it is with
prejudice but it is premised on the fact of payment by the defendant of the
claim involved (Serrano v. Cabrera, G.R. No. L-5189, September 21, 1953).
4. Counterclaim? Since there is no answer yet filed by the adverse party, no
counterclaim is recoverable.
5. More on the Two-Dismissal Rule:
a. Notice of dismissal as adjudication on the merits: It operates as an
adjudication on the merits when filed by a plaintiff who has once dismissed in
a competent court an action based on or including the same claim (Two-Dismissal
Rule) (Sec. 1, Rule 17).
b. It applies when the plaintiff has:*****
i. Twice dismissed the actions;
ii. Based on or including the same claim; and
iii. In a court of competent jurisdiction (Riano, 2014)395.
393
Q: Lawrence filed a complaint against Grace to collect a loan of P50,000. Later, because of their
intimate relationship in the past, Lawrence filed a notice of dismissal of his complaint. Subsequently,
the two had a serious misunderstanding so that Lawrence again filed a complaint against Grace to
collect another loan of P100,000. Lawrence and Grace reconciled after which, the former withdraw
his complaint before the latter could file her answer or a motion for summary judgment. Was the
dismissal of the second complaint with or without prejudice? Explain. (1989 Bar Question)
Answer: *****The dismissal of the second complaint is without prejudice because it is
based on another claim of P100,000.00. If the dismissal were based on the same claim of P50,000.00
it would be with prejudice. (Id.)
394
Angel Kubeta filed a petition to change his first name "Angel." After the required publication but
before any opposition could be received, he filed a notice of dismissal. The court confirmed the
dismissal without prejudice. Five days later, he filed another petition, this time to change his
surname "Kubeta." Again, Angel filed a notice of dismissal after the publication. This time, however,
the court issued an order, confirming the dismissal of the case with prejudice. Is the dismissal with
prejudice correct? (2011 BAR)
(A) Yes, since such dismissal with prejudice is mandatory.
(B) No, since the rule on dismissal of action upon the plaintiff’s notice does not apply to special
proceedings.
(C) No, since change of name does not involve public interest and the rules should be liberally
construed.
(D) Yes, since the rule on dismissal of action upon the plaintiff’s notice applies and the two
cases involve a change in name.
395
BAR 2017: Q: Agatha filed a complaint against Yana in the RTC in Makati City to collect
P350,000.00, an amount representing the unpaid balance on the price of the car Yana had bought from
Agatha. Realizing a jurisdictional error in filing the complaint in the RTC, Agatha filed a notice of
dismissal before she was served with the answer of Yana. The RTC issued an order confirming the
dismissal. Three months later, Agatha filed another complaint against Yana based on the same cause of
action this time in the MeTC of Makati City. However, for reasons personal to her, Agatha decided to
——————————————
3.8.2. Dismissal upon MOTION by plaintiff; effect on existing

counterclaim [Sec 2]
1. Note that this dismissal is upon MOTION by the plaintiff, while the previous
one is upon NOTICE of the plaintiff. Why?
a. GR: complaint shall not be dismissed at the plaintiff's instance save
upon: i) approval of the court and ii) upon such terms and conditions as the
court deems proper;
b. XPN: except when it’s dismissal upon NOTICE by plaintiff as provided
for in Section 1, supra.
2. When filed? After service of the answer or a motion for summary judgment
by the adverse party.
3. *****A MATTER OF DISCRETION upon the court. 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 (Sec. 2, Rule 17).
4. Nature of the dismissal under this section:
*GR: the dismissal shall be without prejudice.396
*XPN: unless otherwise specified in the order, i.e., the order specifies it is with
prejudice.
5. NB: **A class suit shall not be dismissed or compromised without the approval
of the court.
6. What if a counterclaim has been pleaded by a defendant prior397 to the service
have the complaint dismissed without prejudice by filing a notice of dismissal prior to the service of
the answer of Yana. Hence, the case was dismissed by the MeTC. A month later, Agatha refiled the
complaint against Yana in the same MeTC. May Yana successfully invoke the Two-Dismissal Rule to bar
Agatha’s third complaint? Explain your answer. SUGGESTED ANSWER: No, Yana may not
successfully invoke the Two-Dismissal Rule to bar Agatha’s third complaint. Under the Two-Dismissal
Rule, the notice of dismissal operates as an adjudication upon the merits provided it is filed by a
plaintiff who has once dismissed in a competent court an action based on or including the same claim. [S1
R17] Here the first dismissal by the plaintiff was not in a competent court as the RTC in Makati City
did not have subject-matter jurisdiction over an action seeking to recover P350,000. Hence Agatha’s
third complaint is not barred by the Two-Dismissal Rule. (Jurist Review Center, Inc.)
396
Q: X filed an action for reconveyance against Y. Y forthwith filed his answer and served it on X. A
week later, X filed a motion to withdraw the action since he could not avail the services of
counsel. The court dismissed the complaint based on failure to prosecute. A month after, X
instituted the very same action against Y. Y moved to dismiss the case invoking res judicata.
He alleged that dismissal of the first case had the effect of an adjudication upon the merits since the
court’s Order had no condition that it was without prejudice. The court dismissed the subsequent
case on the ground of res judicata. Was the trial court correct? Explain. (1996 Bar Question) Answer:
No, because *****the dismissal of the complaint on motion of X is without prejudice
under Sec. 2 of Rule 17. The Court erred in dismissing the complaint for failure to prosecute for
an unreasonable length of time under Sec. 3 of Rule 17.
397
Q: Antique dealer Mercedes borrowed P1,000,000 from antique collector Benjamin. Mercedes
issued a postdated check in the same amount to Benjamin to cover the debt. On the due date of the
upon him of the plaintiff’s motion for dismissal? ******The dismissal shall be
limited to the complaint.398 Hence, the dismissal shall be without prejudice to
the right399 of the defendant to prosecute his counterclaim.400 Where?
check, Benjamin deposited it but it was dishonored. As despite demands, Mercedes failed to make
good the check, Benjamin filed in January 2009 a complaint for collection of sum of money before
the RTC of Davao. Mercedes filed in February 2009 her Answer with Counterclaim, alleging that
before the filing of the case, she and Benjamin had entered into a dacion en pago agreement in which
her vintage P1,000,000 Rolex watch which was taken by Benjamin for sale on commission was applied
to settle her indebtedness; and that she incurred expenses in defending what she termed a "frivolous
lawsuit. She accordingly prayed for P50,000 damages.
Benjamin soon after moved for the dismissal of the case. The trial court accordingly
dismissed the complaint. And it also dismissed the Counterclaim. Mercedes moved for a
reconsideration of the dismissal of the Counterclaim. Pass upon Mercedes' motion. (3%) (2010
Mercedes' Motion for Reconsideration is impressed with merit: the trial court should not
have dismissed her counter-claim despite the dismissal of the Complaint. Since it was the
plaintiff (Benjamin) who moved for the dismissal of his Complaint, and at a time when the defendant
(Mercedes) had already filed her Answer thereto and with counterclaim, the dismissal of the
Complaint should not carry with it the dismissal of the counterclaim without the conformity of
the defendant- counterclaimant. The Revised Rules of Court now provides in Rule 17, Sec. 2 there
or that "[1]a counterclaim has been pleaded by a defendant prior to the service upon him of the
plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall
be without prejudice to the right of the defendant to prosecute his counterclaim x x x.”
398
[] Bar 2008: Makee filed a suit for collection of Php 387,000 against Ron in the RTC of Manila. Aside
from alleging payment as a defense, Ron, in his answer, set up counterclaims for Php 100,000 as
damages and P30,000 as attorney’s fees as a result of the baseless filing of the complaint, as well as for
the Php 250,000 as the balance of the purchase price of the 30 units of air conditioners he sold to
Makee. Suppose Ron’s counterclaim for the unpaid balance is Php 310,000, what will happen to his
counterclaims if the court dismisses the complaint after holding a preliminary hearing on
Ron’s affirmative defenses? A: *****The dismissal of the complaint does not involve the dismissal
of the counterclaims of Ron. The rule on the matter is clear. The dismissal of the complaint shall be
without prejudice to the prosecution in the same or separate action of a counterclaim pleaded
in the answer (Sec. 6, Rule 16). The rule does not make a distinction between a compulsory and
permissive counterclaim. A similar rule applies under Secs. 2 and 3, Rule 17.
399
X filed an action for damages against Y arising from the latter’s tortious act. Y filed his answer with
a counterclaim for damages suffered and expenses incurred on account of X’s suit. Thereafter, X
moved to dismiss the case since he lost interest in the case. Y did not object. The court dismissed the
action without prejudice. Y moved the court to set the reception of his evidence to prove his
counterclaim. If you were the judge, how would you resolve the motion? Explain
Answer: I would deny the motion. Inasmuch as Y's counterclaim for damages incurred on
account of X’s suit cannot remain pending for independent adjudication. Y should have objected to
the dismissal of the complaint. His failure to object deprived him of the right to present evidence to
prove his counterclaim. (Sec. 2 of Rule 17; Ynotorio vs. Lira, 12 SCRA 369) [TOM thinks that the
counterclaim has to be heard by the judge as explained in the thought unit].
400
In Chuan vs Uy (2015), Chuan’s preference to have his counterclaim (and cross-claims) be
prosecuted in the same action was timely manifested. The RTC erred when it dismissed the case when
the present rules state that the dismissal shall be limited only to the complaint. *****A
dismissal of an action is different from a mere dismissal of the complaint. For this reason, since
only the complaint and not the action is dismissed, the defendant, in spite of said dismissal, may
still prosecute his counterclaim in the same action.
a. GR: in a separate action

b. XPN: unless within fifteen (15) days from notice of the motion he
manifests his preference to have his counterclaim resolved in the same action.401
———————————————
3.8.3. Dismissal due to the fault of plaintiff [Sec 3]

1. ******Instances when the complaint may be dismissed: If, for no justifiable
cause, the plaintiff:
a. fails to appear on the date of the presentation of his evidence in chief on the
complaint, or
b. fails to prosecute402 his action for an unreasonable length of time, or
[Procedurally, when the complaint is dismissed for failure to prosecute and the
dismissal is unqualified, ******the dismissal has the effect of adjudication on
the merits (Shimizu Phil. Contractors, Inc. v. Magsalin, 674 SCRA 65)]. Hence,
dismissal is with prejudice.403
c. fails to comply with the Rules or any order of the court. EG: Failure of the
plaintiff to appear at the pre-trial when so required shall cause for the dismissal
of the action. (Suico Industrial Corp. v. Laguna-Yap, 680 SCRA 145). But the
plaintiff’s failure to appear at the trial after he has presented his evidence and rested
401
A, who is engaged in tile installation business, was sued by EE Industries for breach of contract
for installing different marble tiles in its offices as provided in their contract. Without filing any
motion to dismiss, A filed its Answer with Counterclaim theorizing that EE Industries has no legal
capacity to sue because it is not a duly registered corporation. By way of counterclaim, A asked for
moral and actual damages as her business depleted as a result of the withdrawal and cancellation by her
clients of their contracts due to the filing of the case. The case was dismissed after the trial court
found that EE Industries is not a registered corporation and therefore has no legal capacity to sue.
However, it set a date for the reception of evidence on A’s counterclaim. EE Industries opposed
on the ground that the counterclaim could no longer be prosecuted, in view bf the dismissal of the
main case. Is the stand of EE Industries sustainable? Explain. (2%) SUGGESTED ANSWER:
No, because if no motion to dismiss has been filed, any of the grounds for dismissal
provided in the Rules may be pleaded as an affirmative defense in the answer which may
include a counterclaim. This is what A did by filing an Answer alleging the lack of legal capacity of
EE Industries to sue because it is not a duly registered corporation with a counterclaim for damages.
The dismissal of the complaint on this ground is without prejudice to the prosecution of the
counterclaim in the same action because it is a compulsory counterclaim. (Sec. 6 of Rule 16.)
402
A court can motu proprio dismiss a case on the following grounds, except : (2012 BAR)
a. failuretoprosecute;
b. lack of jurisdiction over the parties;
c. litis pendentia;
d. prescription.
403
X, the designated executor of a will, files a petition for probate of the same. X and his counsel failed
to appear without justifiable cause at the hearing on the presentation of evidence and the court
therefore dismissed, motu proprio, his petition for failure to prosecute. The effect of the dismissal is:
(2012 BAR)
a. notanadjudicationuponthemerits.
b. thewillcannolongerbeprobated.
c. it is a dismissal with prejudice.
d. abartoasubsequentactiononthesamecause.
his case does not warrant the dismissal of the case on the ground of failure to
prosecute. It is merely a waiver of his right to cross-examine and to object to
the admissibility of evidence.
2. Who initiates such dismissal?
a. upon motion of the defendant or
b. upon the court's own motion.
3. **MATTER OF EVIDENCE.
4. Effect of the dismissal:
a. it shall be without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action.
b. GR: Dismissal is with prejudice because it shall have the effect of an
ADJUDICATION upon the merits;
XPN: unless otherwise declared by the court. (Sec. 3, Rule 17)
—————————————
3.8.4. Dismissal of counterclaim, cross-claim or third-party complaint [Sec 4]

1. To what other pleadings are these Rules applicable? They shall apply to the
dismissal of any
a. counterclaim,
b. cross-claim, or
c. third-party complaint.
2. The rule on the dismissal of a complaint applies to the dismissal of any
counterclaim, cross-claim or third-party claim. A voluntary dismissal by the
claimant alone by notice pursuant to Sec. 1, Rule 17 shall be made before a
responsive pleading or a motion for summary judgment is served or, if there is
none, before the introduction of evidence at the trial or hearing (Sec. 4, Rule 17).
———————————————————————————————
3.9. Pre-trial [Rule 18]

3.9.1. Concept of pre-trial 263
3.9.2. Nature and purpose [Sec 2] 263
3.9.3. Notice of pre-trial 264
3.9.4. Appearance of parties [Sec 4]; effect of failure to appear [Sec 5] 265
3.9.5. Pre-trial brief; effect of failure to file [Sec 6] 266
3.9.6. Distinction between pre-trial in civil case and pre-trial in criminal case 267
3.9.7. Alternative Dispute Resolution (ADR) 269
———————————————————————————————
3.9.1. Concept of pre-trial

1. It is a procedural device by which the court is called upon, after the filing of
the last pleading,404 to compel the parties and their lawyers to appear before it,
and negotiate an amicable settlement or otherwise make a formal statement
and embody in a single document the issues of fact and law involved in the
action, and such other matters as may aid in the PROMPT DISPOSITION of
the action.
2. Conduct of a pre-trial: After the last pleading has been served and filed, it shall
be the DUTY OF THE PLAINTIFF to promptly move EX PARTE405 that the
case be set for pre-trial (Sec. 1, Rule 18), i.e, within 5 DAYS after the last
pleading joining has been served and filed (Administrative Circular No. 3-99,
January 15, 1999).
a. A motion to set the case for pre-trial is an ex parte motion. This means
that the motion need not be the subject of a hearing (Riano, 2014).
b. *****If the plaintiff fails to file a motion within the given period, the
branch CLERK of court shall ISSUE A NOTICE of pre-trial (A.M. No. 03-1-09-
SC, July 13, 2004).406 Hence, there will be no delay in the case.
404
*Hence, where the last pleading has not yet been served and filed, the case is not yet ready for pre-trial
(Pioneer Insurance & Surety Corporation v. Hontanosas, G.R. No. L-35951 August 31, 1977).
However, the “last pleading” need not be literally construed as one having been served and filed. *****For purposes
of the pleading, the EXPIRATION OF THE PERIOD for filing the last pleading without it having been
served and filed is SUFFICIENT (Riano, 2014).
405
The following motions require a notice of hearing served on the opposite party, except: (2012 BAR)
a. Motion to Set Case for Pre-trial;
b. Motiontotakedeposition;
c. Motion to correct TSN;
d. Motiontopostponehearing.
406
[] Duty of judge and clerk to set date. Landmark case: Mely Hanson Magpali vs. Judge Moises M.
Pardo, 14 November 2008): Respondent Judge claimed that the party did not in any manner request
that the case be scheduled for hearing as provided under Rule 18, par 1 and that it should be the
party who will ask an ex-parte setting/scheduling of the case for its pre-trial.
3. Last Pleading: The last permissible pleading that a party can file is the
REPLY to the answer to the last pleading asserting a claim. This claim could be the
original complaint, the counter-claim, cross-claim, or third-party complaint. If
an answer is filed and served in response to these claims, the pleading in
response to these answers is the reply (Sarmiento v. Juan, G.R. No. L-56605,
January 28, 1983) which is to be filed within 10 DAYS from the service of the
pleading responded to (Sec. 6, Rule 11).
3.9.2. Nature and purpose [Sec 2]

1. ******Nature of a Pre-trial: It is MANDATORY (Sec. 2, Rule 18). Pre-trial
cannot be taken for granted. It is NOT A MERE TECHNICALITY in court
proceedings for it serves a vital OBJECTIVE: the SIMPLIFICATION,
ABBREVIATION, AND EXPEDITION OF THE TRIAL, if not indeed its
dispensation (The Philippine American Life & General Insurance Co. v. Enario,
G.R. No. 182075, September 15, 2010).
2. Pre-trial Conference: During the pre-trial, the judge shall be the one to ask
questions on issues raised by the parties and all questions or comments by
counsel or parties must be directed to the judge. The purpose of this is to
AVOID HOSTILITIES between the parties (A.M. No. 03-1-09-SC, July 13, 2004).
3. ******Purposes [Sec 2]; The court shall consider:
(a) The possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the pleadings;
(d) The possibility of obtaining stipulations or admissions of facts and of
documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner;
(g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be found
to exist;
(h) The advisability or necessity of suspending the proceedings; and
a. He is not exactly correct. A.M. No. 03-1-09-SC provides that:

i. within 5 days from date of filing of reply, the plaintiff must promptly move ex-
parte that the case be set for pre-trial conference.
ii. If the plaintiff fails to file said motion within the given period, the Branch COC shall
issue a notice of pre-trial.
b. The respondent Judge should be conversant therewith. The case has not been set for pre-
trial or at least for a hearing after the filing of the Answer dated 23 July 2007. The Court found the
respondent judge guilty of Gross Ignorance of the Law and fined him in the amount
of P10,000.00. She should have known that while the petitioners have the responsibility to
move ex parte to have the case scheduled for preliminary conference, the court (through the branch
clerk of court) has the duty to schedule the case for pre-trial in the event that the petitioners fail to file
the motion.
(i) Such other matters as may aid in the prompt disposition of the action.
4. Effect of failure of the parties to settle the case during Pre-trial Proceeding:
**The judge should NOT allow the termination of a pre-trial simply because
of the manifestation of the parties that they cannot settle the case. Instead, he
should expose the parties to the ADVANTAGES of pre-trial. He must also be
mindful that there are important aspects of the pre-trial that ought to be taken up
to expedite the disposition of the case (Ramos v. Spouses Lavendia, G.R No.
176706, October 8, 2008). If all efforts to settle fail, the trial judge shall endeavor
to achieve the other purposes of a pre-trial like, among others, obtaining
admissions or stipulations of fact. To obtain admissions, the judge shall ask the
parties to submit whatever depositions have been taken under Rule 23, the
answers to written interrogatories under Rule 25 and the answers to request
for admissions by the adverse party under Rule 26. He may also require the
production of documents or things requested by a party under Rule 27 and the
results of the physical and mental examination of persons under Rule 28
(A.M. No. 03-1-09-SC, July 13, 2004).
5. *****ONE DAY EXAMINATION OF WITNESS RULE AND MOST
IMPORTANT WITNESS RULE: In the pre-trial, the court shall ask the
parties to agree on the SPECIFIC DATES for continuous trial, adhere to the
CASE FLOW CHART determined by the court and use the time frame for each stage
setting the trial dates. Adherence to the ONE DAY EXAMINATION OF
WITNESS RULE shall be required where the witness shall be fully examined
in 1 day only, subject to the court’s discretion during the trial on whether or not to extend the
examination for JUSTIFIABLE REASONS.
*****Where no settlement has been effected, the court shall follow the
MOST IMPORTANT WITNESS RULE, where the court shall DETERMINE
the most important witnesses and LIMIT the number of such witnesses and
require the parties and/or counsels to submit to the branch clerk of court the
names, addresses and contact numbers of the witnesses to be summoned by
subpoena. Note however, that the court may also refer the case to a TRIAL
BY COMMISSIONER under Rule 32 (A.M. No. 03-1-09-SC, July 13, 2004).
3.9.3. Notice of pre-trial

1. Service of notice of pre-trial: It shall be served
a. on counsel, or
b. on the party who has no counsel.
*The counsel served with such notice is charged with the duty of notifying
the party represented by him (Sec. 3, Rule 18).
2. Sending a notice of pre-trial stating the date, time and place of pre-trial is
MANDATORY. *****Its ABSENCE will render the pre-trial and subsequent
proceedings VOID.407 This must be so as part of a party’s right to DUE

PROCESS. With due notice of the proceedings, the fate of a party adversely
affected will not be judged ex parte and he will have the opportunity to confront
the opposing party (Agulto v. Tecson, G.R. No. 145276, November 29, 2005).
3.9.4. Appearance of parties [Sec 4]; effect of failure to appear [Sec 5]

1. Whose duty is it to appear at the pre-trial? It shall be the duty of BOTH the
parties and their counsel (Sec. 4, Rule 18).
a. *****Should the lawyer undertakes to appear not only as an attorney but
in substitution of his client’s person, it is IMPERATIVE for him to have
“SPECIAL AUTHORITY” to make such substantive agreements as only the
client otherwise has capacity to make. (Feria & Noche, 2013).
b. Under the new rules, the “special authority” of the lawyer or
representative should be in WRITING because
i. the courts can neither second-guess the specific powers given,
ii. nor can the courts assume that all the powers specified in Section 4
of Rule 18 are granted by a party to his representative. (Republic v. CA, 429 SCRA
669).
2. When may the non-appearance of a party be excused?408
a. only if a VALID CAUSE is shown therefor or
407
Non-compliance with service of notice of pre-trial: ****If no notice of pre-trial is served, all the
proceedings at the pre-trial are NULL AND VOID. Hence, the absence of the requisite notice of
pre-trial to the defendant’s counsel (or to the defendant himself, in case he has no counsel) nullifies
the order allowing the plaintiff to present his evidence ex parte (Ibid.)
408
When non-appearance of a party in a pre-trial conference EXCUSED
a. If a VALID CAUSE is shown therefore; or
b. If a representative shall appear in his behalf FULLY AUTHORIZED IN WRITING to:
i. enter into an amicable SETTLEMENT;
ii. submit to ALTERNATIVE modes of dispute resolution; and
iii. enter into STIPULATIONS OR ADMISSIONS of facts and of documents (Sec. 4, Rule 18).
[] The phraseology of the provision suggests that it is NOT SUFFICIENT for the written authority to
give to the representative the power to enter into one of the matters mentioned in Sec. 4 of Rule
18, as when the only authority granted is to enter into amicable settlement. The authority must also confer upon
the representative the power to enter into alternative modes of dispute resolution and stipulations
and admissions of fact. An INCOMPLETE AUTHORITY does NOT SATISFY the requirements
of the Rules and should be deemed the equivalent of having no authority at all. Further, the
******mere presentation of such written authority is NOT SUFFICIENT, but must be
complemented by a showing of VALID CAUSE for the non-appearance of the party himself (Ibid.).
*****NB: The authority to submit to ADR, which includes arbitration, is not complied with by
a mere special power to compromise since a special power to compromise does not authorize
submission to arbitration (Art. 1880, NCC). Moreover, the written authority must be in the form of
special power of attorney. Entering into an amicable settlement for a client who is the principal in
the attorney-client relationship involves entering into a compromise. Substantive law is explicit: Special
power of attorney is necessary to compromise, and to submit questions to arbitration.
Procedural rules likewise prohibit an attorney to compromise his client’s litigation without a “special
authority” (Ibid.).
b. if a representative shall appear in his behalf FULLY

AUTHORIZED IN WRITING******
i. to enter into an amicable settlement,
ii. to submit to alternative modes of dispute resolution, and
ii. to enter into stipulations or admissions of facts and of documents.
3. Bar 1992: ******EFFECT OF FAILURE to appear during pre-trial:
a. Plaintiff’s failure: shall be a CAUSE FOR DISMISSAL of the action,
WITH PREJUDICE, unless otherwise ordered by the court. Remedy: The plaintiff can
APPEAL from the order of dismissal. Accordingly, it is only when the order of
dismissal is without prejudice that the remedy is to re-file the complaint (Sec. 1(g),
Rule 41).
b. Defendant’s non-attendance: shall be a cause to allow
i. the plaintiff to present evidence ex parte409 and
ii. the court to render judgment on the basis thereof (Sec. 5, Rule 18).
*Remedy: The defendant may move for the RECONSIDERATION
of the order and if the denial is tainted with grave abuse of discretion, he may file a
petition for CERTIORARI (Riano, 2014).
3.9.5. Pre-trial brief; effect of failure to file [Sec 6]

1. When filed: The parties shall file their respective pre-trial briefs in such a
manner as shall ensure their receipt thereof at least 3 days before the date of the
pre-trial (Sec. 6, Rule 18).
2. Contents of a pre-trial brief
(a) A statement of their willingness to enter into amicable settlement or
alternative modes of dispute resolution, indicating the desired terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented stating the purpose thereof;
(e) A manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their respective
testimonies.
****NB: The parties are bound by the representations and statements in
their respective pre-trial briefs (A.M. 03-1-09-SC, July 13, 2004). Hence, such
representations and statements are IN THE NATURE OF JUDICIAL
ADMISSIONS in relation to Sec. 4, Rule 129.
3. *****Effect of failure to file the pre-trial brief: it shall have the same effect
409
What is the consequence of the unjustified absence of the defendant at the pre- trial? (2011 BAR)
Page 125 of 466 REMEDIAL LAW
(A) The trial court shall declare him as in default.
(B) The trial court shall immediately render judgment against him.
(C) The trial court shall allow the plaintiff to present evidence ex-parte.
(D) The trial court shall expunge his answer from the record.
as failure to appear at the pre-trial, i.e., it shall be cause for dismissal of the
action. Hence,
a. if it is the plaintiff who fails to file a pre-trial brief, such failure shall be a
cause for DISMISSAL of the action. *****The dismissal of the complaint for
failure to file pre-trial brief is DISCRETIONARY on the part of the trial court
(Ramos v. Spouses Lavendia, G.R. No. 176706, October 8, 2008).
b. If it is the defendant who fails to do so, such failure shall be a cause to
allow the plaintiff to present his evidence EX PARTE.
4. Pre-trial Order: An order issued by the court upon termination of the pre-trial.
Under A.M. No. 03-1-09-SC, the pre-trial order shall be issued WITHIN 10
DAYS after termination of the pre-trial. Contents of a Pre-trial Order—The
order recites in detail the following:
a. The matters taken up in the conference;
b. The actions taken thereon;
c. The amendments allowed to the pleadings;
d. The agreements or admissions made by the parties as to any matters
considered. **NB: These admissions embodied in the pre-trial order are
BINDING upon the parties and conclusive upon them.
[] Should the action proceed to trial, the order shall, explicitly define and
limit the issues to be tried.
[] Relevance of the order:
i. GR: The contents of the order shall control the subsequent
course of the action
ii. XPN: ******unless modified before trial to prevent manifest
injustice. 410
410
Bar 2009: Upon termination of the pre-trial, the judge dictated the pre-trial order in the presence
of the parties and their counsel, reciting what had transpired and defining three (3) issues to be tried.
If, immediately upon receipt of his copy of the pre-trial order, plaintiff’s counsel should move for
its amendment to include a fourth (4th) triable issue which he allegedly inadvertently failed to mention
when the judge dictated the order.
a. Should the motion to amend be granted? YES. Under Section 7 of Rule 19, the contents of
the pre-trial order may be MODIFIED BEFORE TRIAL to PREVENT MANIFEST INJUSTICE.
For the court to refuse consideration of a triable issue would result in a manifest injustice.
b. Suppose trial had already commenced and after the plaintiff’s second witness had testified, the
defendant’s counsel moves for the amendment of the pre-trial order to include a fifth (5th) triable issue vital to
his client’s defense. Should the motion be granted over the objection of plaintiff’s counsel? NO.
*****The contents of the pre-trial order shall control the subsequent course of action unless
MODIFIED BEFORE trial to prevent manifest injustice. Here trial was already on-going. Hence
the amendment of the pre-trial order to add an issue may no longer be made. ADDITIONAL: Where
trial had already commenced, more so the adverse party had already presented witnesses, to allow an
amendment would be unfair to the party who had already presented his witnesses. The
amendment would simply render nugatory the reason for or purpose of the pre-trial Order. Sec.7 of
Rule 18 on pre-trial in civil actions is explicit in allowing a modification of the pre-trial Order
“before” trial begins to prevent manifest injustice.
3.9.6. Distinction between pre-trial in civil case and pre-trial in criminal

case
PT IN CIVIL CASES [Rule 18] PT IN CRIMINAL CASES [Rule 118]
It is set when the plaintiff moves ex parte It is ordered by the court and no motion to set the case
to set the case for pre-trial (Sec. 1, Rule 18). for pre-trial is required from either the prosecution or
but if the latter does not do it in 5-days after the defense (Sec. 1, Rule 118). Hence, it is upon the
the last responsive pleading, the branch CoC initiative of the court
shall issue a notice of PT**
The motion to set the case for pre-trial is The pre-trial is ordered by the court after
made after the last pleading has been arraignment and within 30 days from the date the court
served and filed (Ibid.). acquires jurisdiction over the person of the accused (Ibid.).
It considers the possibility of an amicable It does not include the possibility of amicable
settlement as an important objective (Sec settlement of criminal liability as one of its purposes
2(a), Rule 18). (Ibid.).
Requires the proceeding during the preliminary All agreements or admissions made or entered during
conference to be recorded in the “minutes of the pre-trial conference shall be reduced in writing
preliminary conference” to be signed by both and signed by BOTH the accused and counsel,
parties and/or counsel. The rule allows otherwise, they cannot be used against the accused
EITHER the party or his counsel to sign (Sec. 2, Rule 118).
the minutes (A.M. No. 03-1-09-SC).
Sanctions for non-appearance in a pre-trial The sanctions in a criminal case are imposed upon
are imposed upon the plaintiff and the the counsel for the accused or the prosecutor
defendant in a civil case (Sec. 4, Rule 18). (Sec. 3, Rule 118).
a PT brief is specifically required to be It is not specifically required in a criminal case.
submitted in a civil case (s6r18)
******Bar 1997: Pre-trial in Civil vs. Criminal cases: Both are mandatory.
[] Bar areas on pre-trial******
1. It is mandatory in both civil and criminal cases; it takes the form of a
preliminary conference in summary proceedings for both civil and criminal
cases.411
2. Why is it the plaintiff’s duty to file an ex parte motion to set the date of pre-
trial? It is the plaintiff who knows when the last pleading has been filed and
it is the plaintiff who has the duty to prosecute.412
411
Is pre-trial mandatory in all trial courts? Explain. (1989 Bar Question) Answer:
Pre-trial is mandatory in all trial courts in civil cases. (Sec. 1 of Rule 30). However, in criminal
cases, pre-trial may be held only when the accused and his counsel agree. (Sec. 1 of Rule 118). [TOM:
Sec. 1 of Rule 118 says that pre trial is mandatory in criminal cases] In summary procedure, a
preliminary conference is held in both civil and criminal cases. (Sec. 6 and 13)
412
Q: Ulio filed a complaint in the Municipal Trial Court of Lanuza for the recovery of a sum of
money against Juan. The latter filed his answer to the complaint serving a copy thereof on Ulio.
After the filing of the answer of Juan, whose duty is it to have the case set for pre- trial? Why? (5%)
(2001 Bar Question) SUGGESTED ANSWER:
After the filing of the answer of Juan, the plaintiff has the duty to promptly move ex parte that
the case be set for pre-trial. (Sec. 1, Rule 18, 1997 Rules of Civil Procedure). The reason is that it is the
3. [] Q: Mayor TM was charged of malversation through falsification of official

documents. Assisted by Atty. OP as counsel de parte during pre-trial, he signed
together with Ombudsman Prosecutor TG a “Joint Stipulation of Facts and
Documents." which was presented to the Sandiganbayan. Before the court could
issue a pre-trial order but after some delay caused by Atty. OP, he was
substituted by Atty. QR as defense counsel. Atty. QR forthwith filed a motion
to withdraw the “Joint Stipulation," alleging that it is prejudicial to the accused
because it contains, inter alia, the statement that the “Defense admitted all the
documentary evidence of the Prosecution," thus leaving the accused little or no
room to defend himself, and violating his right against self-incrimination.
Should the court grant or deny QR’s motion? Reason. (5%) (2004 Bar Question)
SUGGESTED ANSWER: The court should deny QR’s motion. If in the
pre-trial agreement signed by the accused and his counsel, the accused admits the
documentary evidence of the prosecution, it does not violate his right against
self-incrimination. His lawyer cannot file a motion to withdraw. A pre-trial order
is not needed. (Bayas v. Sandiganbayan, 391 SCRA 415[2002]). The admission of
such documentary evidence is allowed by the rule. [Sec. 2 of Rule 118; People v.
Hernandez, 260 SCRA 25 [1996]).
3.9.7. Alternative Dispute Resolution (ADR)

Special Rules of Court on ADR (A.M. No. 07-11-08-SC)
*Not included in the Bar 2017 coverage, but the following bar areas are included
for future bar exams:
1. Venue of the petition to vacate the arbitral reward: the petition shall be filed
with the Regional Trial Court having jurisdiction over the place where one of
the parties is doing business, where any of the parties reside or where the
arbitration proceedings were conducted.413
plaintiff who knows when the last pleading has been filed and it is the plaintiff who has the duty to
prosecute.
ALTERNATIVE ANSWER: In the event the plaintiff files a reply, his duty to move that the
case be set for pre-trial arises after the reply has been served and filed.
413
Q: Water Builders, a construction company based in Makati City, entered into a construction
agreement with Super Powers, Inc., an energy company based in Manila, for the construction of a
mini hydroelectric plant. Water Builders failed to complete the project within the stipulated
duration. Super Powers cancelled the contract. Water Builders filed a request for arbitration with
the Construction Industry Arbitration Commission (CIAC). After due proceedings, CIAC rendered
judgment in favor of Super Powers, Inc. ordering Water Builders to pay the former P 10 million, the
full amount of the down payment paid, and P2 million by way of liquidated damages. Dissatisfied with
the CIAC's judgment, Water Builders, pursuant to the Special Rules of Court on Alternative Dispute
Resolution (ADR Rules) filed with the RTC of Pasay City a petition to vacate the arbitral award.
Super Powers, Inc., in its opposition, moved to dismiss the petition, invoking the ADR Rules, on the
ground of improper venue as neither of the parties were doing business in Pasay City. Should
Water Builders' petition be dismissed? (2015)
A: YES, the petition should be dismissed on the ground of improper venue. Under the
Special Rules of Court on Alternative Dispute Resolution (ADR), the petition shall be filed with the
2. [] Bar 2012: The three stages of diversion are Court-Annexed Mediation414

(CAM), Judicial Dispute Resolution (JDR), and Appeals Court Mediation (ACM).
a. During CAM, the judge refers the parties to the Philippine Mediation
Center (PMC) for the mediation of their dispute by trained and accredited
mediators.
b. If CAM fails, the JDR is undertaken by the JDR judge, acting as a
mediator-conciliator-early neutral evaluator.
c. The third case is during appeal, where covered cases are referred to
ACM.
3.9.8. INCLUDE: Rule on Guidelines to be Observed by Trial Court Judges and

Clerks of Court in the Conduct of Pre-trial and Use of Deposition-Discovery
Measures (A.M. No. 03-1-09-SC) which became effective on 16 August 2004415 416
*Not included in the Bar 2017 coverage
———————————————————————————————
Regional Trial Court having jurisdiction over the place where one of the parties is doing business,
where any of the parties reside or where the arbitration proceedings were conducted (Rule 11.3, Special
Rules of Court on Alternative Dispute Resolution, A.M. No. 07-11-08-SC); hence, the venue of the
petition to vacate the arbitral award of Water Builders is improperly laid.
414
[] Which among the following is not subject to mediation for judicial dispute resolution? (2013
BAR)
(A) The civil aspect of B.P. Blg. 22 cases.
(B) The civil aspect of theft penalized under Article 308 of the Revised Penal Code.
(C) The civil aspect of robbery.
(D) Cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambarangay Law.
415
BAR 2016: Q: What is the "most important witness" rule pursuant to the 2004 Guidelines of
Pretrial and Use of Deposition-Discovery Measures? Explain. SUGGESTED ANSWER: The “most
important witness” rule pursuant to the 2004 Guidelines of Pretrial and Use of Deposition-Discovery
Measures provides that the judge shall, during the pretrial conference, determine the most
important witnesses to be heard and limit the number of witnesses. (Jurist Review Center, Inc.)
416
BAR 2016: Q: What is the "one day examination of witness" rule pursuant to the said 2004
Guidelines? Explain. SUGGESTED ANSWER: The “one-day examination of a witness” rule
pursuant to the 2004 Guidelines of Pretrial and Use of Deposition-Discovery Measures provides that a
witness has to be fully examined in one day only, subject to the court’s discretion to extend the
direct and/or cross-examination for justifiable reasons. (Jurist Review Center, Inc.)
3.10. Intervention [Rule 19]
3.10.1. On Intervention [Sec 1] 272

REQUISITES FOR INTERVENTION***** 272
INTERVENTION vs. COUNTERCLAIM 274
INTERVENTION vs. INTERPLEADER 275
OTHER RELEVANT PROVISIONS ON INTERVENTION 275
3.10.2. Time to intervene [Sec 2] 276
3.10.3. Remedy for the denial of motion to intervene 276
———————————————————————————————
3.10.1. On Intervention [Sec 1]

1. What it is: It is a legal proceeding by which a third person is permitted by the
court to become a party by intervening in a pending action after meeting the
conditions and requirement set by the Rules of Court. This person who intervenes
is one who is not originally impleaded in the action (First Philippine Holdings
Corp. v. Sandiganbayan, G.R. No. 88345, February 1, 1996).
a. Intervention is merely optional and permissive (Mabayo Farms, Inc. v.
CA, G.R. No. 140058, August 1, 2002). Hence, the court has the full measure of
discretion in permitting or disallowing the same (Yau v. Manila Banking
Corporation, G.R. No. 126731, July 11, 2002). In claiming the right to intervene,
the intervenor must comply with the requirements laid down by Rule 19 of the
Rules of Court (Office of the Ombudsman v. Samaniego, G.R. No. 175573,
September 11, 2008).
b. Bar 2000: Intervention is NOT an independent proceeding but is
ancillary and supplemental to an existing litigation. Its purpose is to enable a
stranger to an action to become a party to protect his interest (Santiago Land
Development Corporation v. CA, G.R. No. 106194, August 7, 1997).
c. Denial of a motion to intervene does not constitute res judicata. The
remedy of the intervenor is to file a separate action.
d. A change in theory of the defense is not a proper intervention.
Intervention should not alter the theory of both parties
2. When? Period to intervene: The motion to intervene may be filed any time
before rendition of judgment by the trial court. A copy of the pleading-in-
intervention shall be attached to the motion and served on the original parties
(Sec. 2, Rule 19). [] Bar 1991: Intervention may be allowed after judgment has
been rendered by the court
a. GR: After rendition of judgment, a motion to intervene is barred, even if
the judgment itself recognizes the right of the movant.The motion to intervene
must be filed at any time before rendition of judgment by the trial court (Sec.
2, Rule 19). Hence, intervention after trial and decision can no longer be permitted
(Yau v. Manila Banking Corporation, G.R. No. 126731, July 11, 2002).
b. XPNs:417******
i. With respect to indispensable parties, intervention may be
allowed even on appeal (Falcasantos v. Falcasantos, G.R. No. L-4627, May 13,
1952);
b. When the intervenor is the Republic (Lim v. Pacquing, G.R. No.
115044, January 27, 1995); *****Prescription does not lie against the State. The
State is not estopped by the inaction or mistakes of its agents.
c. Where necessary to protect some interest which cannot otherwise be
protected, and for the purpose of preserving the intervenor’s right to appeal
(Pinlac v. CA, G.R. No. 91486, September 10, 2003); or
d. May be allowed during the pendency of the appeal, where the interest of
justice so requires (Tahanan Dev. Corp. v. CA, G.R. No. L-55771, November 15,
1982).
3. Procedure for intervention
a. The intervenor shall file a motion for intervention attaching thereto his
pleading-in-intervention. The following are the pleadings to be filed depending
upon the purpose of the intervention:418
i. If the purpose is to assert a claim against either or all of the original
parties – The pleading shall be called a complaint-in-intervention.
ii. If the pleading seek to unite with the defending party in resisting a
claim against the latter – File an answer-in-intervention (Sec. 3, Rule 19).
b. The motion and the pleading shall be served upon the original parties.
417
***Intervention is allowed even AFTER the decision became final and executory. Although
Rule 19 is explicit on the period when a motion to intervene may be filed, the Supreme Court
allowed exceptions in several cases. The SC said in the case of Deogenes Rodriguez v. Court of
Appeals, (G.R. No. 184589, June 13, 2013): “This rule (Rule 19), however, is not inflexible.
Interventions have been allowed even beyond the period prescribed in the Rules, when demanded by
the higher interest of justice. Interventions have also been granted to afford indispensable parties,
who have not been impleaded, the right to be heard even after a decision has been rendered by the
trial court, when the petition for review of the judgment has already been submitted for decision
before the Supreme Court, and even where the assailed order has already become final and executory.
In Lim v. Pacquing, G.R. No. 115044, January 27, 1995 the motion for intervention filed by the
Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to
settle once and for all the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for intervention rests on the sound
discretion of the court after consideration of the appropriate circumstances. The Court stressed
that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the
court fully and completely available for justice. Its purpose is not to hinder or delay, but to facilitate
and promote the administration of justice.”
418
Kinds of pleadings-in-intervention. [Sec 3]
a. Complaint-in-intervention: he asserts a claim against either or all of the original parties, or an
b. Answer-in-intervention: he unites with the defending party in resisting a claim against the
latter.
c. The answer419 to the complaint-in-intervention shall be filed within 15

days from notice of the order admitting the same, unless a different period is
fixed by the courts (Sec.4, Rule 19).
4. Court action:420 The court shall consider
a. whether or not the intervention will UNDULY delay or prejudice the
adjudication of the rights of the original parties, and
b. whether or not the intervenor's rights may be fully protected in a
SEPARATE proceeding.
[] Hence, intervention is not absolute.421 Once allowed, the intervenor
becomes a party to the case, with all the rights attached to it.422
REQUISITES FOR INTERVENTION*****

1. There must be a motion for intervention filed before rendition of judgment
by the trial court (Sec. 1, Rule 19); NB: A motion is necessary because **leave of
court is required before a person may be allowed to intervene (Sec. 1, Rule 19).
2. The movant must show in his motion that he:423
a. Has an immediate legal interest in the matter in controversy, not
419
When shall an answer to the complaint-in-intervention shall be filed?
a. GR: within fifteen (15) days from notice of the order admitting the same
b. XPN: unless a different period is fixed by the court.
420
Factors in the approval of a motion to intervene
a. Whether or not the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties; and
b. Whether or not the intervenor’s right may be duly protected in a separate proceeding.
421
The right to intervene is not absolute. In general, it CANNOT be allowed where (2011 BAR)
(A) the intervenor has a common interest with any of the parties.
(B) it would enlarge the issues and expand the scope of the remedies.
(C) the intervenor fails to put up a bond for the protection of the other parties. (D) the intervenor has
a stake in the property subject of the suit.
422
Ranger Motors filed a replevin suit against Bart to recover possession of a car that he mortgaged
to it. Bart disputed the claim. Meantime, the court allowed, with no opposition from the parties,
Midway Repair Shop to intervene with its claim against Bart for unpaid repair bills. On subsequent
motion of Ranger Motors and Bart, the court dismissed the complaint as well as Midway
Repair Shop’s intervention. Did the court act correctly? (2011 BAR)
(A) No, since the dismissal of the intervention bars the right of Bart to file a separate action.
(B) Yes, intervention is merely collateral to the principal action and not an independent proceeding.
(C) Yes, the right of the intervenor is merely in aid of the right of the original party, which in this case
had ceased to exist.
(D) No, since having been allowed to intervene, the intervenor became a party to the action,
entitled to have the issue it raised tried and decided.
423
Who may intervene in the action? A person who has
a. a LEGAL INTEREST in the matter in litigation, or
b. in the SUCCESS of either of the parties, or
c. an interest AGAINST BOTH, or
d. is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof.
[] How? with leave of court.
merely contingent;
b. Has legal interest in the success of either of the parties in the action;
c. Has legal interest against both parties; or
d. Is so situated as to be adversely affected by a distribution or other
disposition of the property in the custody of the court or of an officer thereof
(Sec. 1, Rule 19);
3. Intervention will not unduly delay or prejudice the adjudication of the rights
of original parties; and
4. *****Intervenor’s rights may not be fully protected in a separate424
proceeding (Mabayo Farms, Inc. v. CA, G.R. No. 140058, August 1, 2002).
INTERVENTION vs. COUNTERCLAIM

1. EFFECT OF Dismissal of original action in an intervention: will result
to the dismissal of the intervention. The jurisdiction of the intervention
is governed by the main action. So if the court has no JN over the
principal action, then it has no JN over an intervention. [ATI v Bautista-
Ricafort, 2006, wherein the main action, and the intervention, was filed
in the wrong court.]
2. Compare the EFFECT on the dismissal of a counterclaim: The
dismissal of the complaint is without prejudice to the right of the defendant
to prosecute his counterclaim in the same or in a separate action. (Sec. 6, Rule
16, last par.; Pinga v. Heirs of Santiago, 494 SCRA 393 [2006]). But if the
defendant only filed a motion to dismiss (not an Answer), at the same time
setting up his counterclaims, and the court grants his motion, the dismissal of
the complaint would also bring about the dismissal of his counterclaims but he
can file a separate action for his permissive counterclaims. The compulsory
counterclaims are deemed waived when he filed a motion to dismiss the
complaint instead of answering the same.
INTERVENTION vs. INTERPLEADER

1. In intervention, intervenor must have legal interest.
2. In interpleader, the interpleading dude has no legal interest in the
property in possession.
Intervention Interpleader
An ancillary action An original action
424
Note: It is recognized that a judgment creditor who has reduced his claim to judgment may be
allowed to intervene and a purchaser who acquires an interest in property upon which an attachment has
been levied may intervene in the underlying action in which the writ of attachment was issued for the
purpose of challenging the attachment (Yau vs. Manila Banking Corp, G.R. No. 126731, July 11,
2002).
Proper when the intervenor has legal interest in Presupposes that the plaintiff has no interest
the matter of litigation or success of either of the parties, or in the subject matter of the action or has an
interest against both or may be adversely affected interest therein, which in whole or in part, is
by distribution/disposition of property in the not disputed by the other parties to the
custody of the court action
Defendants are already original parties to the Defendants are being sued precisely to
pending suit implead them.
OTHER RELEVANT PROVISIONS ON INTERVENTION

1. Rule 57, Sec 14 (on attachment) – 3rd party claimant can intervene
2. Rule 39, Sec 16 – can no longer vindicate in same action, as there
was final judgment already
3.10.2. Time to intervene [Sec 2]

1. When may a motion to intervene be filed? at any time before rendition of
judgment by the trial court.
2. Procedural requirements: A copy of the pleading-in-intervention shall be
a. attached to the motion and
b. served on the original parties.
3. NB: the rules provides intervention in trial courts. No provision on
intervention in appellate courts. Hence, **appellate courts can allow
intervention in their sound discretion.
4. After judgment, can there still be intervention?
a. GR: No.
b. XPN: if indispensable party, the court may allow intervention
even after judgment. [Looyuko v CA, 2001: junior creditors were NOT
allowed to intervene in a decided foreclosure case because they were
not indispensable parties]
3.10.3. Remedy for the denial of motion to intervene

1. Mandamus from the Order of the court allowing or disallowing intervention
a. GR: The granting or refusal of a motion to intervene is a matter of
judicial discretion, and once exercised, the decision of the court cannot be
reviewed or controlled by mandamus, however erroneous it may be (Otto Gmur,
Inc. v. Revilla, 55 Phil. 627; Feria & Noche, 2013).
b. XPN: When there is an arbitrary abuse of that discretion, in which
case mandamus may issue if there is no other adequate remedy, though the
result is that the court will be called upon to review the exercise of a discretionary power (Ibid.).
2. NB: A court’s power to allow or deny intervention is circumscribed by the basic
juridical procedure that only a person with interest in an action or proceeding may
be allowed to intervene. A court has no authority to allow a person, who has
no interest in an action or proceeding, to intervene (Anonuevo v. Intestate Estate
of Jalandoni, December 1, 2010). Hence, this discretion must be exercised

judiciously and only after consideration of all the circumstances obtaining in the case.
Thus, where substantial interest of the movant in the subject matter is undisputed, a
denial of a motion to intervene is an injustice (Mago v. CA, February 25, 1999).
——————————————
CALENDAR OF CASES [Rule XX]

1. Who keeps a calendar of cases [Sec 1] The clerk of court, under the direct
supervision of the judge.
2. Content of the calendar: cases for
a. pre-trial,
b. trial,
c. those whose trials were adjourned or postponed, and
d. those with motions to set for hearing.
• NB: To ensure a more efficient monitoring of cases for both supervision
and reportorial purposes, the clerk of court is now required to keep at least
four separate calendars reflecting these four categories.
3. Is there any preference given to some cases in making the calendar? YES, these
are:
a. habeas corpus cases,
b. election cases,
c. special civil actions, and
d. those so required by law.
3. Procedure in the assignment of cases to the different branches of a court: it shall be
done exclusively by raffle. How?
a. The assignment shall be done in open session of which adequate
notice shall be given so as to afford interested parties the opportunity to be present.
—————————————-
Computation of Time [Rule XXII]

1. How to compute time. [Sec 1]
a. Applicability: used in computing any period of time prescribed or allowed by
the Rules, or by order of the court, or by any applicable statute.
b. How?
i. the day of the act or event from which the designated period of time begins to run
is to be excluded and
ii. the date of performance included.
c. NB: 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. But as to the extension of time425 to file the required
pleading: it is counted from the expiration of the period, regardless of the fact
that said date is a Saturday, Sunday, or legal holiday.
2. Effect of interruption. [Sec 2].
a. Applicability: Should an act be done which effectively interrupts the
running of the period.
b. When shall the allowable period after such interruption start to run? on
the day after notice of the cessation of the cause thereof. The day of the act that
caused the interruption shall be excluded in the computation of the period.
———————————————————————————————
425
The plaintiff sued the defendant in the RTC for damages allegedly caused by the latter’s
encroachment on the plaintiff's lot. In his answer, the defendant denied the plaintiff’s claim and alleged
that it was the plaintiff who in fact had encroached on his (defendant’s) land. Accordingly, the
defendant counterclaimed against the plaintiff for damages resulting from the alleged encroachment on
his lot. The plaintiff filed an ex parte motion for extension of time to answer the defendant's
counterclaim, but the court denied the motion on the ground that it should have been set for
hearing. On the defendant’s motion, therefore, the court declared the plaintiff in default on the
counterclaim. Was the plaintiff validly declared in default? Why? (5%) SUGGESTED ANSWER:
No, the plaintiff was not validly declared in default. A motion for extension of time to file an
answer may be filed ex parte and need not be set for hearing. [Amante vs. Sunga, 64 SCRA 192
(1975)].
ALTERNATIVE ANSWER: *****The general rule is that a counterclaim must be
answered within ten (10) days from service. (Rule 11, sec. 4). However, a counterclaim that raises
issues which are deemed automatically joined by the allegations of the Complaint need not be
answered [Gojo v. Goyaia, 35 SCRA 557 (1970)]. In this case, the defendant’s counterclaim is a
compulsory counterclaim which arises out or is connected with the transaction and occurrence
constituting the subject matter of the plaintiff’s claim. It raises the same issue of who encroached
on whose land. Hence, there was no need to answer the counterclaim.
3.11. Subpoena [Rule 21]

3.11.1. Subpoena duces tecum [Sec 1] 279
3.11.2. Subpoena ad testificandum [Sec 1] 279
3.11.3. Service of subpoena 279
3.11.4. Compelling attendance of witnesses; contempt 280
3.11.5. Quashing of subpoena [Sec 4] 281
———————————————————————————————
ON SUBPOENA
1. It is a process directed to a person requiring him to attend and to testify at
the hearing or the trial of an action, or at any investigation conducted under the
laws of the Philippines, or for taking of his deposition (Sec. 1, Rule 21).
2. Subpoena is a Latin term which literally means “under the pain of penalty.”
3. Subpoena v. Summons
Subpoena Summons
An order to appear and testify at the hearing Writ notifying of action brought
or for taking deposition. against defendant.
May be served to a non-party. Served on the defendant.
Needs tender of kilometrage, attendance Does not need tender of
fee and reasonable cost of production fee. kilometrage and other fees.
3.11.1. Subpoena duces tecum [Sec 1]

A process directed to a person requiring him to bring with him any books,
documents, or other things under his control (Sec. 1, Rule 21).
3.11.2. Subpoena ad testificandum [Sec 1]

SP AD TESTIFICANDUM SP DUCES TECUM
a process directed to a person requiring him to attend and to a process directed to a person requiring
testify at the hearing or the trial of an action, or at any him to bring with him any books,
investigation conducted by competent authority, or for the taking documents, or other things under
of his deposition his control
1. Subpoena for depositions. [Sec 5]; Requisites

a. an order of the court (the clerk shall not issue a subpoena duces tecum to
any person without it)
b. Proof of service of a notice to take a deposition (as provided in
sections 15 and 25 of Rule 23: Depositions Pending Action; such proof of service
shall constitute sufficient authorization for the issuance of subpoenas for the persons
named in said notice)
*Who issues it? the clerk of the court of the place in which the
deposition is to be taken.
2. Issuance of a Subpoena against a witness who refuses to execute a judicial
affidavit: If the government employee or official, or the requested witness, who is
neither the witness of the adverse party nor a hostile witness, unjustifiably
declines to execute a judicial affidavit or refuses without just cause to make the
relevant books, documents, or other things under his control available for
copying, authentication, and eventual production in court, the requesting party
may avail himself of the issuance of a subpoena ad testificandum or duces tecum
under Rule 21 of the Rules of Court. The rules governing the issuance of a
subpoena to the witness in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit shall be understood to be ex parte
(Sec. 5, A.M. No. 12-8-8-SC).
3.11.3. Service of subpoena

1. Who issues a subpoena [Section 2]? It may be issued by —
(a) the court before whom the witness is required to attend;
(b) the court of the place where the deposition is to be taken;
(c) the officer or body authorized by law to do so in connection with investigations
conducted by said officer or body; or
(d) any Justice of the Supreme Court or of the Court of Appeals in any case or
investigation pending within the Philippines.
***Service of a subpoena shall be made by the sheriff, by his deputy, or by
any other person specially authorized, who is not a party and is not less than 18
years of age (Ibid.). When a subpoena is issued by or on behalf of the Republic of
the Philippines or an officer or agency thereof, the tender need not be made
(Ibid.).
*Rationale for service of subpoena: The service must be made so as to
***allow the witness a reasonable time for preparation and travel to the place of
attendance (Ibid.).
2. Special considerations when application for a subpoena is made to a prisoner:
a. the judge or officer shall examine and study carefully such application to
determine whether the same is made for a valid purpose.
b. As to prisoners sentenced to death, reclusion perpetua or life
imprisonment and who is confined in any penal institution: they shall not be
brought outside the said penal institution for appearance or attendance in any court
unless authorized by the Supreme Court.
3. Rule on subpoena for depositions: Proof of service of notice to take a
deposition, as provided in sections 15 and 25, Rule 23, shall constitute sufficient
authorization for the issuance of subpoenas for the persons named in said notice
by the clerk of the court of the place in which the deposition is to be taken. The
clerk shall not, however, issue a subpoena duces tecum to any such person
without an order of the court (Sec. 5, Rule 21).
4. Form and contents of the subpoena [Section 3] — A subpoena:
a. shall state the name of the court and the title of the action or investigation,
b. shall be directed to the person whose attendance is required, and
c. in the case of a subpoena duces tecum, it shall also contain a reasonable
description of the books, documents or things demanded which must appear to
the court prima facie relevant.
5. How is service of a subpoena made [Sec 6]? In the same manner as personal
or substituted service of summons:
a. The original shall be exhibited and a copy thereof delivered to the person on
whom it is served,
b. GR: tendering to him the fees for one day's attendance and the
kilometrage allowed by the Rules;
XPN: except that, when a subpoena is issued by or on behalf of the Republic
of the Philippines or an officer or agency thereof, the tender need not be made.
c. REASONABLE TIME/COST RULE: The service must be made so as
to allow the witness a reasonable time for preparation and travel to the place of
attendance. If the subpoena is duces tecum, the reasonable cost of producing the
books, documents or things demanded shall also be tendered.
3.11.4. Compelling attendance of witnesses; contempt

******Summary of the rules: Effect of failure to comply with subpoena
a. GR: The court or judge which issued the subpoena may issue a warrant
for the arrest of the witness and make him pay the cost of such warrant and
seizure, if the court should determine that his disobedience was willful and
without just cause. The refusal to obey a subpoena without adequate cause shall
be deemed contempt of the court issuing it (Secs. 8 and 9, Rule 21).
b. XPNs:*****
i. VIATORY RIGHT426 – where the witness resides more than
100 kms.427 from his residence to the place where he is to testify by the
426
TRUE or FALSE. The viatory right of a witness served with a subpoena ad testificandum refers
to his right not to comply with the subpoena. (2009 Bar Question) SUGGESTED ANSWER:
FALSE. The viatory right of a witness, embodied in Sec. 10, Rule 21 of the Rules of Civil
Procedure, refers to his right not to be compelled to attend upon a subpoena, by reason of the
distance from the residence of the witness to the place where he is to testify. ******It is available
only in civil cases (People v. Montejo, 21 SCRA 722[1965]).
427
Q: In an admiralty case filed by A against Y Shipping Lines (whose principal offices are in
Manila) in the Regional Trial Court, Davao City, the court issued a subpoena duces tecum
directing Y, the president of the shipping company, to appear and testify at the trial and to bring
with him several documents.
A. On what valid ground can Y refuse to comply with the subpoena duces tecum? Y can
refuse to comply with the subpoena duces tecum on the ground that he resides more than 50 (now
ordinary course of travel, generally, by overland transportation; or

ii. When the permission of the court in which the detention
prisoner’s case is pending was not obtained (Sec. 10, Rule 21).
1. May a person present in court before a judicial officer be required to testify [Sec
7]? YES, as if he were in attendance upon a subpoena issued by such court or
officer.
2. Rule on Compelling attendance. [Section 8]
a. Applicability: In case of failure of a witness to attend,
b. Court action: the court or judge issuing the subpoena, upon proof of
the service thereof and of the failure of the witness, may issue a warrant to the
sheriff of the province, or his deputy:
i. to arrest the witness and
ii. bring him before the court/officer where his attendance is
required.
c. NB: the cost of such warrant and seizure of such witness shall be paid by
the witness if the court issuing it shall determine that his failure to answer the subpoena was
willful and without just excuse. (11, R23)
3. Contempt. [Sec 9]
a. Applicability: Failure by any person WITHOUT ADEQUATE
CAUSE to obey a subpoena served upon him shall be deemed a contempt of the
court from which the subpoena is issued.
b. NB: If the subpoena was not issued by a court, the disobedience
thereto shall be punished in accordance with the applicable law or Rule.
4. Exceptions. [Sec 10] The provisions of sections 8 and 9 of this Rule shall not
apply to
a. a witness who resides more than one hundred (100) kilometers from
his residence to the place where he is to testify by the ordinary course of travel, or to
b. a detention prisoner if no permission of the court in which his case is pending was
obtained.
3.11.5. Quashing of subpoena [Sec 4]
Section 4. Quashing a subpoena. —
1. Quashing a duces tecum :
a. upon motion promptly made and,
b. in any event, at or before the time specified therein
100) kilometers from the place where he is to testify. (Sec. 9 of former Rule 23; Sec. 10 of new Rule
21).
B. How can A take the testimony of Y and present the documents as exhibits other than
through the subpoena from the Regional Trial Court? (1997 Bar Question) Answer: ******A can take
the testimony of Y and present the documents as exhibits by taking his deposition through oral
examination or written interrogatories. (Rule 24; new Rule 23) He may also file a motion for the
production or inspection of documents. (Rule 27).
Alternative Answer: The witness can also refuse to comply with the subpoena duces tecum on
the ground that the documents are not relevant and there was no tender of fees for one day's
attendance and the kilometrage allowed by the rules.
c. Grounds for the court to quash:******

i. it is unreasonable and oppressive, or
ii. the relevancy of the books, documents or things does not appear, or
iii. if the person in whose behalf the subpoena is issued fails to advance
the reasonable cost of the production thereof.
iv. the witness fees and kilometrage allowed by the Rules were not
tendered when the subpoena was served.
2. Ground for quashing a subpoena ad testificandum:
a. the witness is not bound thereby.
b. the witness fees and kilometrage allowed by the Rules were not
tendered when the subpoena was served.
[] NB: The ground of privileged communication “with a view to
professional employment”—there being on lawyer-client relationship yet—may
not be used to quash a subpoena, but it can be invoked at the trial.428
———————————————————————————————
428
Q: On August 15,2008, Edgardo committed estafa against Petronilo in the amount of P3
Million. Petronilo brought his complaint to the National Bureau of Investigation, which found that
Edgardo had visited his lawyer twice, the first time on August 14, 2008 and the second on August
16, 2008; and that both visits concerned the swindling of Petronilo. During the trial of Edgardo,
the RTC issued a subpoena ad testificandum to Edgardo’s lawyer for him to testify on the
conversations during their first and second meetings. May the subpoena be quashed on the ground
of privileged communication? Explain fully. (4%) SUGGESTED ANSWER:
No, The subpoena may not be simply quashed on the allegation that the testimony to be
elicited constitutes privileged communication. It may be noted that the accused committed the
crime of swindling on August 15, 2008, whereas he first visited his lawyer on August 14, 2008 or
before he committed the swindling. Clearly the conversations the accused had with his lawyer
during such first visit, before he committed the swindling cannot be protected by the privilege
between attorney and client because the crime had not been committed yet and it is no part of
a lawyer’s professional duty to assist or aid in the commission of a crime; hence not in the course
of professional employment.
The second visit by accused Edgardo to his lawyer on the next day (August 16, 2008) after the
swindling was committed may also suffer from the same infirmity as the conversations had during
their first meeting inasmuch as there could not be a complaint made immediately after the
estafa was committed. The privilege covering a lawyer-client relation under Sec. 24, (par(b), Rule 130,
may not be invoked, as it is not a ground for quashal of a subpoena ad testificandum under Section
4, Rule 21 of the Rules of Court. Although the subpoena ad testificandum may not be quashed [when]
the privilege covers conversations “with a view to professional employment." It can be invoked at the
trial but not to quash the subpoena.
3.12. Modes of discovery [Rules 23-28]
WHAT IS DISCOVERY? 284

THE MODES OF DISCOVERY 284
PURPOSES OF THE RULES OF DISCOVERY 285
LIMITATIONS ON MOD 287
3.12.1. Depositions pending action [Rule 23]; 288
a) Meaning of deposition 288
b) Uses; scope of examination 288
c) When may objections to admissibility be made 293
d) When may taking of deposition be terminated or its scope limited 294
DEPOSITIONS PENDING ACTION (DPA) 295
DEPOSITIONS BEFORE ACTION [Sec 1, Rule 24] 296
DEPOSITION PENDING APPEAL [Sec 7. Rule 24] 303
3.12.2. Written interrogatories to adverse parties [Rule 25] 304
a) Consequences of refusal to answer 305
b) Effect of failure to serve written interrogatories 307
RULE 25: Interrogatories to Parties 308
3.12.3. Request for admission 308
a) Implied admission by adverse party 309
b) Consequences of failure to answer request for admission 310
c) Effect of admission 310
d) Effect of failure to file and serve request for admission 310
3.12.4. Production or inspection of documents or things [Rule 27 with one section only]
311
3.12.5. Physical and mental examination of persons [Rule 28] 312
3.12.6. Consequences of refusal to comply with modes of discovery [Rule 29]******313
———————————————————————————————
WHAT IS DISCOVERY?
1. It is a device employed by a party to obtain information about relevant
matters on the case from the adverse party in preparation for the trial (Riano,
2014).
2. As contemplated by the Rules, the device may be used by all the parties to
the case (Ibid.).
3. The modes of discovery are designed to serve as an additional device aside
from a pre-trial, to narrow and clarify the basic issues between the parties, to
ascertain the facts relative to the issues and to enable the parties to obtain the fullest
possible knowledge of the issues and facts before civil trials and thus prevent the
said trials to be carried on in the dark. It is intended to make certain that all issues
necessary to the disposition of a case are properly raised (Tinio v. Manzano,
May 19, 1999).
4. WHEN MODES OF DISCOVERY ARE AVAILED OF: *****In general,
the modes are availed of after the issues have been joined with the
filing of the answer.
THE MODES OF DISCOVERY

1. Depositions pending action (Rule 23)
2. Depositions before action or pending appeal (Rule 24)
3. Interrogatories to parties (Rule 25)
2. Request for admission by adverse party (Rule 26: Admission by
adverse party)
3. Motion for production of documents or inspection of things (Rule
27)
4. Physical and Mental Examination of Persons (Rule 28)
*****Describe briefly at least five (5) modes of discovery under the Rules of Court.
(2000). The modes of discovery are cumulative. They are not alternative nor mutually
exclusive.
Deposition By leave of court after jurisdiction has been obtained over any defendant or over
Pending Action property which is the subject of the action, or without such leave after an answer
(Rule 23) has been served, the testimony of any person, whether a party or not, may be
taken, at the instance of any party, by deposition upon oral examination or written
interrogatories.
Depositions A person who desires to perpetuate his own testimony or that of another person
before action or regarding any matter that may be cognizable in any court of the Philippines,
pending appeal may file a verified petition in the court of the place of the residence of any expected
(Rule 24) adverse party
Written Under the same conditions specified in Sec. 1, Rule 23, any party desiring to elicit
interrogatories to material and relevant facts from any adverse parties shall file and serve upon
adverse parties the latter written interrogatories to be answered by the party served or, if the
(Rule 25) party served is a public or private corporation or a partnership or association, by any officer
thereof competent to testify in its behalf.
Admission by At any time after issues have been joined, a party may file and serve upon
adverse party any other party a written request for the admission by the latter of the
(Rule 26) genuineness of any material and relevant document or of the truth of any material and
relevant matter of fact.
Production or Upon motion of any party showing good cause therefor, the court in which an
inspection of action is pending may order any party to produce and permit the inspection
documents or and copying of any designated documents or order any party to permit entry upon
things designated land or other property in his possession or control for the purpose of
(Rule 27) inspecting or photographing the property or any designated relevant object or
operation thereon.
Physical and mental In an action in which the mental or physical condition of a party is in
examination of controversy, the court in which the action is pending may in its discretion order
persons.
(Rule 28)
him to submit to a physical or mental examination by a physician.
[] Bar areas on the modes of discovery:******

1. They are applicable to special proceedings based on this general rule: “In the
absence of special provisions, the rules provided for in ordinary civil actions shall
be, as far as practicable, applicable in special proceedings.”429
2. On Rule 23—Deposition Pending Action: Although the deposition is not held
in court, failure to appear without a valid reason can subject the person
summoned to a show-cause order and contempt of court.430
3. On Rule 25: Written Interrogatiories to Adverse Parties.431
4. On Rule 26—Admission by Adverse Party: as a mode of discovery, the best
way to obtain an admission from any party regarding the genuineness of any
material and relevant document is through a [2012 BAR] request for admission
under Rule 26, not a motion for production of documents nor written
429
Q: An heir/oppositor in a probate proceeding filed a motion to remove the administrator on the
grounds of neglect of duties as administrator and absence from the country. On his part the
heir/oppositor served written interrogatories to the administrator preparatory to presenting the latter
as a witness. The administrator objected, insisting that the modes of discovery apply only to ordinary
civil actions, not special proceedings. Rule on the matter. (4%) (2008 Bar Question)
SUGGESTED ANSWER: The administrator’s contention that the modes of discovery apply
only to ordinary civil actions and not to special proceedings is not correct. Section 2, Rule 72 of the
Rules of Court provides that: “In the absence of special provisions, the rules provided for in ordinary
civil actions shall be, as far as practicable, applicable in special proceedings.” There is no provision to
the contrary that would preclude the application of the modes of discovery, specifically
Interrogatories to Parties under Rule 25 of the Rules, to probate proceedings.
430
On July 21, 2009, B Lines served on A a "Notice to Take Deposition," setting the deposition on
July 29, 2009 at 8:30 a.m. at the office of its counsel in Makati. A failed to appear at the deposition-
taking, despite notice. As counsel for B Lines, how would you proceed?: As counsel for B Lines (which
gave notice to take the deposition), I shall proceed as follows:
a) Find out why A failed to appear at the deposition-taking, despite notice;
b) If failure was for valid reason, then set another date for taking the deposition;
c) If failure to appear at deposition taking was without valid reason, then I would file a
motion/application in the court where the action is pending, for an Order to show cause for his
refusal to the discovery; and
d) For the court to issue appropriate Order provided under Rule 29 of the Rules, for non-
compliance with the show-cause order, aside from contempt of court.
431
An objection to any interrogatories may be presented within_ days after service thereof: (2012
BAR) a. 15; b. 10; c. 5; d. 20.
interrogatories.
5. On Rule 27—Production or Inspection of Documents or Things. EG: The
defendant has the right to inspect and verify the original of a promissory note
so that he could intelligently prepare his answer.432
5. On Rule 28—Physical and Mental Examination of Persons: If the order for the
conduct of physical and mental examination is defied, the court cannot validly
order arrest of the person in question.433
PURPOSES OF THE RULES OF DISCOVERY

[] Connect these to the different modes of discovery. *****The primary function
of modes is to supplement the pleadings for the purpose of disclosing
the real points of dispute and affording an adequate factual basis
during the preparation for trial. (Jonathan Land Oil)
1. To enable a party to obtain knowledge of material facts within the knowledge of
the adverse party or of third parties through depositions;
2. To obtain knowledge of material facts or admissions from the adverse
432
The plaintiff sued the defendant in the RTC to collect on a promissory note, the terms of
which were stated in the complaint and a photocopy attached to the complaint as an annex. Before
answering, the defendant filed a motion for an order directing the plaintiff to produce the
original of the note so that the defendant could inspect it and verify his signature and the
handwritten entries of the dates and amounts.
A. Should the judge grant the defendant's motion for production and inspection of the original
of the promissory note? Why? (2%) Yes, because upon motion of any party showing good cause,
the court in which the action is pending may order any party to produce and permit the inspection
of designated documents. (Rule 27). The defendant has the right to inspect and verify the original
of the promissory note so that he could intelligently prepare his answer.
B. Assuming that an order for production and inspection was issued but the plaintiff failed to
comply with it, how should the defendant plead to the alleged execution of the note? (3%) *****The
defendant is not required to deny under oath the genuineness and due execution of the
promissory note, because of the non-compliance by the plaintiff with the order for production and
inspection of the original thereof. (Rule 8, sec. 8). ALTERNATIVE ANSWER: The defendant may
file a motion to dismiss the complaint because of the refusal of the plaintiff to obey the order of
the court for the production and inspection of the promissory note. [Rule 29 Sec. 3(c)]
433
Q: Ernie filed a petition for guardianship over the person and properties of his father, Ernesto.
Upon receipt of the notice of hearing, Ernesto filed an opposition to the petition. Ernie, before the
hearing of the petition, filed a motion to order Ernesto to submit himself for mental and physical
examination which the court granted. After Ernie's lawyer completed the presentation of evidence in
support of the petition and the court's ruling on the formal offer of evidence, Ernesto's lawyer filed a
demurrer to evidence. Ernie's lawyer objected on the ground that a demurrer to evidence is not
proper in a special proceeding. (2015): A: NO. The Rule on demurrer to evidence is applicable in
Special Proceedings (Matute v. Court of Appeals, G.R. No. 26751, January 31, 1969). Moreover,
under Section 2, Rule 72 of the Rules of Court, in the absence of special rules, the rules provided
for in ordinary actions shall be applicable, as far as practicable, to special proceedings.
[] If Ernesto defies the court's order directing him to submit to physical and mental
examinations, can the court order his arrest? A: If the order for the conduct of physical and mental
examination is issued as a mode of discovery and Ernesto defies the said order, the court cannot
validly order his arrest (Sec. 3[d], Rule 29).
party through written interrogatories;

3. To obtain admissions from the adverse party regarding the genuineness of
relevant documents or relevant matters of fact through requests for admissions;
4. To inspect relevant documents or objects, and lands or other property in
the possession and control of the adverse party; and
5. To determine the physical or mental condition of a party when such is in
controversy (Koh v. IAC, 144 SCRA 259).
LIMITATIONS ON MOD
******
1. Those matters which are privileged; EG: Trade secrets may not be the subject
of compulsory disclosure by reason of their confidential and privileged
character.434
2. Those under protection order;
3. The modes of discovery must not be conducted in bad faith.
————————————————
3.12.1. Depositions pending action [Rule 23];

depositions before action or pending appeal [Rule 24]
a) Meaning of deposition
1. A deposition is the taking of the testimony of any person, whether he be a party
or not, but at the instance of a party to the action. This testimony is taken out of
court. Deposition may be:
a. An oral examination
b. Written interrogatories (Sec. 1, Rule 23)
2. When available
a. During a pending action (Rule 23) – deposition de benne esse
b. Before action or Pending appeal (Rule 24) – deposition in perpetuam rei
434
Q: Continental Chemical Corporation (CCC) filed a complaint for a sum of money against Barstow
Trading Corporation (BTC) for the latter’s failure to pay for its purchases of industrial chemicals. In its
answer, BTC contended that it refused to pay because CCC misrepresented that the products it
sold belonged to a new line, when in fact they were identical with CCC’s existing products. To
substantiate its defense, BTC filed a motion to compel CCC to give a detailed list of the products’
ingredients and chemical components, relying on the right to avail of the modes of discovery
allowed under Rule 27. CCC objected, invoking confidentiality of the information sought by BTC.
Resolve BTC’s motion with reasons. (3%) (209 Bar Question) SUGGESTED ANSWER:
I will deny the motion. *****The ingredients and chemical components of CCC’s products
are trade secrets within the contemplation of the law. Trade secrets may not be the subject of
compulsory disclosure by reason of their confidential and privileged character. Otherwise, CCC
would eventually be exposed to unwarranted business competition with others who may imitate
and market the same kinds of products in violation of CCC’s proprietary rights. Being privileged, the
detailed list of ingredients and chemical components may not be the subject of mode of
discovery under Rule 27, Section 1 which expressly makes privileged information an exception
from its coverage (AirPhilippines Corporation v. Pennswell, Inc., 540 SCRA 215 [2007]).
memoriam
3. Rule on necessity of leave of court in taking deposition
a. It is necessary
i. Before service of an answer but after the jurisdiction has been
acquired over the defendant or over the property subject of the action;
ii. If the deposition to be taken is that of a prisoner (Sec. 1, Rule 23).
b. It is not necessary: When an answer has already been served
4. Effect of substitution of parties: It does not affect the right to use depositions
previously taken; and when an action has been dismissed and another action
involving the same subject is afterward brought between the same parties or their
representatives or successors-in-interest, all depositions lawfully taken and duly
filed in the former action may be used in the latter as if originally taken therefor
(Sec. 5, Rule 23).
5. Effect of using the deposition of a person
*GR: Taking of the deposition of a person does not make that person a
witness of the party using his deposition (Riano, 2014).
*XPN: The introduction of the deposition, or any part thereof, makes the
deponent the witness of the party introducing the deposition (Sec. 8, Rule 23).
***XPN to the XPN: Introduction of deposition does not make the
deponent his witness:
i. If the deposition is used for impeaching or contradicting the
deponent (Sec. 8, Rule 23);or
ii. If the adverse party uses the deposition of the other party (Sec.
4(b), Rule 23).
6. Rebuttal of a deposition: At the trial or hearing, ***any party may rebut any
relevant evidence contained in a deposition whether introduced by him or by any
other party (Sec. 9, Rule 23).
7. Persons before whom Deposition may be taken
a. If within the Philippines
i. Judge;
ii. Notary public (Sec. 10, Rule 23); or
iii. Any person authorized to administer oaths, as stipulated by the
parties in writing (Sec. 14, Rule 23).
b. If outside the Philippines
i. On notice, before a secretary of embassy or legation, consul-general,
consul, vice-consul, or consular agent of the Philippines (Sec. 11, Rule 23);
ii. Before such person or officer as may be appointed by commission
or letters rogatory; or
iii. Any person authorized to administer oaths, as stipulated by the
parties in writing (Sec. 14, Rule 23).
8. Issuance of Letters Rogatory or Commission: They shall be issued only when
necessary or convenient, on application and notice, and on such terms and
with such direction as are just and appropriate (Sec. 12, Rule 23).
9. Commission v. Letters Rogatory******

Commission Letters Rogatory
Instrument issued by a court of justice or An instrument sent in the name and by the authority
other competent tribunal, **directed to a of a judge or court of another, requesting the latter
magistrate by his official designation or to to cause to be examined, upon interrogatories filed in
an individual by name, authorizing him to a case pending before the former, a witness who is
take depositions of the witness named within the jurisdiction of the judge or court to
therein whom such letters are addressed (Dasmarinas
Garments, Inc. v. Reyes 1993).
Directed to officials of the issuing jurisdiction *****Requests to foreign tribunals
Taken in accordance with the rules laid The methods of procedure are under the control
down by the court issuing the commission of foreign tribunal (Dulay v. Dulay, 2005.)
***Letters rogatory may be applied for and issued only after a commission has
been returned unexecuted (Dasmarinas Garments, Inc. v. Reyes, et al, G.R. No.
108229, August 24, 1993).
***Leave of court is not required when the deposition is to be taken
before a secretary of embassy or legation, consul general, consul, vice-consul or
consular agent of the Republic of the Philippines and the defendant’s answer
has already been served. However, if the deposition is to be taken in a foreign
country where the Philippines has no secretary of embassy or legation, consul general,
consul, vice-consul or consular agent, it may be taken only before such person
or officer as may be appointed by commission or under letters rogatory
(Dulay v. Dulay, G.R. No. 158857, November 11, 2005).
10. Disqualifications of a deposition officer***
a. One who is related to the deponent within the 6th degree of
consanguinity or affinity;
b. An employee or attorney of one of the parties;
c. One who is related to the attorney of the deponent within the same
degree or employee of such attorney; and
d. One who is financially interested in the action (Sec. 13, Rule 23).
11. Stipulation in writing for the taking of depositions: The parties may stipulate in
writing as to the person authorized to administer oaths, as to the time and place,
but not as to the manner of taking depositions which should be in accordance
with the rules (Feria & Noche, 2013).
12. Requirement in taking deposition upon oral examination: A party desiring to
take the deposition of any person upon oral examination shall give reasonable
notice in writing to every other party to the action (Sec. 15, Rule 23).
13. Statement of the notice: It shall state the time and place for taking the
deposition and the name and address of each person to be examined, if known,
and if the name is not known, a general description sufficient to identify him or
the particular class or group to which he belongs (Sec. 15, Rule 23).
*On motion of any party upon whom the notice is served, the court may for
cause shown enlarge or shorten the time (Ibid.).

14. Period for the Court to make orders for the protection of parties and
deponents: After notice is served for taking a deposition by oral examination,
upon motion seasonably made by any party or by the person to be examined and
for good cause shown, the court in which the action is pending may make orders
for the protection of parties and deponents (Sec. 16, Rule 23).
15. Orders for the protection of parties and deponents
a. That the deposition shall not be taken;
b. That it may be taken only at some designated place other than that stated
in the notice;
c. That it may be taken only on written interrogatories;
d. That certain matters shall not be inquired into;
e. That the scope of the examination shall be held with no one present
except the parties to the action and their officers or counsel;
f. That after being sealed, the deposition shall be opened only by order of
the court, or that secret processes, developments, research need not be closed;
g. That the parties shall simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the court; or
h. The court may make any other order which justice requires to protect the
party or witness from annoyance, embarrassment, or oppression (Sec. 16, Rule
23).
16. Objections to be noted by the officer upon the deposition—All objections
made at the time of the examination to the:
a. Qualifications of the officer taking the deposition;
b. Manner of taking the deposition;
c. Evidence presented;
d. Conduct of any party; or
e. Any other objection to the proceedings (Sec. 17, Rule 23).
***A deposition officer has no authority to rule on the objection.
Evidence objected to shall be taken subject to the objection, which will be ruled
upon by the court when the deposition is offered in evidence (Feria & Noche,
2013).
17. Option of parties NOT participating in the oral examination: The parties may
transmit written interrogatories to the officers, who shall propound them to the
witness and record the answers verbatim (Sec. 17, Rule 23).
18. Changes which the witness desire to make: Any changes in form or substance
shall be entered upon the deposition by the officer with a statement of the reasons
given by the witness for making them (Sec. 19, Rule 23).
19. ***Necessity of signing deposition
*GR: It shall be signed by the witness.
*XPN:
a. Parties by stipulation waive the signing;
b. Witness is ill;
c. Witness cannot be found;

d. Witness refuses to sign (Sec. 19, Rule 23).
***If the witness does not sign the deposition, the officer shall sign it and
state on the record the fact of the waiver or of the illness or absence of the
witness or the fact of refusal to sign together with the reason given therefor, if
any, and the deposition may then be used as fully as though signed, unless on
a motion to suppress under Sec. 29(f), Rule 23, the court holds that the reasons
given for the refusal to sign require rejection of the deposition in whole or in part
(Sec. 19, Rule 23).
20. Period to furnish a copy of the deposition to any party or to the deponent: He
shall furnish a copy upon payment of reasonable charges therefor (Sec. 22, Rule
23).
21. Consequence of Failure to attend by the party giving notice: The court may
order the party giving the notice to pay such other party the amount of the
reasonable expenses incurred by him and his counsel in so attending, including
reasonable attorney’s fees (Sec. 23, Rule 23).
22. Consequence of Failure of a party giving notice to serve subpoena: If because
of such failure, the witness does not attend, and if another party attends in person
or by counsel because he expects the deposition of that witness to be taken, the
court may order the party giving the notice to pay to such other party the amount
of the reasonable expenses incurred by him and his counsel in so attending,
including reasonable attorney’s fees (Sec. 24, Rule 23).
23. Conduct of deposition upon written interrogatories: A party desiring to take
the deposition of any person upon written interrogatories shall serve them upon
every other party with a notice stating the name and address of the person who is
to answer them and the name or descriptive title and address of the officer before
whom the deposition is to be taken. Within 10 days thereafter, a party so served
may serve cross-interrogatories upon the party proposing to take the deposition.
Within 5 days thereafter, the latter may serve re-direct interrogatories upon a party
who has served cross-interrogatories. Within 3 days after being served with re-
direct interrogatories, a party may serve recross-interrogatories upon the party
proposing to take the deposition (Sec. 25, Rule 23).
*The duties of the officer under Secs. 17, 19, 20, 21 & 22 of Rule 23 shall
also be followed on deposition upon written interrogatories (Secs. 26 & 27, Rule
23).
24. Who shall file a petition for deposition before action under Rule 24: Any
person who wants to perpetuate his own testimony or that of another person
regarding any matter that may be cognizable in any court of the Philippines (Sec.
1, Rule 24).
25. Contents of the petition—The petition shall be entitled in the name of the
petitioner and shall show that:
a. The petitioner expects to be a party to an action in a court of the
Philippines but is presently unable to bring it or cause it to be brought;
b. The subject matter of the expected action and his interest therein;
c. The facts which he desires to establish by the proposed testimony and his
reasons for desiring to perpetuate it;
d. The names or a description of the persons he expects will be adverse
parties and their addresses so far as known; and
e. The names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each, and shall ask for
an order authorizing the petitioner to take the depositions of the persons to be
examined named in the petition for the purpose of perpetuating their testimony
(Sec. 2, Rule 24).
26. Rule on notice and service of depositions before action: The petitioner shall
serve a notice upon each person named in the petition as an expected adverse
party, together with a copy of the petition, stating that the petitioner will apply to
the court, at a time and place named therein, for the order described in the
petition. At least 20 days before the date of the hearing, the court shall cause
notice thereof to be served on the parties and prospective deponents in the
manner provided for service of summons (Sec. 3, Rule 24).
27. Contents of the motion for deposition pending appeal—The motion shall
state:
a. The names and addresses of the persons to be examined;
b. The substance of the testimony which he expects to elicit from each;
c. The reason for perpetuating their testimony (Sec. 7, Rule 24).
*If the court finds that the perpetuation of the testimony is proper to avoid
a failure or delay of justice, it may make an order allowing the depositions to be
taken, and thereupon the depositions may be taken and used in the same manner
and under the same conditions as are prescribed under Rule 23 (Sec. 7, Rule 24).
b) Uses; scope of examination

1. Persons for whom deposition may be used against
a. Any part or all of the deposition, so far as admissible under the rules of
evidence, may be used against:
b. Any party who was present or represented at the taking of the deposition;
or
c. One who had due notice of the deposition (Sec. 4, Rule 23)
2. Uses of depositions******
a. Contradicting or impeaching the testimony of the deponent as a witness;
b. Any purpose by the adverse party where the deponent is a party; or
c. Any purpose by any party if the court finds that: (DR. USE)
i. The witness is dead;
ii. The witness resides more than 100 kms. from the place of trial or
hearing, or is out of the Philippines. Unless435 it appears that his absence was
procured by the party offering the deposition;
iii. The witness is unable to testify because of age, sickness,
infirmity or imprisonment;
iv. *****The party offering the deposition has been unable to
procure the attendance of the witness by subpoena;
v. Upon application and notice, that such exceptional
circumstances exist as to make it desirable in the interest of justice (Sec. 4, Rule
23).
3. Dual function of depositions******
a. Rule 23 – method of discovery, with use on trial not necessarily
contemplated;
b. Rule 24 – a method of presenting testimony.
4. Use of deposition pending appeal: Depositions are taken pending appeal with
the view to their being used in the event of further proceeding in the court of
origin or appellate court (Sec. 7, Rule 24).
***The deposition taken under this Rule is admissible in evidence in any
action subsequently brought involving the same subject matter (Sec. 6, Rule 24).
5. Scope of the examination of the deponent—Unless otherwise ordered by the
court as provided by Sec. 16 or 18, Rule 23, the deponent may be examined
regarding any matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any other party,
including the:
a. Existence;
b. Description;
c. Nature;
d. Custody;
e. Condition;
f. Location of any books, documents, or other tangible things; and
g. The identity and location of persons having knowledge of relevant facts
(Sec. 2, Rule 23).
c) When may objections to admissibility be made

1. Grounds for termination of deposition: Subject to the provisions of Sec. 29,
Rule 23, ***objection may be made at the trial or hearing to receiving in
evidence any deposition or part thereof for any reason which would require the
435
The deposition of a witness, whether or not a party, may be used for any purpose if the Court finds
the following circumstances are attendant, EXCEPT: (2012 BAR)
a. when thewitnessis dead.
b. whenthewitnessis incarcerated.
c. when the witness is outside the Philippines and absence is procured by the party
offering deposition.
d. whenthewitnessis89yearsoldand bed-ridden.
exclusion of the evidence if the witness were then present and testifying (Sec. 6,
Rule 23).
2. Effect of errors and irregularities in depositions as stated under Sec. 29, Rule
23
a. As to notice – All errors and irregularities in the notice for taking a
deposition are waived unless written objection is promptly served upon the party giving
the notice;
b. As to disqualification of officer – Objection to taking a deposition
because of disqualification of the officer before whom it is to be taken is
**waived unless made before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or could be discovered with
reasonable diligence;
c. As to competency or relevancy of evidence – Objections to the
competency of witness or the competency, relevancy, or materiality of testimony
are not waived by failure to make them before or during the taking of the
deposition, unless the ground, of the objection is one which might have been
obviated or removed if presented at that time;
d. As to oral examination and other particulars – Errors and irregularities
occurring at the oral examination in the manner of taking the deposition in the
form of the questions or answers, in the oath or affirmation, or in the conduct of
the parties and errors of any kind which might be obviated, removed, or cured if
promptly prosecuted, are waived unless reasonable objection thereto is made at
the taking of the deposition;
e. As to form of written interrogatories – Objections to the form of written
interrogatories submitted under Secs. 25 and 26 are waived unless served in
writing upon the party propounding them within the time allowed for serving
succeeding cross or other interrogatories and within 3 days after service of the last
interrogatories authorized;
f. As to manner of preparation – Errors and irregularities in the manner in
which the testimony is transcribed or the deposition is prepared, signed, certified,
sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer under
Secs. 17, 19, 20 and 26 are waived unless a motion to suppress the deposition or
some part thereof is made with reasonable promptness after such defect is, or
with due diligence might have been, ascertained (Sec. 29, Rule 23).
d) When may taking of deposition be terminated or its scope limited

1. Grounds for termination of deposition—At any time during the taking of the
deposition, on motion or petition of any party or of the deponent, and upon
showing that the examination is conducted in:
a. Bad faith;
b. Such manner as unreasonably to annoy, embarrass, or oppress the
deponent party (Sec. 18, Rule 23); or
c. When the constitutional privilege against self-incrimination is invoked by
deponent or his counsel.

*If the order made terminates the examination, it shall be resumed
thereafter only upon the order of the court in which the action is pending. Upon
demand of the objecting party or deponent, the taking of the deposition shall be
suspended for the time necessary to make a notice for an order. In granting or
refusing such order, the court may impose upon either party or upon the witness
the requirement to pay such costs or expenses as the court may deem reasonable
(Sec. 18, Rule 23).
2. Protection order v. motion to terminate or limit examination
Protection Order (Sec. 16, Rule 23) Motion to Terminate or Limit Examination
(Sec. 18, Rule 23)
Provides protection to the party or Provides protection during the taking of deposition.
witness before the taking of deposition.
The Motion is filed with the court in Motion or petition is filed with the court in which the
which the action is pending. action is pending or the RTC of the place where the
deposition is being taken.
DEPOSITIONS PENDING ACTION (DPA)

1. When DPA is applied for [Sec 1]
a. By leave of court: after jurisdiction has been obtained over any defendant
or over property which is the subject of the action, or
b. Without leave of court: after an answer has been served,
2. Purpose: to take the testimony of any person, whether a party or not
3. Who can ask for it? at the instance of any party.
4. How? by deposition upon
a. oral examination or
b. written interrogatories.
5. May the attendance of witnesses be compelled? YES, by the use of a subpoena
(Rule 21). Depositions shall be taken only in accordance with these Rules.
*The deposition of a person confined in prison may be taken only by
leave of court on such terms as the court prescribes.
6. Scope of examination. [Sec 2]
• GR: the deponent may be examined regarding any matter, not privileged,
which is relevant to the subject of the pending action, whether relating to the claim
or defense of any other party, including the existence, description, nature, custody,
condition, and location of any books, documents, or other tangible things and
the identity and location of persons having knowledge of relevant facts.
• XPN: Unless otherwise ordered by the court as provided by section 16 or 18
• Section 16. Orders for the protection of parties and deponents.
a. When applicable? After notice is served for taking a deposition by oral
examination.
b. How and Who applies? upon motion seasonably made

i. by any party or
ii. by the person to be examined
c. Ground: for good cause shown.
d. Court action: the court in which the action is pending may make an
order
i. that the deposition shall not be taken, or
ii. that it may be taken only at some designated place other than that stated
in the notice, or
iii. that it may be taken only on written interrogatories, or
iv. that certain matters shall not be inquired into, or
v. that the scope of the examination shall be held with no one present except
the parties to the action and their officers or counsel, or
vi. that after being sealed the deposition shall be opened only by order of the
court, or
vii. that secret processes, developments, or research need not be disclosed, or
viii. that the parties shall simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by the court or
ix. the court may make any other order which justice requires to
protect the party or witness from annoyance, embarrassment, or
oppression
e. Underlying purpose of these orders: to protect the party or witness
from annoyance, embarrassment, or oppression.
• Section 18. Motion to terminate or limit examination.
a. When applicable: At any time during the taking of the deposition,
b. How and who? on motion or petition of any party or of the deponent, c. c.
Ground: upon a showing that the examination is being conducted in
bad faith or in such manner as unreasonably to annoy, embarrass, or
oppress the deponent or party,
d. Court action: the court in which the action is pending or the RTC of the place
where the deposition is being taken may order the officer conducting the
examination
i. to cease forthwith from taking the deposition, or
ii. may limit the scope and manner of the taking of the deposition,
as provided in section 16, supra.
e. What if the order made terminates the examination, when shall it be
resumed? only upon the order of the court in which the action is
pending.
f. Other matters:
i. Upon demand of the objecting party or deponent, the taking of the deposition
shall be suspended for the time necessary to make a notice for an
order.
ii. In granting or refusing such order, the court may impose upon
either party or upon the witness the requirement to pay such costs or
expenses as the court may deem reasonable.
7. Rule on Examination and cross-examination of deponents. [Sec 3]: it may proceed as
permitted at the trial under sections 3 to 18 of Rule 132 [Rule on Presentation of
Evidence].
8. Use of depositions. [Sec 4].
a. When used: At the trial or upon the hearing of a motion or an interlocutory
proceeding;
b. Which part? any part or all of a deposition, so far as admissible under the
rules of evidence,
c. Used against whom? against any party who was present or represented
at the taking of the deposition or who had due notice thereof, in accordance
with any one of the following provisions:
(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a witness;
(b) The deposition of a party or of any one who at the time of taking the
deposition was an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party
for any purpose;
(c) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the court finds: (1) that the witness is dead, or (2)
that the witness resides at a distance more than one hundred (100) kilometers
from the place of trial or hearing, or is out of the Philippines, unless it appears that
his absence was procured by the party offering the deposition, or (3) that the
witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment, or (4) that the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or (5) upon application
and notice, that such exceptional circumstances exist as to make it desirable, in
the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used;
and
(d) If only part of a deposition is offered in evidence by a party, the
adverse party may require him to introduce all of it which is relevant to the
part introduced, and any party may introduce any other parts.
9. Effect of substitution of parties: it does not affect the right to use depositions
previously taken;
*Requisites when all depositions lawfully taken and duly filed in a previous
action may be used in a subsequent action as if originally taken therefor:
a. an action has been dismissed and
b. another action involving the same subject is afterward brought
between the same parties or their representatives or successors in interest.
10. Objections to admissibility. [Sec 6].
*GR: objection may be made at the trial or hearing, to receiving in

evidence any deposition or part thereof, for any reason which would require the exclusion of
the evidence if the witness were then present and testifying
*XPN: Subject to the provisions of Section 29. Effect of errors and
irregularities in depositions.
(a) As to notice. — All errors and irregularities in the notice for taking a deposition
are waived unless written objection is promptly served upon the party giving
the notice.
(b) As to disqualification of officer. — Objection to taking a deposition because
of disqualification of the officer before whom it is to be taken is waived unless
made
i. before the taking of the deposition begins or
ii. as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
(c) As to competency or relevancy of evidence. — Objections to the competency of
witness or the competency, relevancy, or materiality of testimony are not waived
by failure to make them before or during the taking of the deposition, unless
the ground of the objection is one which might have been obviated or removed if
presented at that time.
(d) As to oral examination and other particulars. — Errors and irregularities
occurring at the oral examination in the manner of taking the deposition in the
form of the questions or answers, in the oath or affirmation, or in the conduct of
the parties and errors of any kind which might be obviated, removed, or cured
if promptly prosecuted, are waived unless reasonable objection thereto is
made at the taking of the deposition.
(e) As to form of written interrogatories. — Objections to the form of written
interrogatories submitted under sections 25 and 26 of this Rule are waived unless
served in writing upon the party propounding them within the time allowed for
serving succeeding cross or other interrogatories and within three (3) days after
service of the last interrogatories authorized.
(f) As to manner of preparation. — Errors and irregularities in the manner in
which the testimony is transcribed or the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by the officer under sections 17, 19, 20
and 26 of this Rule are waived unless a motion to suppress the deposition or some
part thereof is made with reasonable promptness after such defect is, or with due
diligence might have been, ascertained.
11. Effect of taking depositions. [Sec 7] A party shall not be deemed to make a
person his own witness for any purpose by taking his deposition.**
12. Effect of using depositions. [Sec 8] The introduction in evidence of the deposition or
any part thereof for any purpose other than that of contradicting or
impeaching the deponent makes the deponent the witness of the party
introducing the deposition, but this shall not apply to the use by an adverse party
of a deposition as described in paragraph (b) of section 4 of this Rule, i.e., The
deposition of a party or of any one who at the time of taking the deposition was
an officer, director, or managing agent of a public or private corporation,
partnership, or association which is a party may be used by an adverse party for
any purpose.
13. Rebutting deposition. [Sec 9] At the trial or hearing any party may rebut any
relevant evidence contained in a deposition whether introduced by him or by
any other party.
14. Persons before whom depositions may be taken within the Philippines. [Sec 10]
Within the Philippines depositions may be taken before any judge, notary
public, or the person referred to in section 14, infra.
*Section 14. Stipulations regarding taking of depositions. — If the parties so
stipulate in writing, depositions may be taken before any person authorized to
administer oaths, at any time or place, in accordance with these Rules and when so
taken may be used like other depositions.
15. Persons before whom depositions may be taken in foreign countries. — In a foreign
state or country, depositions may be taken
(a) on notice before a secretary of embassy or legation, consul general, consul, vice-
consul, or consular agent of the Republic of the Philippines,
(b) before such person or officer as may be appointed by commission or
under letters rogatory; or
*Section 12. Commission or letters rogatory. — A commission or letters
rogatory shall be issued only when necessary or convenient, on application
and notice, and on such terms, and with such direction as are just and
appropriate.
- Officers may be designated in notices or commissions either by name
or descriptive title and
- letters rogatory may be addressed to the appropriate judicial authority
in the foreign country.
(c) the person referred to in section 14, supra.
(12a, R24)
16. Disqualification by interest. [Sec 13]. No deposition shall be taken before a person
who is
a. a relative within the sixth degree of consanguinity or affinity, or
b. employee or counsel of any of the parties, or who is
c. a relative within the same degree, or employee of such counsel; or who
d. is financially interested in the action.
17. Deposition upon oral examination; notice; time and place. [Sec 15]
a. Who: A party desiring to take the deposition of any person upon oral
examination;
b. What: he shall give reasonable notice in writing, to every other party to the
action.
c. Content of notice: The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined, if known, and if
the name is not known, a general description sufficient to identify him or the particular
class or group to which he belongs.
d. Time: On motion of any party upon whom the notice is served, the court may
for cause shown enlarge or shorten the time. (15, R24)
18. Record of examination, oath; objections. [Sec 17]
a. Duty of the officer before whom the deposition is to be taken:
i. he shall put the witness on oath and
ii. shall personally, or by some one acting under his direction and in his
presence, record the testimony of the witness.
b. The testimony shall be taken stenographically unless the parties agree
otherwise.
c. All objections made at the time of the examination to the qualifications of
the officer taking the deposition, or to the manner of taking it, or to the
evidence presented, or to the conduct of any party, and any other objection
to the proceedings, shall be noted by the officer upon the deposition. Evidence
objected to shall be taken subject to the objections.
d. In lieu of participating in the oral examination, parties served with notice of
taking a deposition may transmit written interrogatories to the officers, who shall
propound them to the witness and record the answers verbatim.
19. Submission to witness; changes; signing. [Sec 19]
a. When the testimony is fully transcribed, the deposition shall be submitted to
the witness for examination and shall be read to or by him, unless such
examination and reading are waived by the witness and by the parties.
b. Any changes in form or substance which the witness desires to make
shall be entered upon the deposition by the officer with a statement of the reasons given by
the witness for making them.
c. The deposition shall then be signed by the witness, unless
i. the parties by stipulation waive the signing or
ii. the witness is ill or cannot be found or refuses to sign.
*If the deposition is not signed by the witness, the officer shall sign
it and state on the record the fact of the waiver or of the illness or absence of the
witness or the fact of the refusal to sign together with the reason be given therefor, if
any, and the deposition may then be used as fully as though signed, unless
on a motion to suppress under section 29 (f) of this Rule, the court holds that the
reasons given for the refusal to sign require rejection of the deposition in whole
or in part.
- Sec 29 (f) As to manner of preparation. — Errors and irregularities in
the manner in which the testimony is transcribed or the deposition is prepared,
signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the
officer under sections 17, 19, 20 and 26 of this Rule are waived unless a motion
to suppress the deposition or some part thereof is made with reasonable
promptness after such defect is, or with due diligence might have been, ascertained.
20. Certification, and filing by officer. [Sec 20]
1. The officer shall certify on the deposition

a. that the witness was duly sworn to by him and
b. that the deposition is a true record of the testimony given by the witness. 2.
He shall then securely seal the deposition in an envelope indorsed with the title
of the action and marked "Deposition of (here insert the name of witness)" 3. and
shall promptly file it with the court in which the action is pending or send it by
registered mail to the clerk thereof for filing.
*Notice of filing. [Sec 21] The officer taking the deposition shall give prompt
notice of its filing to all the parties. (21, R24)
*Furnishing copies. [Sec 22] Upon payment of reasonable charges therefor, the
officer shall furnish a copy of the deposition to any party or to the deponent.
21. Effect of some failures:
a. Sec 23. Failure to attend of party giving the notice of the taking of a
deposition and proceed therewith and another attends in person or by counsel
pursuant to the notice: The court may order the party giving the notice to pay
such other party the amount of the reasonable expenses incurred by him and
his counsel in so attending, including reasonable attorney's fees.
b. Sec 24. Failure of party giving notice of a deposition of a witness to serve
subpoena upon him and the witness because of such failure does not attend,
and if another party attends in person or by counsel because he expects the
deposition of that witness to be taken: The court may order the party giving the
notice to pay to such other party the amount of the reasonable expenses
incurred by him and his counsel in so attending, including reasonable attorney's fees.
DEPOSITION UPON WRITTEN INTERROGATORIES

1. Deposition upon written interrogatories; service of notice and of interrogatories. [Section 25]
a. Who: A party desiring to take the deposition of any person upon written
interrogatories
b. What: he shall serve them upon every other party with a notice stating
i. the name and address of the person who is to answer them and
ii. the name or descriptive title and address of the officer before whom
the deposition is to be taken.
c. Within ten (10) days thereafter, a party so served may serve cross-
interrogatories upon the party proposing to take the deposition.
d. Within five (5) days thereafter, the latter may serve re-direct
interrogatories upon a party who has served cross-interrogatories.
e. Within three (3) days after being served with re-direct interrogatories, a
party may serve recross-interrogatories upon the party proposing to take the
deposition.
2. Officers to take responses and prepare record. [Sec 26]
a. What: A copy of the notice and copies of all interrogatories served shall
be delivered
b. By whom: by the party taking the deposition
c. To whom: to the officer designated in the notice, who shall proceed

promptly, in the manner provided by sections 17, 19 and 20 of this Rule, to take
the testimony of the witness in response to the interrogatories and to prepare,
certify, and file or mail the deposition, attaching thereto the copy of the notice
and the interrogatories received by him.
3. Notice of filing and furnishing copies. [Sec 27] When a deposition upon
interrogatories is filed, the officer taking it shall promptly give notice thereof to
all the parties, and may furnish copies to them or to the deponent upon payment
of reasonable charges therefor.
4. Order for the protection of parties and deponents. [Sec 28]
a. When: After the service of the interrogatories and prior to the taking of the
testimony of the deponent,
b. How and Who: on motion promptly made by a party or a deponent,
c. Ground: for good cause shown,
d. Court action: the court, in which the action is pending, may
i. make any order specified in sections 15 (Deposition upon oral
examination; notice; time and place), 16 (Orders for the protection of parties and deponents) and
18 (Motion to terminate or limit examination) of this Rule which is appropriate and just
or
ii. an order that the deposition shall not be taken before the officer designated
in the notice or
iii. that it shall not be taken except upon oral examination.
DEPOSITIONS BEFORE ACTION [Sec 1, Rule 24]

1. Purpose: A person who desires to perpetuate his own testimony or that of
another person.
2. Content of testimony: regarding any matter that may be cognizable in any court
of the Philippines
3. How? file a verified petition in the court of the place of the residence of any expected
adverse party.
4. Contents of petition. [Sec 2] The petition shall be entitled in the name of the
petitioner and shall show:
(a) that the petitioner expects to be a party to an action in a court of the
Philippines but is presently unable to bring it or cause it to be brought;
(b) the subject matter of the expected action and his interest therein;
(c) the facts which he desires to establish by the proposed testimony and
his reasons for desiring to perpetuate it;
(d) the names or a description of the persons he expects will be adverse parties
and their addresses so far as known; and
(e) the names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each, and shall ask for
an order authorizing the petitioner to take the depositions of the persons to
be examined named in the petition for the purpose of perpetuating their
testimony.
5. Notice and service. [Sec 3] The petitioner shall serve a notice
a. upon each person named in the petition as an expected adverse party,
together with a copy of the petition, stating that the petitioner will apply to the
court, at a time and place named therein, for the order described in the petition.
b. At least twenty (20) days before the date of the hearing, the court shall
cause notice thereof to be served on the parties and prospective deponents in the
manner provided for service of summons.
6. Order and examination. [Sec 4] If the court is satisfied that the perpetuation of the
testimony may prevent a failure or delay of justice, it shall make an order
a. designating or describing the persons whose deposition may be taken and
b. specifying the subject matter of the examination and
c. whether the depositions shall be taken upon oral examination or
written interrogatories.
*NB: The depositions may be taken in accordance with Rule 23 before the hearing
[Sec 4]. For the purpose of applying Rule 23 to depositions for perpetuating
testimony, each reference therein to the court in which the action is pending shall be
deemed to refer to the court in which the petition for such deposition was
filed [Sec 5]
7. Use of deposition. [Sec 6] If a deposition to perpetuate testimony is taken under
this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in
any action involving the same subject matter subsequently brought in
accordance with the provisions of sections 4 and 5 of Rule 23.
DEPOSITION PENDING APPEAL [Sec 7. Rule 24]

1. When applicable:
a. If an appeal has been taken from a judgment of a court, including the Court
of Appeals in proper cases, or
b. before the taking of an appeal if the time therefor has not expired,
2. Where to file: the court in which the judgment was rendered
3. Purpose: to allow the taking of depositions of witnesses to perpetuate their
testimony for in the event of further proceedings in the said court.
4. How? The party who desires to perpetuate the testimony may make a motion in the
said court for leave to take the depositions, upon the same notice and service thereof
as if the action was pending therein.
5. Content: The motion shall state
(a) the names and addresses of the persons to be examined and the
substance of the testimony which he expects to elicit from each, and
(b) the reason for perpetuating their testimony.
6. Court action: If the court finds that the perpetuation of the testimony is proper to
avoid a failure or delay of justice, it may make an order allowing the deposition
to be taken,
6. Procedure: after such order, the depositions may be taken and used in the same manner
and under the same conditions as are prescribed in the Rules for depositions taken in
pending actions, supra.
————————————————
3.12.2. Written interrogatories to adverse parties [Rule 25]

1. Purpose of interrogatories to parties: The framers of the new court rules
intended that the rules should provide ample facilities for discovery of facts before
trial so that surprise at the trial and possible miscarriage of justice might be
avoided. A purpose of this rule was to ****obtain admissions and thus limit
subjects of controversy at trial and avoid unnecessary testimony and waste of
time in preparation (Feria & Noche, 2013).
****The answers may now be used as judicial admissions of the adverse
party (Ibid.).
2. Interrogatories vs. bill of particulars******
Interrogatories Bill of Particulars
Interrogatories to parties are **not directed to a Designed to **clarify ambiguities in a

particular pleading. Instead, they seek to pleading or to state with sufficient definiteness
disclose all material and relevant facts from a allegations in a pleading. It is therefore directed to
party (Sec. 1, Rule 25). a pleading (Sec. 1, Rule 12).
A party may properly seek disclosure of matters A party may properly seek disclosure only of
of proof which may later be made a part of matters which define the issues and become a
the records of evidence. part of the pleadings.
***If a motion to a bill of particulars is denied, it will not bar the party to
avail of modes of discovery.
3. Does an unsigned deposition have no force and effect? ***A deposition not
signed does not preclude its use during the trial. A DEPONENT’S
SIGNATURE to the deposition is not in all events indispensable since the
presence of signature goes primarily to the form of deposition (Ayala Land v.
Tagle, G.R. No. 153667, August 11, 2005).
4. Depositions upon written interrogatories under Sec. 25, Rule 23 v.
Interrogatories to parties under Rule 25***
Depositions Upon Written Interrogatories to Parties (Sec. Interrogato-ries to Parties (Rule 25)
25, Rule 23)
Deponent Party or ordinary witness Party only***
Procedure With intervention of the officer authorized by the No intervention. Written
Court to take deposition. Not served upon the adverse interrogatories are directed to the
party directly. They are instead delivered to the party himself.Served directly
officer before whom the deposition is to be taken (Sec. upon the adverse party (Sec. 1,
26, Rule 23). Rule 25).
Scope Direct, cross, redirect, re-cross Only one set of interrogatories
Interrogato-ries No fixed time 15 days to answer unless extended
or reduced by the court
Binding Effect Binding to anyone who is present during the deposition. Binding only to the parties.
5. Procedure in taking interrogatories436—The mode of discovery is availed of

a. by filing and serving upon the adverse party written interrogatories to
be answered by the party served.
b. If the party is a juridical entity, it shall be answered by any of its officers
competent to testify in its behalf (Sec. 1, Rule 25). The interrogatories shall be
answered fully in writing and shall be signed and sworn to by the person making
them.
**No party may, without leave of court, serve more than one set of
interrogatories to be answered by the same party (Sec. 4, Rule 25).
6. How to answer interrogatories: The interrogatories shall be answered fully in
writing and shall be signed and sworn to by the person making them. The party
upon whom the interrogatories have been served shall file and serve a copy of the
answers on the party submitting the interrogatories within 15 days after service
thereof, unless the court, on motion and for good cause shown, extends or
shortens the time (Sec. 2, Rule 25).
***The party against whom it is directed may make objections to the
interrogatories (Sec. 2, Rule 25).
*Objections to the interrogatories: Objections shall be presented to the
court within 10 days after service of the interrogatories. The filing of the
objections shall have the effect of deferring the filing and service of the
answer to the interrogatories (Sec. 3, Rule 25).
7. Necessity of leave of court before a party may be served with written
interrogatories: It is **necessary before answer has been served because, at
that time, the issues are not yet joined and the disputed facts are not yet clear.
However, it is not necessary after answer has been served, for the first set of
interrogatories.
8. Scope and use of interrogatories: Interrogatories may relate to any matters that
can be inquired into under Sec. 2 of Rule 23, and the answers may be used for
the same purposes provided in Sec. 4 of the same Rule (Sec. 5, Rule 25).
436
BAR 2016: Q: Briefly explain the procedure on "Interrogatories to Parties" under Rule 25 and state
the effect of failure to serve written interrogatories. SUGGESTED ANSWER: The procedure on
“Interrogatories to Parties” under Rule 25 is briefly explained as follows: (1) A party desiring to elicit
material and relevant facts from an adverse party shall file and serve upon the latter written
interrogatories to be answered by the latter. (2) Interrogatories shall be answered fully in writing and
shall be signed and sworn to by the person making them. The interrogatories shall be answered within
15 days from service thereof. The answers may be used for the same purposes provided for in Section
4 of Rule 23 on depositions. (3) Objections to any interrogatories may be made within 10 days after
service thereof. The effect of the failure to serve written interrogatories is that unless allowed by
the court for good cause shown and to prevent a failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a
deposition pending appeal. (Jurist Review Center, Inc.)
a) Consequences of refusal to answer

1. If a party or other deponent refuses to answer any question upon oral
examination, the examination may be completed on other matters or adjourned as
the proponent of the question may prefer. The proponent may thereafter apply to
the proper court of the place where the deposition is being taken, for an **order
to compel an answer. The same procedure may be availed of when a party or a
witness refuses to answer any interrogatory submitted under Rules 23 or 25.
a. If the application is granted, the court shall require the refusing party
or deponent to answer the question or interrogatory and if it also finds that the
refusal to answer was without substantial justification, it may require the refusing
party or deponent or the counsel advising the refusal, or both of them, to pay the
proponent the amount of the reasonable expenses incurred in obtaining the
order, including attorney’s fees.
b. If the application is denied and the court finds that it was filed without
substantial justification, the court may require the proponent or the counsel
advising the filing of the application, or both of them, to pay to the refusing
party or deponent the amount of the reasonable expenses incurred in
opposing the application, including attorney’s fees (Sec. 1, Rule 29).
2. If a party or other witness refuses to be sworn or refuses to answer any
question after being directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a **contempt of that
court (Sec. 2, Rule 29).
3. If any party or an officer or managing agent of a party refuses to obey an
order made under Sec. 1 of this Rule requiring him to answer designated
questions, or an order under Rule 27 to produce any document or other thing
for inspection, copying, or photographing or to permit it to be done, or to permit
entry upon land or other property, or an order made under Rule 28 requiring
him to submit to a physical or mental examination, the court may make such
orders in regard to the refusal as are just, and among others the following:
a. An order that the matters regarding which the questions were asked, or
the character or description of the thing or land, or the contents of the paper, or
the physical or mental condition of the party, or any other designated facts shall be
**taken to be established for the purposes of the action in accordance with the
claim of the party obtaining the order;
b. An order **refusing to allow the disobedient party to support or
oppose designated claims or defenses or prohibiting him from introducing
in evidence designated documents or things or items of testimony, or from
introducing evidence of physical or mental condition;
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;
d. In lieu of any of the foregoing orders or in addition thereto, an order
directing the **arrest of any party or agent of a party for disobeying any of such
orders **except an order to submit to a physical or mental examination (Sec.

3, Rule 29).
b) Effect of failure to serve written interrogatories

1. GR: A party not served with written interrogatories ***may not be
compelled by the adverse party to give testimony in open court, or to give a
deposition pending appeal.
2. XPN: When allowed by the court and there is good cause shown and the
same is necessary to prevent a failure of justice (Sec. 6, Rule 25).
RULE 25: Interrogatories to Parties437

1. Who: any party, under the same conditions specified in section 1 of Rule 23
2. Purpose: he desires to elicit material and relevant facts from any adverse parties
3. How? [Sec 1]
a. he shall file and serve upon the latter written interrogatories to be
answered by the party served or,
b. if the party served is a public or private corporation or a partnership or association, by
any officer thereof competent to testify in its behalf.
4. Answer to interrogatories. [Sec 2]. The interrogatories
a. shall be answered fully in writing and
b. shall be signed and sworn to by the person making them.
• GR: The party upon whom the interrogatories have been served shall file and serve a copy of
the answers on the party submitting the interrogatories within fifteen (15) days after
service thereof
• XPN: unless the court on motion and for good cause shown, extends or
shortens the time.
5. Objections to interrogatories. [Sec 3].
a. Objections to any interrogatories may be presented to the court within
ten (10) days after service thereof,
b. with notice as in case of a motion; and
437
[] Bar 2008: A tugboat owned by Speedy Port Service, Inc. (SPS) sank in Manila Bay while helping
tow another vessel, drowning five (5) of the crew in the resulting shipwreck. At the maritime board
inquiry, the four (4) survivors testified. SPS engaged Atty. Ely to defend it against potential claims
and to sue the company owning the other vessel for damages to the tug. Ely obtained signed statements from
the survivors. He also interviewed other persons, in some instance making memoranda. The heirs of the five (5)
victims filed an action for damages against SPS. Plaintiffs' counsel sent written interrogatories to
Ely, asking whether statements of witnesses were obtained; if written, copies were to be furnished; if oral, the
exact provisions were to be set forth in detail. Ely refused to comply, arguing that the documents and
information asked are privileged communication. Is the contention tenable? Explain.
Yes, the contention of counsel for SPS is tenable considering that he was acting in his
professional capacity in bringing about the statement he obtained from witnesses and the
memoranda he made. *****The notes, memoranda, and writings made by counsel in pursuance
of his pursuance of his professional duty, form part of his private and confidential files in the
cases handled by him; hence privileged (Air Philippines Corp. v. Pennswell, Inc., 540 SCRA 215 [2007]).
c. answers shall be deferred until the objections are resolved, which

shall be at as early a time as is practicable.
6. Number of interrogatories. [Sec 4] No party may, without leave of court, serve
more than one set of interrogatories to be answered by the same party.
7. Scope and use of interrogatories. [Sec 5] Interrogatories
a. may relate to any matters that can be inquired into under section 2 of Rule
23, and
b. the answers may be used for the same purposes provided in section 4 of
the same Rule.
8. Effect of failure to serve written interrogatories. [Sec 6]
*GR: a party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court, or to give a
deposition pending appeal.
*XPN: Unless thereafter allowed by the court for good cause shown
and to prevent a failure of justice.
CASE SCENARIO ON INTERROGATORIES TO PARTIES

[] An heir/oppositor in a probate proceeding filed a motion to remove the
administrator on the grounds of neglect of duties as administrator and absence
from the country. On his part the heir/oppositor served written
interrogatories to the administrator preparatory to presenting the latter as a
witness. The administrator objected, insisting that the modes of discovery apply only to
ordinary civil actions, not special proceedings. Rule on the matter. (2008): The
administrator’s contention that the modes of discovery apply only to ordinary civil
action and not to special proceedings is not correct. Section 2, Rule 72 of the
Rules of Court provides that: “In the absence of special provisions, the rules
provided for in ordinary civil actions shall be, as far as practicable, applicable in
special proceedings.” There is no provision to the contrary that would preclude
the application of the modes of discovery, specifically Interrogatories to Parties
under Rule 25 of the Rules, to probate proceedings.
————————————————
3.12.3. Request for admission

1. Admissions to be requested from the adverse party***
a. Genuineness of any material and relevant document described in and
exhibited with the request; or
b. Truth of any material and relevant matter of fact set forth in the
request (Sec. 1, Rule 26).
2. The request for admission must be **served directly upon the party;
otherwise, the party to whom the request is directed cannot be deemed to have
admitted the genuineness of any relevant document described in and exhibited
with the request or relevant matters of fact set forth therein on account of failure
to answer the request for admission (Briboneria v. CA, G.R. No. 101682,
December 14, 1992).

3. The answer to a request for admission properly served which was signed and
sworn to by the counsel of the party so requested is sufficient compliance with
this rule, especially in the light of counsel’s authority under Secs. 21 and 23, Rule
138 (Nestle Philippines, Inc. v. CA, G.R. No. 102404, February 1, 2002).
4. When request for admission is made: ***At any time after issues have been
joined, a party may file and serve upon any other party a written request for the
admission by the latter (Sec. 1, Rule 26).
a) Implied admission by adverse party

1. GR: Each of the matters of which an admission is requested shall be
****deemed admitted.
2. XPN: When the party to whom the request is directed files and serves upon
the party requesting the admission a sworn statement either denying specifically
the matters of which an admission is requested or setting forth in detail the
reasons why he cannot truthfully either admit or deny those matters (Sec. 2,
Rule 26).
b) Consequences of failure to answer request for admission

The facts or documents are deemed admitted. Under the Rules, each of the
matters of which an admission is requested shall be deemed admitted unless
within a period designated in the request which shall not be less than 15 days after
service thereof, or within such further time as the court may allow on motion, the
party to whom the request is directed files and serves upon the party requesting
the admission a sworn statement either denying specifically the matter of which an
admission is requested or setting forth in detail the reason why he cannot
truthfully either admit or deny those matters (Sec. 2, Rule 26).
c) Effect of admission
1. Any admission made by a party pursuant to such request is for the purpose of
the ***pending action only and shall not constitute an admission by him for
any other purpose nor may the same be used against him in any other
2. Submission to objections to any request for admission: They shall be
submitted to the court by the party requested within the period for and prior to
the filing of his sworn statement and his compliance therewith shall be deferred
until such objections are resolved, which resolution shall be made as early as
practicable (Sec. 2(b), Rule 26).
3. Withdrawal of Admission: The court may allow the party making the admission
to withdraw or amend the admission upon such terms as may be just (Sec. 4,
Rule 26).
d) Effect of failure to file and serve request for admission

A party who fails to file and serve a request for admission on the adverse party
on material and relevant facts at issue shall ***not be permitted to present
evidence on such facts unless otherwise allowed by the court for good cause shown and
to prevent a failure of justice (Sec. 5, Rule 26).
RULE 26: Admission by Adverse Party438

1. When: At any time after issues have been joined,
2. Who and how: a party may file and serve upon any other party
3. What: a written request for the admission by the latter
4. About what:
a. of the genuineness of any material and relevant document described in
and exhibited with the request or
b. of the truth of any material and relevant matter of fact set forth in the
request.
*Copies of the documents shall be delivered with the request unless copy
have already been furnished.
5. Implied admission. [Sec 2]
*GR: Each of the matters of which an admission is requested shall be
deemed admitted
*XPN: unless, within a period designated in the request, which shall not
be less than fifteen (15) days after service thereof, or within such further time
as the court may allow on motion, the party to whom the request is directed files
and serves upon the party requesting the admission a sworn statement either
a. denying specifically the matters of which an admission is requested or
b. setting forth in detail the reasons why he cannot truthfully either admit or
deny those matters.
*When shall objections to any request for admission be submitted to the
court by the party requesting? Within the period for and prior to the filing of his
438
BAR 2016: Q: Briefly explain the procedure on "Admission by Adverse Party" under Rule 26 and
the effect of failure to file and serve the request. SUGESTED ANSWER: The procedure on
“Admission by Adverse Party” under Rule 26 is briefly explained as follows: (1) At any time after
issues have been joined, a party may file and serve upon any other party a written request for the
admission by the latter of the genuineness of any material and relevant document or the truth of any
material and relevant matter of fact. (2) Each of the matters of which an admission is requested shall
be deemed admitted unless, within the period designated in the request, which shall not be less than 15
days after service thereof, the party to whom the request is directed files and serves upon the
requesting party a sworn statement either denying specifically the matters of which an admission is
requested or setting forth in detail why he cannot truthfully either admit or deny those matter. (3)
Objections to any request for admission shall be submitted to the court within the period for and prior
to the filing of his sworn statement. The effect of the failure to file and serve request for
admission is that, unless allowed by the court for good cause shown and to prevent a failure of justice,
a party who fails to file and serve a request for admission on the adverse party of material and relevant
facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be
allowed to present evidence on such facts. (Jurist Review Center, Inc.)
sworn statement as contemplated in the preceding paragraph and his

compliance therewith shall be deferred until such objections are resolved,
which resolution shall be made as early as practicable. (2a)
6. Effect of admission. [Sec 3]. Any admission made by a party pursuant to such request is
a. for the purpose of the pending action only and
b. shall not constitute an admission by him for any other purpose nor
may the same be used against him in any other proceeding.**
*NB, Sec 4: The court may allow the party making an admission under the Rule,
whether express or implied, to withdraw or amend it upon such terms as may be just.
7. Effect of failure to file and serve request for admission. [Sec 5]
*GR: a party who fails to file and serve a request for admission on the
adverse party of material and relevant facts at issue which are, or ought to be,
within the personal knowledge of the latter, shall not be permitted to present
evidence on such facts.
*XPN: Unless otherwise allowed by the court for good cause shown and
to prevent a failure of justice.
————————————————
3.12.4. Production or inspection of documents or things [Rule 27 with one

section only]
1. How? Upon motion
2. By whom? any party
3. Ground: showing good cause therefor,
4. Court action: the court in which an action is pending may
(a) order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated documents,
papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in the action and
which are in his possession, custody or control, or
(b) order any party to permit entry upon designated land or other property in
his possession or control for the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant object or operation thereon.
5. Contents of the order: The order
a. shall specify the time, place and manner of making the inspection and taking
copies and photographs, and
b. may prescribe such terms and conditions as are just.
6. Limitations on the request for production or inspection of documents or
things
a. ****Should not be privileged;439
439
[] Q: Corporation (BTC) for the latter’s failure to pay for its purchases of industrial chemicals. In its
answer, BTC contended that it refused to pay because CCC misrepresented that the products it sold
belonged to a new line, when in fact they were identical with CCC’s existing products. To substantiate
b. Should constitute or contain evidence material to any matter involved in

the action and which are in his (the party ordered) possession, custody, or control
(Sec. 1, Rule 27);
c. In the petition, the papers and documents to be produced must be
sufficiently described.
6. Production or inspection of documents or things under Rule 27 v. Subpoena
duces tecum
Production or Inspection of Documents or Things Subpoena Duces Tecum
Essentially a mode of discovery. Means of compelling production of evidence.

Limited to the parties to the action. It may be directed to any person whether a party or
not.
Issued only upon motion with notice to Issued upon an ex parte application.
the adverse party.
***This mode of discovery does not authorize the opposing party or the clerk of
court or other functionaries of the court to distrain the articles or deprive the
person who produced the same of their possession, EVEN
TEMPORARILY (Tanda v. Aldaya, G.R. No. L-13423, November 23, 1959).
————————————————
3.12.5. Physical and mental examination of persons [Rule 28]

1. Applicability: In an action in which the mental or physical condition of a
party is IN CONTROVERSY,
2. Court action: the court in which the action is pending may in its discretion order him
to submit to a physical or mental examination by a physician.
3. Procedure to avail physical and mental examination of persons
a. A motion must be filed showing good cause for the examination, with
notice to the other parties as well aside from the party to be examined (Sec. 2,
its defense, BTC filed a motion to compel CCC to give a detailed list of the products’ ingredients
and chemical components, relying on the right to avail of the modes of discovery allowed under
Rule 27. CCC objected, invoking confidentiality of the information sought by BTC. Resolve BTC’s
motion with reasons.
A: BTC’s motion should be denied.A motion for production or inspection of documents or
things under Rule 27 is subject to the requirement that the documents or things should not be
privileged. Here, what are sought to be produced is a detailed list of an industrial product’s ingredients
and chemical components which are trade secrets and thus privileged. Hence BTC’s motion should
be dismissed. (Air Philippines Corp. v. Pennswell, Inc., G.R. No. 172835, 13 December 2007). Bar
2009: *******Trade secrets may not be the subject of compulsory disclosure by reason of their
confidential and privileged character. Otherwise, the company would eventually be exposed to
unwarranted business competition with others who may imitate and market the same kinds of
products in violation of CCC’s proprietary rights. Being privileged, the detailed list of ingredients
and chemical components may not be the subject of mode of discovery under **Rule 27, Section
1 which expressly makes privileged information an exception from its coverage (Air Philippines
Corporation v. Pennswell, Inc., 540 SCRA 215 [2007]).
Rule 28);
b. The motion shall specify the time, place, manner, conditions and scope
of the examination and by the person/s by whom it is made (Sec. 2, Rule 28);
4. Report of findings. [Sec 3]
a. If requested by the party examined, the party causing the examination to be made
shall deliver to him a copy of a detailed written report of the examining
physician setting out his findings and conclusions.
b. After such request and delivery, the party causing the examination to be made
shall be entitled upon request to receive from the party examined a like report
of any examination, previously or thereafter made, of the same mental or physical
condition.
5. Effects of some failure to act:
a. If the party examined refuses to deliver such report, the court on motion and
notice may make an order requiring delivery on such terms as are just, and
b. if a physician fails or refuses to make such a report the court may exclude his
testimony if offered at the trial.
6. Effect of requesting and obtaining a report of the examination so ordered or by
taking the deposition of the examiner:
a. the party examined waives any privilege he may have in that action or
any other involving the same controversy, regarding the testimony of every other person who
has examined or may thereafter examine him in respect of the same mental or
physical examination. This is called WAIVER OF PRIVILEGE.
b. He has to furnish the other party a copy of the report of any previous
or subsequent examination of the same physical and mental condition (Sec. 3,
Rule 28);
————————————————
3.12.6. Consequences of refusal to comply with modes of discovery [Rule

29]******
Refusal to answer any question upon oral examination
1. Order to compel an answer;

2. Contempt;
3. Require payment of reasonable fees incurred by the proponent;
4. Designated facts shall be taken to be established for the purposes of the action in accordance
with the claim of the party obtaining the order.
5. Dismiss the action or the proceeding;
6. ***Render a Judgment by default against the disobedient party;
7. Refuse to allow the disobedient party to support or oppose claims or defenses;
8. **Strike out all or any part of the pleading of the disobedient party;
9. Stay further proceedings until order is obeyed; or
10. Order the arrest of the refusing party.
Refusal to produce document or thing for inspection, copying or photographing
1. Designated facts shall be ***taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
2. Refuse to allow the disobedient party to support or oppose claims or defenses;
3. Strike out all or any part of the pleading of the disobedient party;
6. Stay further proceedings until order is obeyed; or
7. Order the arrest of the refusing party.
Refusal to submit to Physical or Mental examination
1. Designated facts shall be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
2. Prohibit the disobedient party to introduce evidence of physical and mental conditions;
3. Strike out all or any part of the pleading of the disobedient party;
6. Stay further proceedings until order is obeyed;
Refusal to the request for admission by adverse party
1. Require payment of reasonable fees incurred by the proponent (Secs. 1-4).

2. Each of the matters of which an admission is requested is ****deemed admitted (Sec. 5, Rule 26).
*NB: The remedy of the party, in this case, is to file a motion to be relieved of the consequences of the
implied admission. The amendment of the complaint per se ***cannot set aside the legal effects of the
request for admission since its materiality has not been affected by the amendment.
1. Refusal to answer. [Sec 1] If a party or other deponent refuses to answer any

question upon oral examination:
a. the examination may be
i. completed on other matters or
ii adjourned as the proponent of the question may prefer.
b. The proponent may thereafter apply to the proper court of the place where
the deposition is being taken, for an order to compel an answer.
*NB: The same procedure may be availed of when a party or a witness
refuses to answer any interrogatory submitted under Rules 23 or 25.
i. If the application is granted, the court shall require the refusing
party or deponent to answer the question or interrogatory and if it also finds that
the refusal to answer was without substantial justification, it may require the
refusing party or deponent or the counsel advising the refusal, or both of them, to
pay the proponent the amount of the reasonable expenses incurred in
obtaining the order, including attorney's fees.
ii. If the application is denied and the court finds that it was filed
without substantial justification, the court may require the proponent or the counsel
advising the filing of the application, or both of them, to pay to the refusing party
or deponent the amount of the reasonable expenses incurred in opposing the
application, including attorney's fees. (1a)
2. Contempt of court. [Sec 2] If a party or other witness refuses to be sworn or
refuses to answer any question after being directed to do so by the court of the
place in which the deposition is being taken, the refusal may be considered a
contempt of that court.
3. Other consequences. [Sec 3] If any party or an officer or managing agent of a party
refuses to obey an order made under section 1 of this Rule requiring him to answer
designated questions, or an order under Rule 27 to produce any document or other
thing for inspection, copying, or photographing or to permit it to be done, or to
permit entry upon land or other property or an order made under Rule 28
requiring him to submit to a physical or mental examination, the court may make
such orders in regard to the refusal as are just, and among others the following:
(a) An order that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the paper, or the physical or
mental condition of the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the claim of the party
obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in evidence designated
documents or things or items of testimony, or from introducing evidence of physical or
mental condition;
(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; **
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the
arrest of any party or agent of a party for disobeying any of such orders except
an order to submit to a physical or mental examination.**
4. Expenses on refusal to admit. [Sec 4] If a party after being served with a request under Rule
26 to admit the genuineness of any document or the truth of any matter of fact
serves a sworn denial thereof and if the party requesting the admissions
thereafter proves the genuineness of such document or the truth of any such
matter of fact, he may apply to the court for an order requiring the other party
to pay him the reasonable expenses incurred in making such proof, including
attorney's fees. Unless the court finds that there were good reasons for the denial
or that admissions sought were of no substantial importance, such order shall
be issued. (4a)
5. Failure of party to attend or serve answers. [Sec 5]
a. Applicability: If a party or an officer or managing agent of a party
i. wilfully fails to appear before the officer who is to take his deposition, after
being served with a proper notice, or
ii. fails to serve answers to interrogatories submitted under Rule
25 after proper service of such interrogatories,
b. How? on motion and notice,
c. Court action: the court may
i. strike out all or any part of any pleading of that party, or
ii. dismiss the action or proceeding or any part thereof, or
iii. enter a judgment by default against that party, and

iv. in its discretion, order him to pay reasonable expenses
incurred by the other, including attorney's fees.
*NB: Expenses and attorney's fees are not to be imposed upon the
Republic of the Philippines under this Rule [Sec 6]
———————————————————————————————
3.13. Trial [Rule 30]
3.13.1. Adjournments and postponements [Sec 2] 318

3.13.2. Requisites of motion to postpone trial 319
a) For absence of evidence [Sec 3] 319
b) For illness of party or counsel [Sec 4] 319
3.13.3. Agreed statement of facts [Sec 6] 320
3.13.4. Order of trial [Sec 5]; reversal of order 320
3.13.5. Consolidation or severance of hearing or trial [Rule 31] 320
3.13.6. Delegation of reception of evidence [Sec 9] 321
3.13.7. Trial by commissioners [Rule 32] 322
a) Reference by consent or ordered on motion 323
b) Powers of the commissioner [Sec 3] 323
c) Commissioner’s report; notice to parties and hearing on the report [Sec 9] 324
———————————————————————————————
MATTERS RELATED TO TRIAL

1. What is trial? It is a judicial process of investigating and determining the legal
controversies starting with the production of evidence by the plaintiff and ending
with his closing arguments. Should there be no amicable settlement or a
compromise forged between the parties, the case will be set for trial (Riano, 2011).
2. Necessity of Trial (1996 Bar Question)
*GR: Trial is necessary when an issue exists. Decisions should not be
made without trial.
****XPN: There is no need for trial in the following cases:
a. Where the pleadings of the parties tender no issue at all, a judgment on
the pleadings may be directed by the court (Rule 34);
b. Where from the pleadings, affidavits, depositions and other papers,
there is actually no genuine issue, the court may render a summary judgment (Rule
35);
c. Where the parties have entered into a compromise or an amicable
settlement either during the pre-trial or while the trial is in progress (Rule 18; Art.
2028, NCC);
d. Where the complaint has been dismissed with prejudice (Sec. 5, Rule
16; Sec. 3, Rule 17; Sec. 5, Rule 7);
e. Where the parties agree in writing, upon the facts involved in the
litigation, and submit the case for judgment on the facts agreed upon, without
the introduction of evidence. If however, there is no agreement as to all the facts in the
case, trial may be held only as to the disputed facts (Sec. 6, Rule 30);
f. **Where the civil case falls under the operation of the Rules on
Summary Procedure (Rule 17);
g. When the case falls under the Rule on Small Claims.
3. Trial v. Hearing
Trial Hearing
Reception of evidence and Not confined to trial and presentation of evidence but embraces several
other processes. stages of litigation, including pre-trial and determination of granting or
denying a motion (Trocio v. Labayo, G.R. No. L-23363, May 31, 1967).
The period for the introduction Does not necessarily imply presentation of evidence in open
of evidence by both parties. court but the parties are afforded the opportunity to be heard.
4. Rule on Notice of trial

[Sec 1] Upon entry of a case in the trial calendar, the clerk shall
notify the parties of the date of its trial in such manner as shall ensure his receipt
of that notice at least five (5) days before such date.
Statement of judge. [Sec 7] During the hearing or trial of a case any statement
made by the judge with reference to the case, or to any of the parties, witnesses
or counsel, shall be made of record in the stenographic notes.
5. Cases where the clerk of court gives preference in scheduling of cases—In
calendaring cases, the clerk of court shall give preference to:**
a. Habeas corpus cases;
b. Election cases;
c. Special civil actions; and
d. Those so required by law to be preferred (Sec. 1, Rule 20).
———————————
3.13.1. Adjournments and postponements [Sec 2]

1. A court may adjourn a trial from day to day, and to any stated time, as the
expeditious and convenient transaction of business may require but
*GR: it shall have no power to adjourn a trial for a longer period than
one month for each adjournment nor more than three months in all,
*XPN: except when authorized in writing by the Court Administrator,
Supreme Court.
3.13.2. Requisites of motion to postpone trial
a) For absence of evidence [Sec 3]

1. A motion for postponement must be filed;
2. The motion must be supported by an affidavit or sworn certification showing:
a. The evidence is material or relevant; and
b. That due diligence has been used to procure it (Sec. 3, Rule 30).
**NB: But if the adverse party admits the facts to be given in evidence, even
if he objects or reserves the right to object to their admissibility, the trial shall not be
postponed. (Bar Matter No. 803, 21 July 1998)
b) For illness of party or counsel [Sec 4]

1. A motion for postponement must be filed;
2. The motion must be supported by an affidavit or sworn certification showing:
a. The presence of the party or counsel at the trial is indispensable; and
b. That the character of his illness is such as to render his non-attendance
excusable (Sec. 4, Rule 30).
3.13.3. Agreed statement of facts [Sec 6]

1. Effect when there is an agreed statement of facts
a. The parties to any action may agree, in writing, upon the facts involved
in the litigation, and submit the case for judgment on the facts agreed upon,
without the introduction of evidence.
b. If the parties agree only on some of the facts in issue, the trial shall be
held as to the disputed facts in such order as the court shall prescribe.
2. Stipulations of facts in civil cases v. Stipulation of facts in criminal cases
May be signed by the counsel alone who has a Must be signed both by the counsel and the
special power of attorney. accused.
May be made verbally or in writing. It must always be in writing.
3.13.4. Order of trial [Sec 5]; reversal of order

1. GR: the trial shall be limited to the issues stated in the pre-trial order and
shall proceed as follows:
(a) The plaintiff shall adduce evidence in support of his complaint;
(b) The defendant shall then adduce evidence in support of his defense, counterclaim,
cross-claim and third-party complaints;
(c) The third-party defendant if any, shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party complaint;
(d) The fourth-party, and so forth, if any, shall adduce evidence of the material
facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of their defense, in the order to be
prescribed by the court;
(f) The parties may then respectively adduce rebutting evidence only,
unless the court, for good reasons and in the furtherance of justice, permits them to
adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed
submitted for decision, unless
i. the court directs the parties to argue or
ii. to submit their respective memoranda or any further pleadings.

[] NB: If several defendants or third-party defendants, and so forth,
having separate defenses appear by different counsel, the court shall determine the
relative order of presentation of their evidence.
2. *****XPN: Subject to the provisions of section 2 of Rule 31, and unless the
court for SPECIAL REASONS otherwise directs. This refers to reverse trials:
A reverse trial is one where the defendant or the accused present evidence
ahead of the plaintiff or prosecution and the latter is to present evidence by
way of rebuttal to the former’s evidence.
a. In civil cases: when the defendant’s Answer pleads new matters by
way of affirmative defense, to defeat or evade liability for plaintiffs claim
which is not denied but controverted.440
b. In criminal case: when the accused made known to the trial court, on
arraignment, that he is to adduce affirmative defense of a justifying or
exempting circumstance and thus impliedly admitting the act imputed to him.
The trial court may then require the accused to present evidence first, proving
the requisites of the justifying or exempting circumstance he is invoking, and the
prosecution to present rebuttal evidence controverting the same.
3.13.5. Consolidation or severance of hearing or trial [Rule 31]

1. Consolidation vs. Severance
Consolidation Severance
Involves several actions having a Contemplates a single action having a number of claims,
common question of law or fact which counterclaims, cross-claims, third-party complaints, or
may be jointly tried (Sec. 1, Rule 31). issues which may be separately tried (Sec. 2, Rule 31).
2. Requisites for Consolidation:

a. Actions involving a common question of law or fact; and
b. There must be at least 2 actions pending before the same court (Sec.
1, Rule 31).
3. Ways of consolidating cases:
Recasting the Cases Consolidation Proper Test-Case Method
Reshaping of the cases by It is a joint trial By hearing only the principal case
amending the pleading, dismissing with joint decision, and suspending the hearing on the other cases
some cases and retaining only one the cases retaining until judgment has been rendered in
case. There must be joinder of causes their original docket the principal case. The cases retain their
of action and of parties. numbers. original docket numbers.
4. Rule on consolidation of cases
440
Hence, reversal of trial is possible in civil cases; Where the defendant, in his answer, relies upon an
affirmative defense, a reverse order of trial shall take place. Since the defendant admits the
plaintiff’s claim but seeks to avoid liability based on his affirmative defense he shall proceed first to
prove his exemption (Yu v. Mapayo, G.R. No. L-29742, March 29, 1972).
*GR: Consolidation is discretionary upon the court to avoid multiplicity

of suits, guard against oppression or abuse, prevent delay, clear congested dockets, and
simplify the work of the trial court and save unnecessary costs and expenses.
****XPN: Consolidation becomes a matter of duty when:
a. Two or more cases are pending before the same judge; or
b. If cases are filed with the different branches of the same RTC and one
of such case has not been partially tried (Raymundo v. Felipe, G.R. No. L-30887,
December 24, 1971).
5. Court action on Consolidation of cases:
a. it may order a joint hearing or trial of any or all the matters in issue in
the actions;
b. it may order all the actions consolidated, and
c. it may make such orders concerning proceedings therein as may tend to
avoid unnecessary costs or delay.
6. Suspension of civil actions
a. If willingness to discuss a possible compromise is expressed by one or
both parties; or
b. If it appears that one of the parties, before the commencement of the
action or proceeding, offered to discuss a possible compromise but the other
party refused the offer (Sec. 8, Rule 30; Art. 2030, NCC).
[] Bar 2000: Doris filed a complaint for ejectment in the MTC on the
ground of non-payment of rentals against Minda. After 2 days, Minda filed in
the RTC a complaint against Doris for specific performance to enforce the
option to purchase the parcel of land subject of the ejectment case. What is the
effect of Minda's action on Doris' complaint? Explain. A: There is no effect.
The **ejectment case involves possession de facto only. The action to enforce
the option to purchase will not suspend the action of ejectment for non-
payment of rentals (Wilmon Auto Supply Corp. v. CA, G.R. No. 97637, April
10, 1992).
7. More on Separate trials. [Sec 2]
a. Rationale: in furtherance of convenience or to avoid prejudice,
b. Court action: The court may order a separate trial of any claim, cross-
claim, counterclaim, or third-party complaint, or of any separate issue or of any
number of claims, cross-claims, counterclaims, third-party complaints or issues.
———————————-
3.13.6. Delegation of reception of evidence [Sec 9]

1. GR: The judge shall personally receive and resolve the evidence to be
adduced by the parties.
2. XPN: The reception of evidence may be delegated to the Clerk of Court, who
is a member of the bar, under the following conditions:
a. In default hearings;
b. Ex parte hearings; or
c. **In any case where the parties agree in writing (Sec. 9, Rule 30).
**Said clerk shall have no power to rule on objections to any question or
to admission of evidence or exhibits; and he shall submit his report and
transcripts of the proceedings, together with the objections to be resolved by
the court, within 10 days from the termination of the hearing (Ibid.).
———————————-
3.13.7. Trial by commissioners [Rule 32]

1. Commissioner: A person to whom a case pending in court is referred, for
him to
a. take testimony,
b. hear the parties and
c. report thereon to the court, and
d. upon whose report, if confirmed, judgment is rendered.
*As used in these Rules, the word "commissioner" includes a referee, an
auditor and an examiner [Sec 1]
2. Delegation to clerk of court under Rule 30 vs. Trial by commissioner under
Rule 32
Delegation to Clerk of Court Trial by Commissioner
Delegation is made during trial. Commissioner can be appointed even after the case
has become final and executory.
Clerk of court must be a lawyer. Commissioner need not be a lawyer.
Clerk of court cannot rule on objections Commissioner can rule on objections or on
or on the admissibility of evidence. admissibility of evidence.
3. Cases where there is ****mandatory trial by Commissioner
a. Expropriation (Rule 67);
b. Partition (Rule 69);
c. Settlement of estate of a deceased person in case of contested claims; and
d. Submission of accounting by executors or administrator.
**all except (a) are related to estate proceedings.
a) Reference by consent or ordered on motion

1. Referral of a case to a Commissioner: Reference by consent. [Sec 1]:
a. How? By written consent of both parties,
b. Court action: the court may order any or all of the issues in a case to be
referred to a commissioner
i. to be agreed upon by the parties or
ii. to be appointed by the court.
2. Cases where there is a valid referral to a Commissioner even without the
consent of the parties. Reference ordered on motion. [Sec 2]. Applicability: When the
parties do not consent. The court may, upon the application of either or of its own
motion, direct a reference to a commissioner in the following cases:
(a) When the trial of an issue of fact requires the examination of a long
account on either side (in which case the commissioner may be directed to
hear and report upon the whole issue or any specific question involved therein);
(b) When the taking of an account is necessary for the information of the
court before judgment, or for carrying a judgment or order into effect.
(c) When a question of fact, other than upon the pleadings, arises upon motion
or otherwise, in any stage of a case, or for carrying a judgment or order into effect.
————————————
b) Powers of the commissioner [Sec 3]

1. When a reference is made, the clerk shall forthwith furnish the
commissioner with a copy of the order of reference.
2. Contents of the order: it
a. may specify or limit the powers of the commissioner, and
b. may direct him to report only upon particular issues, or
c. to do or perform particular acts, or
d. to receive and report evidence only and
e. may fix the date f
i. or beginning and closing the hearings and
ii. for the filing of his report.
3. Powers of the Commissioner: Subject to other specifications and limitations stated in
the order, the commissioner has and shall exercise
a. the power to regulate the proceedings in every hearing before him and
b. to do all acts and take all measures necessary or proper for the efficient
performance of his duties under the order.
c. **He may issue subpoenas and subpoenas duces tecum,
d. swear witnesses, and
e. unless otherwise provided in the order of reference, he may rule upon the
admissibility of evidence.**
4. Conduct of hearings: The trial or hearing before him shall proceed in all
respects as it would if held before the court.
5. Effect of **failure of parties to appear before a commissioner: The
commissioner may proceed ex parte or, in his discretion, adjourn the proceedings
to a future day, giving notice to the absent party or his counsel of the adjournment (Sec. 6,
Rule 32).
———————————-
c) Commissioner’s report; notice to parties and hearing on the report [Sec 9]

1. Commissioner’s Report; When due: Upon the completion of the trial or
hearing or proceeding before the commissioner,
2. What: he shall file with the court his report in writing upon the matters
submitted to him by the order of reference.
3. Content of the report:
a. When his powers are not specified or limited, he shall set forth his
findings of fact and conclusions of law in his report.
b. He shall attach thereto all exhibits, affidavits, depositions, papers and the
transcript, if any, of the testimonial evidence presented before him.
****The commissioner’s report is not binding upon the court which is
free to adopt, modify, or reject, in whole or in part, the report. The court may
receive further evidence or recommit the report with instructions (Sec. 11, Rule
32; Baltazar v. Limpin, 49 Phil. 39).
4. Notice to parties of the filing of report. [Sec 10]
a. Upon the filing of the report, the parties shall be notified by the clerk,
and
b. they shall be allowed ten (10) days within which to signify grounds of
objections to the findings of the report, if they so desire.
*NB: Objections to the report based upon grounds which were
**available to the parties during the proceedings before the commissioner,
other than objections to the findings and conclusions therein, set forth, shall not be
considered by the court unless they were made before the commissioner.
*GR: Notice of the filing of the report must be sent to the parties for the
purpose of giving them an opportunity to present their objections (Santos v.
Guzman, 45 Phil. 646). The failure to grant the parties, in due form, this
opportunity to object, may, in some instances, constitute a serious error in
violation of their substantial rights (Gov’t. v. Osorio, 50 Phil. 864).
*XPN: The rule, however, is not absolute. In Manila Trading and Supply
Co. v. Phil. Labor Union, 71 Phil. 539, it was ruled that although the parties
were not notified of the filing of the commissioner’s reports, and the court
failed to set said report for hearing, if the parties who appeared before the commissioner
were duly represented by counsel and given an opportunity to be heard, the
requirement of due process has been satisfied, and a decision on the basis of
such report, with the other evidence of the case is a decision which meets the
requirements of fair and open hearing.
5. Hearing upon report. [Sec 11] Upon the expiration of the period of ten (10) days,
the report shall be set for hearing, after which the court shall issue an order a.
adopting,
b. modifying, or
c. rejecting the report in whole or in part, or
d. recommitting it with instructions, or requiring the parties to present
further evidence before the commissioner or the court.
*In the hearing to be conducted on the commissioner’s report, the court
will review only so much as may be drawn in question by proper objections.
It is **not expected to rehear the case upon the entire record (Kreidt v.
McCullough and Co., 37 Phil. 474).
5. Stipulations as to findings. [Sec 12] When the parties stipulate that a
commissioner's findings of fact shall be final, only questions of law shall
thereafter be considered.
OTHER MATTERS ON TRIAL BY COMMISSIONERS

1. Oath of commissioner. [Sec 4] Before entering upon his duties the commissioner
shall be sworn to a faithful and honest performance thereof.
2. Proceedings before commissioner. [Sec 5] Upon receipt of the order of reference and unless
otherwise provided therein, the commissioner shall forthwith set a time and
place for the first meeting of the parties or their counsel to be held within ten
(10) days after the date of the order of reference and shall notify the parties or
their counsel. (5a, R33)
3. Effect of failure of parties to appear before commissioner. [Sec 6] If a party fails to
appear at the time and place appointed:
a. the commissioner may proceed ex parte or,
b. in his discretion, adjourn the proceedings to a future day, giving notice
to the absent party or his counsel of the adjournment. (6a, R33)
4. Refusal of witness. [Sec 7] The refusal of a witness to obey a subpoena issued by
the commissioner or to give evidence before him, shall be deemed a
contempt of the court which appointed the commissioner.
5. Commissioner shall avoid delays. [Sec 8] It is the duty of the commissioner to
proceed with all reasonable diligence. Either party, on notice to the parties and
commissioner, may apply to the court for an order requiring the
commissioner to expedite the proceedings and to make his report.
6. Compensation of commissioner. [Sec 13] The court shall allow the commissioner
such REASONABLE COMPENSATION as the circumstances of the case warrant,
to be taxed as costs against the defeated party, or apportioned, as justice
requires.
———————————————————————————————
3.14. Demurrer to evidence [Rule 33]

Preliminaries on Demurrer to Evidence (DTE) 327
DTE in Civil vs. Criminal Cases 327
DTE in Civil Cases 328
DTE in Criminal Cases 331
———————————————————————————————
Preliminaries on Demurrer to Evidence (DTE)

1. First, you have to identify if it’s a civil or criminal case
a. CIVIL: DTE is a dismissal based on insufficiency of evidence: After
the plaintiff has completed the presentation of his evidence, the defendant may
move for dismissal on the ground that upon the facts and the law the plaintiff
has shown no right to relief. If his motion is denied, he shall have the right to
present evidence. If the motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to present evidence (Sec. 1,
Rule 33).
b. CRIMINAL: DTE is an objection by one of the parties in an action to
the effect that the evidence which his adversary produced is insufficient in point
of law, whether true or not, to make out a case or sustain the issue (Nicolas v.
Sandiganbayan, G.R. Nos. 175930-31, February 11, 2008).
2. Purpose: to discourage prolonged litigation. Note that the DTE rules do not
apply to an election case.441
3. It is akin to a MOTION TO DISMISS (“the defendant may move for
dismissal”). cf. notes on MTD vs. DTE. A demurrer to evidence is actually a
motion to dismiss that is filed by the accused after the prosecution has rested
its case (1994 Bar Question).
Demurrer to Evidence Motion to Dismiss
Assumes that the prosecution has already It is based on the denial of the accused’s right to
rested its case filed by the accused with or speedy trial characterized by unreasonable, vexatious and
without leave of court and submits the case oppressive delay without fault of the accused, or by unjustified
for judgment on the evidence of the statements that unreasonably prolonged the trial.
prosecution.
It may be filed in good faith with or It is filed without leave of court and before the
without leave of court. prosecution has rested its case.
441
******A party who files a demurrer to evidence that is subsequently denied in an election case
cannot insist on the right to present evidence. The provision of the Rules governing demurrer to
evidence does not apply to an election case (Gementiza v. COMELEC G.R. No. 140884, March 6,
2001). The Rules, under the express dictum in Sec. 4 of Rule 1 “shall not apply to election cases, land
registration, cadastral, naturalization and insolvency proceeding” (Riano, 2014).
DTE in Civil vs. Criminal Cases

*******
DTE IN CIVIL CASES DTE IN CRIMINAL CASES
Who can avail? Defendant only Accused and the Court itself, but must give the
prosecution an opportunity to be heard.
Ground: upon the facts and the law the plaintiff Insufficiency of evidence
has shown no right to relief, i.e., there is no cause
of action, not necessarily insufficiency of evidence
As to Leave of Court (LOC): not required accused may file it with or without LOC
Effect of grant: case is dismissed, without The case is dismissed and the prosecution cannot
prejudice to an appeal by the Plaintiff. Now if appeal because it is tantamount to an acquittal.
the appeal is granted, there is a deemed waiver to Double jeopardy sets in.
present evidence on the part of the Defendant;
*****No res judicata in dismissal due to demurrer
Effect of denial: Defendant may present *If with LOC: Defendant may present evidence;
evidence—there is no waiver. *If without LOC: Defendant is deemed to waive
his right to present evidence; case will be decided
based on the prosecution’s evidence.
Availability of certiorari: Yes, there is no *****GR: NO. XPN in Arroyo vs. PP where
prohibition Certiorari is available if the purpose is to right
(correct) a substantial wrong (power of SC to
suspend the rules).
When filed: after plaintiff rests his case (plaintiff After the prosecution rests its case
has completed the presentation of his evidence)
[] Bar areas:
1. Effect of grant of DTE in Civil cases can be confusing because (although leave
of court is not necessary) if it is reversed on appeal, the defendant can no longer
present evidence.442
2. Effect of denial of the DTE in civil and criminal cases.443
442
Bar 2001: Carlos filed a complaint against Pedro in the RTC of Ozamis City for the recovery of the
ownership of a car. Pedro filed his answer within the reglementary period. After the pre-trial and actual
trial, and after Carlos has completed the presentation of his evidence, Pedro moved for the dismissal of
the complaint on the ground that under the facts proven and the law applicable to the case, Carlos is
not entitled to the ownership of the car. The RTC granted the motion for dismissal. Carlos
appealed the order of dismissal and the appellate court reversed the order of the trial court.
Thereafter, Pedro filed a motion with the RTC asking the latter to allow him to present his evidence.
Carlos objected to the presentation of evidence by Pedro. Should the RTC grant Pedro’s motion to
present his evidence? Why? (5%) No. Pedro’s motion should be denied. He can no longer present
evidence. The **Rules provide that if the motion for dismissal is granted by the trial court but on
appeal the order of dismissal is reversed, he shall be deemed to have waived the right to present
evidence. (Sec. 1 of Rule 33, Rules of Civil Procedure)
443
[] **Bar 2003: EFFECT OF DENIAL OF DTE
3. Importance of leave of court

a. CIVIL: it is not necessary—the defendant can always present evidence
once the DTE is denied.
b. CRIMINAL: it can have fatal consequences—if the accused does not ask
for leave of court, and the DTE is denied, he can no longer present evidence.444
Consequence: *****without any evidence from the accused, the prima facie
evidence of the prosecution can be converted to proof beyond reasonable
a. Civil case: Defendant may present evidence—he has the right to present evidence. In a civil case,
the defendant has the right to file a demurrer to evidence without leave of court. *****If his demurrer
is denied, he has the right to present evidence. If his demurrer is granted and on appeal by the
plaintiff, the appellate court reverses the order and renders judgment for the plaintiff, the
defendant loses his right to present evidence. [******Upon appeal, the appellate court reversing
the order granting the demurrer should not remand the case to the trial court. Instead, it should
render judgment based on the evidence submitted by the plaintiff (Radiowealth Finance
Corporation v. Del Rosario, G.R. No. 138739, July 6, 2000); *****vs. denial: An order denying a
demurrer to evidence is not appealable because it is interlocutory; It can be subject to petition for
certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority (Katigbak
v. Sandiganbayan, G.R. No. 140183 July 10, 2003)
b. Criminal case—The defendant may adduce his evidence only if the demurrer is filed with
leave of court:
i. if with LOC: accused may adduce evidence
ii. if without LOC: accused is deemed to have waived his right to present evidence, and
submits the case for decision based on the prosecution’s evidence (Sec. 23, Rule 119)
*****In a criminal case, if the accused obtains leave of court and his demurrer to
evidence is denied, he has the right to present evidence in his defense. If his demurrer to evidence is
granted, he is acquitted and the prosecution cannot appeal. If the accused does not obtain leave of
court and his demurrer to evidence is denied, he waives his right to present evidence and the case is
decided on the basis of the evidence for the prosecution. The court may also dismiss the action on
the ground of insufficiency of the evidence on its own initiative after giving the prosecution the
opportunity to be heard. (Sec. 23 of Rule 119)
444
Bar 2004: The information for illegal possession of firearm filed against the accused specifically
alleged that he had no license or permit to possess the caliber .45 pistol mentioned therein. In its
evidence-in-chief, the prosecution established the fact that the subject firearm was lawfully seized by
the police from the possession of the accused, that is, while the pistol was tucked at his waist in plain
view, without the accused being able to present any license or permit to possess the firearm. The
prosecution on such evidence rested its case and within a period of five days therefrom, the accused
filed a demurrer to evidence, in sum contending that the prosecution evidence has not established the
guilt of the accused beyond reasonable doubt and so prayed that he be acquitted of the offense
charged. The trial court denied the demurrer to evidence and deemed the accused as having
waived his right to present evidence and submitted the case for judgment on the basis of the
prosecution evidence. In due time, the court rendered judgment finding the accused guilty of the
offense charged beyond reasonable doubt and accordingly imposing on him the penalty prescribed
therefor. Is the judgment of the trial court valid and proper? Reason. (5%) Yes. The judgment of the
trial court is valid. The accused did not ask for leave to file the demurrer to evidence. He is
deemed to have waived his right to present evidence. (Sec. 23 of Rule 119; People v. Flores, 269
SCRA 62 [1997]; Bernardo v. Court of Appeals, 278 SCRA 782 [1997]. *****However, the judgment is
not proper or is erroneous because there was no showing from the proper office like the Firearms
Explosive Unit of the Philippine National Police that the accused has a permit to own or possess
the firearm, which is fatal to the conviction of the accused. (Mallari v. Court of Appeals &People,265
SCRA 456[1996]).
doubt.445 Note that in the criminal action for violation of Batas Pambansa
Blg. 22, the corresponding civil action is included. Hence, if the accused did
not file the DTE with leave of court, he is not entitled to adduce controverting
evidence on the civil aspect of the case.446
4. More on the Arroyo case: although the Rules provide the denial of a motion to
file DTE cannot be assailed by appeal or certiorari, the Supreme Court can still
hear a petition for certiorari in the interest of substantial justice whenever there is
GADALEJ, under its superintending control power over the courts.447
445
Bar 1998: Facing a charge of Murder, X filed a petition for bail. The petition was opposed by the
prosecution but after hearing the court granted bail to X. On the first scheduled hearing on the merits,
the prosecution manifested that it was not adducing additional evidence and that it was resting its case. X filed a
demurrer to evidence without leave of court but it was denied by the court:;
(a) Did the court have the discretion to deny the demurrer to evidence under the circumstances
mentioned above? (2%) Yes. The Court had the discretion to deny the demurrer to the evidence,
because although the evidence presented by the prosecution at the hearing for bail was not
strong, without any evidence for the defense, it could be sufficient for conviction;
(b) If the answer to the preceding question is in the affirmative, can X adduce evidence in his
defense after the denial of his demurrer to evidence? [1%]: No. Because he filed the demurrer to the
evidence without leave of court. (Sec. 15, Rule 119, Rules of Criminal Procedure.) However, the trial
court should inquire as to why the accused filed the demurrer without leave and whether his lawyer
knew that the effect of filing it without leave is to waive the presentation of the evidence for the
accused. (People vs. Fores, 269 SCRA 62.)
(c) Without further proceeding and on the sole basis of the evidence of the prosecution, can
the court legally convict X for Murder? (2%) Yes. **Without any evidence from the accused, the
prima facie evidence of the prosecution has been converted to proof beyond reasonable doubt.
446
Bar 2003: In an action for violation of Batas Pambansa Big. 22, the court granted the accused’s
demurrer to evidence which he filed without leave of court. Although he was acquitted of the crime
charged, he, however, was required by the court to pay the private complainant the face value of the check.
The accused filed a Motion of Reconsideration regarding the order to pay the face value of the check on the
following grounds: a) the demurrer to evidence applied only to thecriminal aspect of the case; and b) at
the very least, he was entitled to adduce controverting evidence on the civil liability. Resolve the
Motion for Reconsideration. (6%): (a) The Motion for Reconsideration should be denied. **The
ground that the demurrer to evidence applied only to the criminal aspect of the case was not
correct because the criminal action for violation of Batas Pambansa Blg. 22 included the
corresponding civil action. (Sec. 1(b) of Rule 111); (b) The accused was not entitled to adduce
controverting evidence on the civil liability, because he filed his demurrer to evidence without leave
of court. (Sec. 23 of Rule 119).
447
GLORIA MACAPAGAL-ARROYO v. PEOPLE, 19 July 2016: After the Prosecution rested its
case, accused former President GMA and PCSO Manager Aguas then separately filed their demurrers
to evidence asserting that the Prosecution did not establish a case for plunder against them. The same
were denied by the Sandiganbayan, holding that there was sufficient evidence to show that they
had conspired to commit plunder. After the respective motions for reconsideration filed by GMA
and Aguas were likewise denied by the Sandiganbayan, they filed their respective petitions for
certiorari. Is certiorari a proper remedy to assail the denial of the demurrers to evidence? YES. The
special civil action for certiorari is generally not proper to assail such an interlocutory order issued
by the trial court because of the availability of another remedy in the ordinary course of law.
Moreover, Section 23, Rule 119 of the Rules of Court expressly provides that “the order denying the
motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable
by appeal or by certiorari before judgment.” It is not an insuperable obstacle to this action,
DTE in Civil Cases

Motion for Demurrer Denied Motion for Demurrer Granted but Reversed on Appeal
Denial is interlocutory, hence, not appealable. Sec. Order of the court is an adjudication on the
1, Rule 36 (that judgment should state clearly and distinctly merits. Hence, the requirement in Sec. 1, Rule 36
the facts and the law on which it is based), will not apply. should be complied with.
1. When DTE is denied or granted

2. Bar scenarios on DTE in civil cases
a. Among common carriers: in case of death of or injuries to passengers,
*****common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary diligence.448 Proof that the
defendant was negligent and that such negligence was the proximate cause of the
collision is not required. Thus, without proof that the common carrier has
exercised extraordinary diligence, the presumption of negligence stands.449
however, that the denial of the demurrers to evidence of the petitioners was an interlocutory order
that did not terminate the proceedings, and the proper recourse of the demurring accused was to
go to trial, and that in case of their conviction, they may then appeal the conviction, and assign
the denial as among the errors to be reviewed. *******Indeed, it is doctrinal that the situations in
which the writ of certiorari may issue should not be limited, because to do so “x x x would be
to destroy its comprehensiveness and usefulness. In the exercise of the Supreme Court’s
superintending control over other courts, it is to be guided by all the circumstances of each
particular case “as the ends of justice may require.” So it is that the writ will be granted where
necessary to prevent a substantial wrong or to do substantial justice.” The exercise of this power
to correct grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government cannot be thwarted by rules of procedure to the
contrary or for the sake of the convenience of one side. This is because the Court has the bounden
constitutional duty to strike down grave abuse of discretion whenever and wherever it is
committed. Thus, notwithstanding the interlocutory character and effect of the denial of the
demurrers to evidence, the petitioners as the accused could avail themselves of the remedy of
certiorari when the denial was tainted with grave abuse of discretion.
448
Bar 2004: AX, a Makati-bound paying passenger of PBU, a public utility bus, died instantly on board
the bus on account of the fatal head wounds he sustained as a result of the strong impact of the
collision between the bus and a dump truck that happened while the bus was still travelling on EDSA
towards Makati. The foregoing facts, among others, were duly established on evidence-in-chief by the
plaintiff TY, sole heir of AX, in TY’s action against the subject common carrier for breach of contract
of carriage. After TY had rested his case, the common carrier filed a demurrer to evidence,
contending that plaintiff’s evidence is insufficient because it did not show (1) that defendant was
negligent and (2) that such negligence was the proximate cause of the collision. Should the court grant
or deny defendant's demurrer to evidence? Reason briefly. (5%)
**The court should not grant defendant's demurrer to evidence because the case is for breach of
contract of carriage. Proof that the defendant was negligent and that such negligence was the proximate cause of
the collision is not required. (Articles 1170 and 2201, Civil Code; (Mendoza v. Phil. Airlines, Inc., 90
Phil. 836 [1952]; Batangas Transportation Co. v. Caguimbal, 22 SCRA171 U 968]; Abeto v. PAL, 115
SCRA 489 [1982]; Aboitiz v. Court of Appeals, 129 SCRA 95 [1984]).
449
[] Bar 2004: ABS Co. is the operator of several buses. One of the buses owned by ABS Co. rammed
upon a dump truck causing the instantaneous death of Nilo, one of the passengers of the ill-fated bus.
Consequently, Nestor, son of Nilo, filed a complaint against ABS Co. for damages. After Nestor had
DTE in Criminal Cases450

1. Rule on demurrer to evidence in criminal cases451
How made 1. Court on its own initiative; or
2. Upon filing of the accused for demurrer of evidence:
a. With leave of court; or
b. Without leave of court.
When made After the prosecution rests its case.
Ground Insufficiency of evidence
rested his case, ABS Co. filed a demurrer to evidence, contending that Nestor's evidence is
insufficient because it did not show (1) that ABS Co. was negligent and (2) that such negligence was
the proximate cause of the collision. Should the court grant or deny defendant's demurrer to evidence?
A: No, the court should not grant defendant’s demurrer to evidence. Under the Rules of Court, after
the plaintiff has completed the presentation of his evidence, the defendant may move for dismissal on
the ground that upon the facts and the law the plaintiff has shown no right to relief. Here, Nestor has
shown that he is entitled to the relief he is asking for. ABS Co. is a common carrier. Under
Art.1756 of the Civil Code, in case of death of or injuries to passengers, *****common carriers are
presumed to have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence. Proof that the defendant was negligent and that such negligence was the
proximate cause of the collision is not required. Thus, without proof that ABS Co. has exercised
extraordinary diligence, the presumption of negligence stands.
450
Q: State the rule on demurrer to evidence in the trial of criminal cases. (1989 Bar Question)
Answer: After the prosecution has rested its case, the court may dismiss the case on the ground
of insufficiency of evidence: (1) on its own or upon motion after giving the prosecution an opportunity to
be heard; or (2) on motion of the accused filed with prior leave of court. If the court denies the
motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion
to dismiss without express leave of court, he waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution. (Sec. 15 of Rule 119)
451
Q: After the government has rested its case of Raul s trial for Qualified Theft. Raul, with leave of
court, filed a “Motion to Acquit" on the ground of lack of evidence proving his guilt beyond
reasonable doubt. The motion was denied on the ground that Raul should have filed a demurrer to
evidence, not a “Motion to Acquit.” On the same day, without giving him the opportunity to present
his defense, Raul was convicted on the basis of the evidence adduced by the prosecution. (1994 Bar
Question)
A. Did the trial court correctly deny Raul's motion?No. The Court did not correctly deny
Raul’s motion to acquit. *****Demurrer to the evidence and motion to acquit are one and the
same thing. Demurrer to the evidence is actually a motion to dismiss the case based on the
insufficiency of the evidence of the prosecution. If the court finds that the evidence is insufficient, it
may dismiss the case on that ground, and that amounts to an acquittal of the accused. (Sec. 15.
Rule 119).
B. B. Was Raul’s conviction proper? Answer: No. Raul’s conviction was not proper because
he was not given the opportunity to present his defense. The rule is that if the court denies the
motion for dismissal filed with prior leave of court, the accused may adduce evidence in his
defense. It is only when the accused files such motion to dismiss without express leave of court
that he waives the right to present evidence and submits the case for judgment on the basis of the
evidence for the prosecution. (Id.)
Effect The court may dismiss the case (Sec. 23, Rule 119).
2. If the demurrer is sustained by the court, the order of dismissal is

tantamount to an acquittal, hence it is NOT appealable. On the other hand,
the order of denial of the demurrer to evidence is not reviewable by appeal or
certiorari before judgment, unless the denial is attended by grave abuse of
discretion, in which case such denial may be assailed through a petition for
certiorari.
3. When filed? After the prosecution rests its case.452
4. Effect of filing a demurrer with leave of court v. Filing a demurrer without
leave453
Demurrer With Leave of Court Demurrer Without Leave of Court
If leave of court is denied, the accused may proceed with If DTE is denied, it is tantamount to a
presenting his evidence. waiver of the accused’s right to present evidence
and as a consequence the case will be
submitted for judgment on the basis of the
evidence for the prosecution.
452
Q: Geronimo was charged with homicide in the Regional Trial Court of Pasay City. After his plea
of not guilty, the prosecution presented its evidence and formally offered several exhibits. Before
admitting or objecting to the exhibits offered by the prosecution, Geronimo moved that the
case be dismissed on the ground of insufficiency of evidence. The court denied the motion.
Thereafter, Geronimo called his first witness to the stand. The prosecution objected, contending
that Geronimo waived his right to present evidence since he never asked leave of court to demur
to the evidence presented by the prosecution. Decide. (1989 Bar Question) Answer:
Objection overruled. ******The rule on waiver does not apply because the prosecution
had not yet rested its case when Geronimo moved to dismiss on the ground of insufficiency of
evidence.
453
Q: The information for illegal possession of firearm filed against the accused specifically alleged that
he had no license or permit to possess the caliber .45 pistol mentioned therein. In its evidence-in-
chief, the prosecution established the fact that the subject firearm was lawfully seized by the
police from the possession of the accused, that is, while the pistol was tucked at his waist in plain view,
without the accused being able to present any license or permit to possess the firearm. The prosecution
on such evidence rested its case and within a period of five days therefrom, the accused filed a
demurrer to evidence, in sum contending that the prosecution evidence has not established the guilt of
the accused beyond reasonable doubt and so prayed that he be acquitted of the offense charged.
The trial court denied the demurrer to evidence and deemed the accused as having waived his right
to present evidence and submitted the case for judgment on the basis of the prosecution evidence. In
due time, the court rendered judgment finding the accused guilty of the offense charged beyond
reasonable doubt and accordingly imposing on him the penalty prescribed therefor. Is the judgment of
the trial court valid and proper? Reason. (5%) (2004 Bar Question) SUGGESTED ANSWER:
Yes. The judgment of the trial court is valid. The accused did not ask for leave to file the
demurrer to evidence. He is deemed to have waived his right to present evidence. (Sec. 23 of
Rule 119; People v. Flores, 269 SCRA 62 [1997]; Bernardo v. Court of Appeals, 2 78 SCRA 782
[1997]). However, the judgment is not proper or is erroneous because there was no showing from
the proper office like the Firearms Explosive Unit of the Philippine National Police that the accused
has a permit to own or possess the firearm, which is fatal to the conviction of the accused. (Mallari
v. Court of Appeals & People ,265 SCRA 456[1996]).
The motion for leave of court to file a demurrer to evidence shall If demurrer to evidence is consequentially
specifically state its grounds and shall be filed within a granted, the case will be dismissed, and will
non-extendible period of 5 days after the prosecution result to an acquittal of the accused
rests its case. The prosecution may oppose the motion (Goodland v. Co and Chan, G.R. No.
within a non-extendible period of 5 days from its 196685, December 14, 2011).
receipt.
If leave of court is granted, the accused may file the
demurrer to evidence within 10 days. The prosecution
may however, oppose the demurrer to evidence within a
non-extendible period of 10 days from the receipt of
the demurrer
[] Purpose of leave of court: To determine whether or not the defendant in

a criminal case has filed the demurrer merely to stall the proceedings (People v.
Mahinay, G.R. No. 109613, July 17, 1995).
5. The basis of the demurrer in criminal cases should be related to the elements of
the crime. If what is being demurred about, say age of the victim, is not an
element of the crime, a grant of DTE is not proper.454 Also, the corpus delicti in
homicide/murder is not the body of the victim, but the fact of death, hence DTE
is not proper just because the body is not found.455
454
Q: AA, a twelve-year-old girl, while walking alone met BB, a teenage boy who befriended her. Later,
BB brought AA to a nearby shanty where he raped her. The Information for rape filed against BB
states: "On or about October 30, 2015, in the City of S.P. and within the jurisdiction of this Honorable
Court, the accused, a minor, fifteen (15) years old with lewd design and by means of force, violence
and intimidation, did then and there, willfully, unlawfully and feloniously had sexual intercourse with
AA, a minor, twelve (12) years old against the latter's will and consent." At the trial, the prosecutor
called to the witness stand AA as his first witness and manifested that he be allowed to ask leading
questions in conducting his direct examination pursuant to the Rule on the Examination of a Child
Witness. BB's counsel objected on the ground that the prosecutor has not conducted a competency
examination on the witness, a requirement before the rule cited can be applied in the case. xxx After
the prosecution had rested its case, BB' s counsel filed with leave a demurrer to evidence, seeking the
dismissal of the case on the ground that the prosecutor failed to present any evidence on BB' s
minority as alleged in the Information. Should the court grant the demurrer? (2015)
A: NO, the court should not grant the demurrer. While it was alleged in the information
that BB was a minor at the time of the commission of the offense, the failure of the prosecutor to
present evidence to prove his minority is not a basis for the granting of the demurrer, because
minority of the accused is not an element of the crime of rape. Be that as it may, the Court should
not consider minority in rendering the decision. After all, the failure of the prosecutor to prove the
minority of AA may only affect the imposable penalty but may not absolve him from criminal liability.
455
Q: Charged with murder, Jorge Dumatol filed a demurrer to the evidence after the prosecution
rested on the ground that there is no evidence of the corpus delicti. Several witnesses testified that the
accused shot the victim and threw the body into the ocean. Notwithstanding a diligent search, the body
was not found. Evidence was introduced to the effect that the waters where the body was thrown is
shark-infested. Is the demurrer tenable? Explain your answer. (1990 Bar Question) Answer:
No, because the testimony of several witnesses that the accused shot the victim and. threw his
body into the ocean which was shark-infested and that despite diligent search the body was not found,
is sufficient evidence of the corpus delicti. In murder, the corpus delicti is the fact of death, whether or
6. The legal effect of grant of the DTE is an acquittal.456

——————————————————————————————
not feloniously caused. It does not refer to the body of the murdered person. (People v. Taruc, 16
SCRA 834; People v. Fontanosa, 20 SCRA 249)
456
Q: After the prosecution had rested and made its formal offer of evidence, with the court admitting
all of the prosecution evidence, the accused filed a demurrer to evidence with leave of court. The
prosecution was allowed to comment thereon. Thereafter, the court granted the demurrer, finding that
the accused could not have committed the offense charged. If the prosecution files a motion for
reconsideration on the ground that the court order granting the demurrer was not in accord
with the law and jurisprudence, will the motion prosper? Explain your answer. (3%) (2009 Bar
Question)
SUGGESTED ANSWER: NO, the motion will not prosper. With the granting of the
demurrer, the case shall be dismissed and the legal effect is the acquittal of the accused. ******A
judgment of acquittal is immediately executory and no appeal can be made therefrom. Otherwise
the Constitutional protection against double jeopardy would be violated.
3.15. Judgments and final orders
3.15.1. Judgment without trial****** 336

3.15.2. Contents of a judgment 340
3.15.3. Judgment on the pleadings 341
3.15.4. Summary judgments 343
3.15.5. Judgment on the pleadings vs. summary judgments [Rules 34 & 35]****** 345
———————————————————————————————
RULES RELATED TO JUDGMENTS (overall picture)

Rule 34. Judgment on the Pleadings
Rule 35. Summary Judgments
Rule 36. Judgments, Final Orders and Entry Thereof
MATTERS RELATED TO JUDGMENT

1. Judgment: the final ruling by a court of competent jurisdiction regarding the
rights or other matters submitted to it in an action or proceeding (Macahilig v.
Heirs of Garcia M. Magalit, G.R. No. 141423, November 15, 2000). It is the
court’s official and final consideration and determination of the respective
rights and obligations of the parties (46 AM Jur 2d, Judgments SS1).
*NB: “Judgment” is normally synonymous with “decision” (Tung Chin
Hui v. Rodriguez, G.R. No. 141938, April 2, 2001). “Resolution” is the term used
to refer to the judgment after a motion for reconsideration.
2. Judgment may be understood in 2 senses:
a. Judgment that disposes of a case in a manner that leaves nothing more
to be done by the court in respect thereto. In this sense, a final judgment is
distinguished from an interlocutory order (which does not finally terminate or
dispose of the case). It has also the effect of ending the litigation, and an
aggrieved party may then appeal from the judgment;
i. A ‘final’ judgment or order is one that finally disposes of a case,
leaving nothing more to be done by the Court in respect thereto, EG:, an
adjudication on the merits which, on the basis of the evidence presented at the
trial declares categorically what the rights and obligations of the parties are and
which party is in the right. Once rendered there is nothing more remains to be
done by the Court.
ii. An interlocutory order does not finally dispose of the case, and
does not end the Court’s task of adjudicating the parties’ contentions and
determining their rights and liabilities as regards each other. It is an order which
may not be questioned on appeal except only as part of an appeal that may
eventually be taken from the final judgment rendered in the case. (See
Investments, Inc. v. Court of Appeals). It is an **order which decides some

point or matter between the commencement and end of the suit but is not
the final decision on the whole controversy. It leaves something to be done
by the court before the case is finally decided on the merits.
*Remedy to question an improvident interlocutory order: File
a petition for certiorari under Rule 65 not under Rule 45. A petition for review
under Rule 45 is the proper mode of redress to question only final judgments. NB:
One cannot appeal an interlocutory order [Sec 1, Rule 41]
b. Judgment that is no longer appealable and is already capable of
being executed because the period for appeal has elapsed without a party
having perfected an appeal, or it has already been resolved by a highest possible
tribunal. In this sense, the judgment is commonly referred to as one that is
FINAL AND EXECUTORY (Riano, 2014).
3. It is vital to keep in mind that in the process of rendering judgment or in
resolving controversies, courts can only consider facts and issued pleaded by
the parties. Courts, as well as magistrates presiding over them are not
omniscient. They can only act on the facts and issues presented before their
own personal knowledge for evidence. Nor may they take notice of matters
except those expressly provided as subjects of mandatory judicial notice
(Social Justice Society v. Atienza, G.R. No. 156052, February 13, 2008).
KINDS OF JUDGMENT
1. Judgment upon COMPROMISE – It is one conferred on the basis of a
compromise agreement entered into between the parties; it is a **judgment on
the merits. It has the effect of res judicata and is IMMEDIATELY
EXECUTORY and NOT APPEALABLE. But it may be set aside on
grounds provided under Art. 2038, NCC, EG: mistake, fraud, violence, intimidation,
undue influence or falsity of documents (Aromin v. Floresca, G.R. No. 160994, July 27,
2006).
2. Judgment by CONFESSION – It is one rendered by the court when a party
expressly agrees to the other party’s claim or acknowledges the validity of the
claim against him; Kinds of judgment by confession:
a. Judgment by COGNOVIT ACTIONEM – a written confession of an
action by the defendant, subscribed but not sealed, and irrevocably
authorizing any attorney of any court of record to confess judgment and issue
execution usually for the sum named. It is given in order to save expense and
differs from a warrant of attorney (which is given to an expressly designated
attorney before the commencement of any action and is under seal).
**Warrants of attorney to confess judgment are not authorized
nor contemplated by our law. We are further of the opinion that provisions in
notes authorizing attorneys to appear and confess judgments against makers
should not be recognized in this jurisdiction by implication and should only be
considered as valid when given express legislative sanction (PNB v. Manila
Oil Refining & By-Products Company, Inc, G.R. No. L-18103, June 8, 1922).
b. Confession RELICTA VERIFICATIONEM – After pleading and
before trial, the defendant both confessed the plaintiff’s cause of action and withdrew
or abandoned his plea or other allegations, whereupon judgment was entered.
Judgment Upon Compromise Judgment By Confession
The provisions and terms are settled An affirmative and voluntary act of the
and agreed upon by the parties to defendant himself. The court exercises
the action, and which is entered in the a certain amount of supervision over the
record with the consent of the court. entry of judgment.
3. Judgment upon the MERITS – It is one that is rendered after consideration

of the evidence submitted by the parties during the trial of the case;
4. CLARIFICATORY judgment – It is rendered to clarify an ambiguous
judgment or one difficult to comply with;
5. Judgment NUNC PRO TUNC457 (Now for then) – A judgment intended to
enter into the record the acts which had already been done, but which do not
appear in the records. Its only function is to record some act of the court
which was done at a former time, but which was not then recorded, in order to
make the record speak the truth, without any changes in substance or any material
respect;
6. Judgment SIN PERJUICIO – Judgment without a statement of the facts in
support of its conclusion to be later supplemented by the final judgment.
**This is not allowed;
7. Judgment BY DEFAULT (Sec. 3, Rule 9) – Rendered by the court following a
default order or after it received, ex parte, plaintiff’s evidence;
8. Judgment on the PLEADINGS (Rule 34) – Proper when an answer fails to
tender an issue because of a general or insufficient denial of the material
allegations of the complaint or when the answer admits the material
allegations of the adverse party's pleading;
457
Q: An order of the court requiring a retroactive re-dating of an order, judgment or document
filing be entered or recorded in a judgment is: (2014) (A) pro hac vice (B) non pro tunc (C)
confession relicta verification (D) nolle prosequi. A: (B) non pro tunc. The object of a judgment nunc
pro tunc is not the rendering of a new judgment and the ascertainment and determination of new
rights, but is one placing in proper form on the record, the judgment that had been previously
rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to
correct judicial errors, such as to render a judgment which the court ought to have rendered, in place
of the one it did erroneously render, nor to supply non-action by the court, however erroneous the
judgment may have been (Filipinas Faroil Processing v. Dejapa, G.R. No. 167332, February 7, 2011).
[] A judgment "non pro tunc" is one which: (2012 BAR)
a. dismissesacasewithoutprejudicetoitbeingre-filed.
b. clarifies an ambiguous judgment or a judgment which is difficult to comply with.
c. one intended to enter into the record the acts which already have been done, but
which do not appear in the records.
d. isamemorandumdecision.
9. SUMMARY judgment (Rule 35) – One granted by the court for the prompt
disposition of civil actions wherein it clearly appears that there exists no
genuine issue or controversy as to any material fact;
10. SEVERAL judgment (Sec. 4, Rule 36) – It is one rendered by a court against
one or more defendants and not against all of them, leaving the action to proceed
against the others;
11. SEPARATE judgment (Sec. 5, Rule 36) – It is one rendered disposing of a
claim among several others presented in a case, after 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 said 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.
Several Judgment Separate Judgment
Proper where the liability of each party is clearly Proper when more than one claim
separable and distinct from his co-parties such that the for relief is presented in an action and a
claims against each of them could have been the subject determination as to the issues
of a separate suit, and the judgment for or against one of material to the claim has been made.
them will not necessarily affect the other; **not proper in The action shall proceed as to the
actions against solidary debtors. remaining claims.
12. SPECIAL judgment (Sec. 11, Rule 39) – One which can only be complied
with by the judgment obligor because of his personal qualifications or
circumstances or one that requires the performance of an act other than:
a. Payment of money; and
b. Sale of real and personal property;
13. Judgment for SPECIFIC ACTS (Sec. 10, Rule 39) – Applicable in cases of:
a. Conveyance, delivery of deeds, or other specific acts, vesting title;
b. Sale of real or personal property;
c. Delivery or restitution of real property;
d. Removal of improvements on property subject of execution; or
e. Delivery of personal property;
14. Judgment on DEMURRER TO EVIDENCE (Rule 33) – A judgment
rendered by the court dismissing a case upon motion of the defendant, made
after plaintiff has rested his case, on the ground that upon the facts presented by the
plaintiff and the law on the matter, plaintiff has not shown any right to relief;
15. CONDITIONAL judgment – It is one the effectivity of which depends
upon the occurrence or non-occurrence of an event;
16. FINAL judgment – One which disposes of the whole subject matter or
terminates the particular proceedings or action, leaving nothing to be done by
the court but to enforce by execution what has been determined.

——————————
3.15.1. Judgment without trial******

*INSTANCES WHEN THERE CAN BE JUDGMENTS WITHOUT TRIAL458
1. Where the pleadings of the parties tender no issue at all, a judgment on the
pleadings may be directed by the court (Rule 34);459
2. Where from the pleadings, affidavits, depositions and other papers, there is
actually no genuine issue, the court may render a summary judgment (Rule 35);
3. Where the parties have entered into a compromise or an amicable settlement
either during the pre-trial or while the trial is in progress (Rule 18; Art. 2028, NCC);
4. Where the parties agree in writing, upon the facts involved in the litigation,
and submit the case for judgment on the facts agreed upon, without the
introduction of evidence. If however, there is no agreement as to all the facts
in the case, trial may be held only as to the disputed facts (Sec. 6, Rule 30);
5. Where the complaint has been dismissed with prejudice (Sec. 5, Rule 16; Sec. 3,
Rule 17; last. par.; Sec. 5, Rule 7);
6. Where the civil case falls under the operation of the Rules on Summary
Procedure (Rule 17);
7. When the case falls under the Rule on Small Claims.
458
Q: Can civil and criminal cases be adjudicated without trial? Explain? (1996 Bar Question) Answer:
Civil cases maybe adjudicated without trial, such as in the following rules:
a) Summary Judgment.
b) Judgment on the Pleadings.
c) Summary procedure.
d) Sec. 3 of Rule 17.
*****Criminal cases as a rule may not be adjudicated without trial. Some exceptions are the following:
a) Plea of guilty.
b) Motion to quash on the ground of double jeopardy or extinction of criminal action or
liability.
c) Motion to dismiss on the ground of violation of the right to a speedy trial.
459
*Bar 2005: In a complaint for recovery of real property, RR averred that he is the owner of the said
property by virtue of a deed of sale executed by JJ in his favor. Copy of the deed of sale was
appended to the complaint. In his unverified answer, JJ denied the allegation concerning the sale of the
property in question, as well as the appended deed of sale, for lack of knowledge or information
sufficient to form a belief as to the truth thereof. Is it proper for the court to render judgment
without trial? Explain.
A: Yes, a judgment on the pleadings can be rendered by the court without need of a trial.
Defendant cannot deny the sale of the property for lack of knowledge or information sufficient to
form a belief as to the truth thereof. The answer amounts to an admission. The defendant must
aver or state positively how it is that he is ignorant of the facts alleged. Moreover, the
genuineness and due execution of the deed of sale can only be denied by the defendant under
oath and failure to do so is an admission of the deed. Hence, a judgment on the pleadings can be
rendered by the court without need of a trial.
3.15.2. Contents of a judgment

1. Parts of a judgment
a. Ratio decidendi – The body of judgment; Latin: the reasoning berind
the decision.
b. Fallo460 – The dispositive portion of the judgment. It is also the part of
judgment that is subject to execution because this is the judgment of the court
itself, i.e., if the petition is granted or denied and the relief granted.
2. Resolution of a conflict between the parts of a decision
*GR: If there is a conflict between the ratio decidendi and the fallo, the
fallo should prevail because it is the final order while the ratio decidendi is
merely a statement ordering nothing.
**XPN: If there is a mere mistake in the fallo and the the ratio
decidendi is so clear that it states a conclusion, the latter should prevail
(Poland Industrial Limited v. National Development Company, G.R. No. 143866,
August 22, 2005).
3. Bar 2006: Judgment vs. an opinion of the court
a. The judgment or fallo is the final disposition of the court which is
reflected in the dispositive portion of the decision
b. while the opinion of the court is contained in the body of the decision
that serves as a guide or enlightenment to determine the ratio decidendi of the
decision.
**Obiter dictum: an opinion expressed by a court, which is not
necessary to the decision of the case before it. It is neither enforceable as a
relief nor a source of a judicially actionable claim.
4. Requisites of a valid judgment*****
a. The court or tribunal must be clothed with authority to hear and
determine the matter before it;
b. The court must have jurisdiction over the parties and the subject
matter;
c. The parties must have been given an opportunity to adduce evidence
in their behalf;
d. The evidence must have been considered by the tribunal in deciding
the case;
e. The judgment must be *****in writing, personally and directly
prepared by the judge. NB: A verbal judgment is, in contemplation of law, not
in esse, therefore, ineffective (Corpuz v. Sandiganbayan, G.R. No. 162214,
460
Q: What is the difference between a judgment and an opinion of the court? 2.5% (2006 Bar
Question) SUGGESTED ANSWER: The judgment or fallo is the final disposition of the Court
which is reflected in the dispositive portion of the decision, while the opinion of the court is
contained in the body of the decision that serves as a guide or enlightenment to determine the ratio
decidendi of the decision. [TOM: but the question did not ask the difference between a fallo and ratio
decidendi]
November 11, 2004).

f. The judgment must state clearly the FACTS and the LAW on which it
is based, signed by the judge and filed with the clerk of court (Sec. 1, Rule
36). NB: This requirement ****refers to decisions and final orders on the
merits not to those resolving incidental matters (Pablo-Gualberto v. Gualberto, G.R. No.
154994, June 28, 2005).
[] Bar 2004: After plaintiff, in an ordinary civil action before the RTC, has
completed presentation of his evidence, defendant without prior leave of court
moved for dismissal of plaintiff's complaint for insufficiency of plaintiff's
evidence. After due hearing of the motion and the opposition thereto, the court
issued an order, reading as follows: "The Court hereby grants defendant's motion
to dismiss and accordingly orders the dismissal of plaintiff's complaint, with the
costs taxed against him. It is so ordered." Is the order of dismissal valid? May
plaintiff properly take an appeal? A: The ****order or decision is void because it
neither stated the findings of fact and law as required by Sec. 14, Art. VIII of
the Constitution and Sec. 1, Rule 36 of the Rules of Court nor adopts by
reference the factual findings by the lower court. Being void, appeal is not
available. The proper remedy is certiorari under Rule 65.
5. ******MEMORANDUM DECISION: refers to decisions which adopt by
reference the findings of facts and conclusions of law of inferior tribunals.461
In this jurisdiction, it has been held that memorandum decisions do not
transgress the constitutional requirement in Art. VIII, Sec. 14, on clearly and
distinctly stating the facts and the law on which the decision is based. Nonetheless, it
would be more prudent for a memorandum decision not to be simply
limited to the dispositive portion but to:
a. State the nature of the case;
b. Summarize the facts with references to the record; and
c. Contain a statement of the applicable laws and jurisprudence and the
tribunal’s assessments and conclusions on the case. This practice would better
enable a court to make an appropriate consideration of whether the dispositive portion
of the judgment sought to be enforced is consistent with the findings of facts and conclusions of
law made by the tribunal that rendered the decision (Oil and Natural Gas Commission v.
CA, G.R. No. 114323, September 28, 1999).462
461
RTC decides an appeal from the MTC involving a simple collection case. The decision
consists of only one page because it adopted by direct reference the findings of fact and
conclusions of law set forth in the MTC decision. Which statement is most accurate? (2012 BAR)
a. The RTC decision is valid because it was issued by a court of competent jurisdiction.
b. TheRTCdecisionisvalidbecauseitexpeditedtheresolutionoftheappeal.
c. The RTC decision is valid because it is a memorandum decision recognized by law.
d. The RTC decision is valid because it is practical and convenient to the judge and the parties.
462
[] Q. Lawyer W lost his ejectment case in the Municipal Trial Court. He appealed the decision to the
RTC which V, the judge thereof, affirmed through a memorandum decision. He filed a motion for
reconsideration praying that the RTC should state the facts and the law on which its decision is based.
6. When shall the judgment or final order be entered by the clerk in the book of
entries of judgments? Section 2. Entry of judgments and final orders. — If none of
the following is filed within the time provided in the Rules:
a. appeal or
b. motion for new trial or
c. motion for reconsideration,
7. When is the date of finality of the judgment or final order? (Sec 2a)… it shall
be deemed to be the DATE OF ITS ENTRY.
8. What shall the record contain? (Sec 2c): the DISPOSITIVE PART of the
judgment or final order and shall be signed by the clerk, within a certificate that
such judgment or final order has become final and executory. (2a, 10, R51)
———————————————
3.15.3. Judgment on the pleadings

1. Bar 1999: Grounds for judgment on the pleadings******
a. The answer fails to tender an issue because of:
i. General denial of the material allegations of the complaint;
ii. Insufficient denial of the material allegations of the complaint;
b. The answer admits material allegations of the adverse party’s pleadings
(Sec. 1, Rule 34).463
Judge V denied his motion. Instead of filing a Petition for Review, lawyer W filed an administrative
complaint against Judge V for breach of the Code of Judicial Conduct. What is the liability of Judge V,
if any? (1991 Bar).
A. There is no breach of the Code of Judicial Conduct committed by the RTC Judge. The
memorandum decision rendered in an appeal from the Municipal Court in its original
jurisdiction officers carries with it the statement of facts found by the Municipal Court which are
deemed affirmed by the RTC judge. *****Memorandum decisions are allowed on appeal. NB.
The Court has sanctioned the use of memorandum decisions, a species of succinctly written decisions
by appellate courts in accordance with the provisions of Section 40, B.P. Blg. 129 on the grounds of
expediency, practicality, convenience and docket status of our courts. (Yao v. CA, G.R. No.
132428, 24 October 2000).
463
Q: Plaintiff filed a complaint denominated as accion publiciana, against defendant. In his answer,
defendant alleged that he had no interest over the land in question, except as lessee of Z. Plaintiff
subsequently filed an affidavit of Z, the lessor of defendant, stating that Z had sold to plaintiff all his
rights and interests in the property as shown by a deed of transfer attached to the affidavit. Thus,
plaintiff may ask the court to render: (2014) (A) summary judgment (B) judgment on the pleadings (C)
partial judgment (D )judgment by default
A: (B) judgment on the pleadings. When the answer fails to tender an issue, that is, if it does
not deny the material allegations in the complaint or admits said material allegations of the adverse
party’s pleadings by admitting the truthfulness thereof and/or omitting to deal with them at all, a
judgment on the pleadings is appropriate (Eugenio Basbas v. Beata Sayson, G.R. No. 172660, August
24, 2011).
NB: A motion for judgment on the pleadings may be filed only by the
plaintiff or the claimant464. Hence—
GR: This Motion is only available to Plaintiff.
XNP: When defendant presents a counterclaim.
2. Instances when judgment on the pleadings is NOT applicable****

a. Actions for declaration of nullity of marriage, annulment of marriage or
for legal separation;
b. Unliquidated damages: **take note that unliquidated damages cannot be
impliedly admitted—they cannot just be specifically denied: there has to be a
trial [Sec 11, Rule 8]. Compare this to liquidated damages: if they are not
specifically denied, they are deemed admitted, hence, there can be judgment on
the pleadings. For unliquidated damages, there can be no judgment on the
pleadings—they have to be proven during a trial.
c. Insufficiency of fact – amendment is the remedy
3. Effect when the plaintiff moves for judgment on the pleadings and
**defendant interposes no objection: The latter is deemed to have admitted
the truth of the allegations of the complaint, so that there is no longer any
necessity for the plaintiff to submit evidence of his claims (Phil. Advertising
Counselors, Inc. v. Revilla, G.R. No. L-31869, August 8, 1973). NB: the trial
court has the discretion.465
464
BAR 2016: Q: Royal Bank (Royal) filed a complaint for a sum of money against Ervin and Jude
before the RTC of Manila. The initiatory pleading averred that on February 14, 2010, Ervin obtained a
loan from Royal in the amount of Pl Million, as evidenced by Promissory Note No. 007 (PN) signed
by Ervin. Jude signed a Surety Agreement binding herself as surety for the loan. Royal made a final
demand on February 14, 2015 for Ervin and Jude (defendants) to pay, but the latter failed to pay. Royal
prayed that defendants Ervin and Jude be ordered to pay the amount of P1 Million plus interests. In
their answer, Ervin admitted that he obtained the loan from Royal and signed the PN. Jude also
admitted that she signed the Surety Agreement. Defendants pointed out that the PN did not provide
the due date for payment, and that the loan has not yet matured as the maturity date was left blank to
be agreed upon by the parties at a later date. Defendants filed a Motion for a Judgment on the
Pleadings on the ground that there is no genuine issue presented by the parties' submissions. Royal
opposed the motion on the ground that the PN' s maturity is an issue that must be threshed out during
trial. Resolve the motion with reasons.
SUGGESTED ANSWER: The Motion for Judgment on the Pleadings should be denied. Under
the Rules of Civil Procedure, a motion for judgment on the pleadings may be filed only by the plaintiff
or the claimant. Here it was the Defendants, not the Plaintiff Royal Bank, which filed a motion
for judgment on the pleadings. Hence the motion should be denied. (Jurist Review Center, Inc.)
465
[] Q: Sunbanun, owner of a residential house, entered into a lease agreement with Go, which the
latter subleased. Three months before the expiration of the lease agreement, Sunbanun, alleging that
Go violated the agreement because the latter subleases the premises, said that she is terminating the
lease. Thereafter, Go filed an action for damages against Sunbanun. At the pre-trial, Sunbanun
moved for the case to be submitted for judgment on the pleadings considering that the only
disagreement between the parties was the correct interpretation of the lease contract. Go did not
4. Judgment on the pleadings v. Judgment by default466*****

Judgment on the Pleadings Judgment by Default
The defendant answered, but did not tender an issue or admitted the The defendant did not
material allegations in the complaint. file an answer.
Evidence is not received as the same is based on the pleadings alone. Evidence is received.
Decision is based on the allegations in the pleadings. Decision is based on the

evidence presented.
Generally available only to the plaintiff, unless the defendant presents a counterclaim. Available to plaintiff.
5. Motion for judgment on the pleadings v. Motion to dismiss

Motion for Judgment on the Pleadings Motion to Dismiss
Filed by the plaintiff if the answer raises Filed by a defendant to a complaint, counterclaim, cross-claim or
no issue. third-party complaint.
**If the complaint states no cause of action, a motion to dismiss should be filed
and not a motion for judgment on the pleadings.
————————————————
3.15.4. Summary judgments

1. When proper: ******It is proper where, upon motion467 filed after the issues
object to the motion. The trial court rendered judgment in favor of Go. Is judgment on the pleadings
proper? A: Yes. The **trial court has the discretion to grant a motion for judgment on the
pleadings filed by a party if there is no controverted matter in the case after the answer is filed.
The instant case is unusual because it was Sunbanun, and not the claimant Go, who moved for a
judgment on the pleadings during the pre-trial. Sunbanun, in moving for a judgment on the
pleadings without offering proof as to the truth of her own allegations and without giving Go the
opportunity to introduce evidence, is deemed to have admitted the material and relevant
averments of the complaint, and to rest her motion for judgment based on the pleadings of the
parties (Sunbanun v. Go, G.R. No. 163280, February 2, 2010).
466
A judgment by default can be issued despite an Answer being filed in: (2012 BAR)
a. annulmentofmarriage.
b. legalseparation.
c. cases where a party willfully fails to appear before the officer who is to take his deposition.
d. declarationofnullityofmarriage.
467
Will the non-resolution of a motion for summary judgment prevent the holding of the pre-trial?
No. The rule only spells out that unless the motion for such judgment has earlier been filed, the
pre-trial may be the occasion in which the court considers the propriety of rendering judgment
on the pleadings or summary judgment. If no such motion was earlier filed, the pre-trial judge may
then indicate to the proper party to initiate the rendition of such judgment by filing the
necessary motion. Indeed, such motion is required by either Rule 34 (Judgment on the Pleadings) or
Rule 35 (Summary Judgment) of the Rules of Court. *******The pre-trial judge cannot motu
proprio render the judgment on the pleadings or summary judgment. In the case of the motion
for summary judgment, the adverse party is entitled to counter the motion. Even so, the
petitioners cannot validly insist that the CA should have first resolved their Motion for Summary
Judgment before holding the pre-trial. They could not use the inaction on their motion to justify
had been joined and on the basis of the pleadings and papers filed, the court
finds that there is NO GENUINE ISSUE as to any material fact except as to
the amount of damages (Ley Construction & Dev. Corp. v. Union Bank of the
Phil., G.R. No. 133801, June 27, 2000).468
a. For the claimant:469 any time after the pleading in answer thereto has
been served;470
b. For the defendant:471 anytime.
their non-appearance with their counsel at the pre-trial, as well as their inability to file their pre-
trial brief. In that regard, their appearance at the pre-trial with their counsel was mandatory. Why?
mandatory character of the pre-trial: they could urge the trial court to resolve their pending
Motion for Summary Judgment during the pre-trial. SPOUSES PASCUAL v. FIRST
CONSOLIDATED RURAL BANK (BOHOL), 2017
468
1. Summary Judgments
a. For claimant [Sec 1]
i. Who may file: A party seeking to recover upon a claim, counterclaim, or cross-claim or to
obtain a declaratory relief
ii. When? at any time after the pleading in answer thereto has been served,
iii. Motion: move with supporting affidavits, depositions or admissions for a summary
judgment in his favor upon all or any part thereof.
b. For defending party [Sec 2]
i. Who: A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief
is sought
ii. When: at any time,
iii. Motion: move with supporting affidavits, depositions or admissions for a summary
judgment in his favor as to all or any part thereof.
2. Service of motion [Sec 3] The motion shall be served at least ten (10) days before the time specified
for the hearing.
3. Action of the adverse party [Sec3]; he may serve opposing affidavits, depositions, or admissions at least
three (3) days before the hearing.
469
a) For the claimant: A party seeking to recover upon a claim, counterclaim, or cross-claim or to
obtain a declaratory relief may, at any time after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or
any part thereof (Sec. 1, Rule 35).
470
May a motion for summary judgment can be filed before the pre-trial? Yes. It is erroneous for
the CA to declare that "it is only at the pre-trial that the rules allow the courts to render judgment on
the pleadings and summary judgment, as provided by Section 2(g) of Rule 18 of the Rules of Court."
The filing of the motion for summary judgment may be done prior to the pre-trial. Section 1, Rule
35 of the Rules of Court permits a party seeking to recover upon a claim, counterclaim, or cross-claim
or seeking declaratory relief to file the motion for a summary judgment upon all or any part thereof
in his favor (and its supporting affidavits, depositions or admissions) "at any time after the pleading
in answer thereto has been served;" while Section 2 of Rule 35 instructs that a party against whom a
claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may file the motion for
summary judgment (and its supporting affidavits, depositions or admissions) upon all or any part
thereof "at any time." As such, the petitioners properly filed their motion for summary judgment prior
to the pre-trial. SPOUSES PASCUAL v. FIRST CONSOLIDATED RURAL BANK (BOHOL),
2017
471
b) For the defendant
1. A party against whom a claim, counterclaim or cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting affidavits, depositions or admissions for a summary
judgment in his favor as to all or any part thereof (Sec. 2, Rule 35).
2. ******Requisites of Summary Judgment

a. The motion shall be served at least 10 days before the time specified for
the hearing. The adverse party may serve opposing affidavits, depositions, or
admissions at least 3 days before the hearing; NB: The hearing contemplated (with 10-
day notice) is for the purpose of determining whether the issues are genuine
or not, not to receive evidence on the issues set up in the pleadings. The matter
may be resolved, and usually is, on the basis of affidavits, depositions,
admissions (Galicia v. Polo, G.R. No. L-49668, Nov. 14, 1989; Carcon Devt.
Corp. v. CA, G.R. No. 88218, December 17, 1989).
b. ****Except for the amount of damages, there must be no genuine
issue as to any material fact;472 NB: There is genuine issue when an issue of fact
is presented which requires presentation of evidence as distinguished from a
sham, fictitious, contrived or false claim (Monterey Foods Corp. v. Eserjose, G.R. No.
153126, September 11, 2003).
c. The party presenting the motion for summary judgment must be
entitled to a judgment as a matter of law.473
3. Important features of Rule 35**
a. There is no limitation as to the type of action in which the remedy is
available (claim, counterclaim, cross claim, declaratory relief);
b. The remedy is available to both parties alike; and
c. The summary judgment procedure has been coupled with deposition-
2. Burden of demonstrating the absence of genuine issue of fact: *****The party who moves for
summary judgment has the burden of demonstrating clearly that the issue posed in the complaint is
patently unsubstantial so as not to constitute a genuine issue for trial (Riano, 2014).
472
[] Q: Garcia, et al. filed a complaint for quieting of title with writ of preliminary injunction with
the RTC against Eland Philippines, Inc. The latter found out that the lot was the subject of a land
registration proceeding that had already been decided by the same court. Eland thus filed a motion
to dismiss. The motion was denied and the trial court enjoined Eland to file its answer. Thereafter,
Garcia, et.al. moved to declare Eland in default which was granted and the former were allowed to
present evidence ex parte. After the many motions initiated by Eland were denied, Garcia, et al.
moved for summary judgment. The motion was granted and the trial court decided in Garcia’s, et al.
favor. Is summary judgment proper? A: No. *****Trial courts have limited authority to render
summary judgments and may do so only when there is clearly no genuine issue as to any
material fact. Eland is already the registered owner of the parcel of land in question, pursuant to a
decree of registration based on the ruling of the same court that granted the summary judgment. **By
granting the summary judgment, the trial court has in effect annulled its former ruling based on
a claim of possession and ownership of the same land for more than 30 years without the benefit of a full-blown
trial. The fact that Garcia, et al. seek to nullify the original certificate of title issued to Eland on the
claim that the former were in possession of the same land for a number of years, is already a **clear
indicium that a genuine issue of a material fact exists (Eland Philippines, Inc. v. Azucena Garcia et
al., G.R. No. 173289, February 17, 2010).
473
4. Applicability: After the hearing, the judgment sought shall be rendered forthwith if the pleadings,
supporting affidavits, depositions, and admissions on file, show that,
a. **except as to the amount of damages, there is NO GENUINE ISSUE as to any
material fact and
b. that the moving party is entitled to a judgment as a matter of law.
discovery procedure (Feria & Noche, 2013).

4. Bases of summary judgment474
a. Affidavits475 made on personal knowledge;
b. Depositions of the adverse party or a third party under Rule 23;
c. Admissions of the adverse party under Rule 26; and
d. Answers to interrogatories under Rule 25. All intended to show that:
i. There is no genuine issue as to any material fact, except damages
which must always be proved; and
bii. The movant is entitled to a judgment as a matter of law.
5. Consequences when a case is not fully adjudicated: trial476 shall be
conducted on the controverted facts (Sec. 4, Rule 35).477
474
Form of affidavits and supporting papers. [Sec 5] Supporting and opposing affidavits
a. shall be made on personal knowledge,
b. shall set forth such facts as would be admissible in evidence, and
c. shall show affirmatively that the affiant is competent to testify to the matters stated
therein.
*NB: Certified true copies of all papers or parts thereof referred to in the affidavit shall be
attached thereto or served therewith.
[] Affidavits in bad faith. [Sec 6] Should it appear to its satisfaction at any time that any of the
affidavits presented pursuant to this Rule are presented in bad faith, or solely for the purpose of
delay, the court shall forthwith
a. order the offending party or counsel to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits caused him to incur including attorney's fees,
b. it may, after hearing further adjudge the offending party or counsel guilty of contempt. (6a, R34)
475
d) Affidavits and attachments
1. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in
the affidavit shall be attached thereto or served therewith (Sec. 5, Rule 35).
2. Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the
Rules are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order
the offending party or counsel to pay to the other party the amount of the reasonable expenses
which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing,
further adjudge the offending party or counsel guilty of contempt (Sec. 6, Rule 35).
476
What if judgment is not rendered upon the whole case or for all the reliefs sought and a trial is
necessary [Sec 4]? The court at the hearing of the motion, by examining the pleadings and the evidence
before it and by interrogating counsel shall ascertain
a. what material facts exist without substantial controversy and
b. what are actually and in good faith controverted.
*NB: It shall thereupon make an order specifying the facts that appear without substantial
controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing
such further proceedings in the action as are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the controverted facts accordingly.
477
c) When the case not fully adjudicated
1. Consequences when a case is not fully adjudicated: If on motion, judgment is not rendered
upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the
motion, by examining the pleadings and the evidence before it and by interrogating counsel shall
ascertain what material facts exist without substantial controversy and what are actually and in good
faith controverted. It shall thereupon make an order specifying the facts that appear without
6. **A partial summary judgment is not a final or appealable judgment;478 they

are interlocutory, hence, not appealable, but may be challenged under Rule 65.479
3.15.5. Judgment on the pleadings vs.480 summary judgments [Rules 34 &

35]******
JUDGMENT ON THE PLEADINGS SUMMARY JUDGMENTS [R35]
[R34]
Where an answer FAILS TO TENDER AN where, after the issues had been joined and on
ISSUE, or otherwise admits the material the basis of the pleadings and papers filed, the
allegations of the adverse party's pleading. court finds that there is NO GENUINE ISSUE
as to any material fact except as to the amount of
damages
*****Based solely on the pleadings. Based on the pleadings, depositions,
admissions and affidavits.
substantial controversy, including the extent to which the amount of damages or other relief is not in controversy,
and directing such further proceedings in the action as are just. The **facts so specified shall be
deemed established, and the trial shall be conducted on the controverted facts accordingly (Sec.
4, Rule 35).
2. **A partial summary judgment is not a final or appealable judgment (Province of Pangasinan v.
CA, G.R. No. 104266, March 31, 1993)
478
(Province of Pangasinan v. CA, G.R. No. 104266, March 31, 1993).
479
[] Bar 2004: After Geoff has served and filed his answer to John's complaint for damages, John
served and filed a motion for a summary judgment in his favor upon all of his claims. Geoff served
and filed his opposition to the motion. After due hearing, the court issued an order (1) stating that
the court has found no genuine issue as to any material fact and thus concluded that John is
entitled to judgment in his favor as a matter of law except as to the amount of damages recoverable,
and (2) accordingly ordering that John shall have judgment summarily against Geoff for such
amount as may be found due John for damages, to be ascertained by trial on October 7, 2004, at
8:30 in the morning. May Geoff properly take an appeal from said order? Or, may Geoff properly
challenge said order thru a special civil action for certiorari? A: The **plaintiff may not properly
take an appeal from said order because it is an interlocutory order, not a final and appealable order. It
does not dispose of the action or proceeding. **Partial summary judgments are interlocutory.
There is still something to be done, which is the trial for the adjudication of damages, but the
defendant may properly challenge said order thru a special civil action for certiorari under Rule 65
on the ground of abuse of discretion amounting to lack or excess of jurisdiction.
480
Q: What do you understand by a Summary judgment? How is it distinguished from & Judgment on
the Pleadings? (1989 Bar Question) Answer:
*****A summary judgment is one rendered by a Court without a trial on motion of either a
claimant or a defending party, with at least ten (10) days notice before the time specified for the
hearing, when the pleadings, supporting affidavits made on personal knowledge which are not
rebutted by opposing affidavits, depositions or admissions, show that, except as to the amount
of damages, there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.
It is distinguished from a judgment on the pleadings in that the latter is based on the
pleadings alone. A judgment on the pleadings may be rendered when the answer to the
complaint, counterclaim, cross-claim or third-party complaint fails to tender an issue or
otherwise admits the material allegations of the adverse party’s pleading. (Rules 19 and 34).
JUDGMENT ON THE PLEADINGS SUMMARY JUDGMENTS [R35]

[R34]
Generally available only to the plaintiff, unless Available to both plaintiff and defendant.
defendant presents a counterclaim.
The answer fails to tender an issue or there is There is no genuine issue between the parties, i.e.
an admission of material allegations. there may be issues but these are irrelevant.
3-day notice for motion required. 10-day notice required.
On the merits May be interlocutory (i.e. partial summary
judgments) or on the merits.
Bar areas on Judgment on the pleadings (JOP) and Summary Judgments (SJ)
1. JOP vs. SJ:
a. Even if the answer does tender an issue, and therefore a judgment on the
pleadings is not proper, a summary judgment may still be rendered if the issues
tendered are not genuine, are shams, fictitious, contrived up, set-up in bad faith,
patently unsubstantial (Vergara v. Suelto, G.R. No. L-74766, December 21, 1987).
b. Both JP and SP cannot be rendered motu propio by the court.481
2. JOP:
a. Judgment on the pleading is proper only when the answer fails to
tender an issue, or otherwise admits the material allegations of the adverse
party’s pleading (Sec. 1, Rule 34). When it appears that not all the material
allegations of the complaint were admitted in the answer, because some of
them were either denied or disputed, and the defendant has set up certain special
defenses which, if proven, would have the effect of nullifying plaintiff’s main
cause of action, judgment on the pleadings cannot be rendered.482
481
A. What are the grounds for judgment on the pleadings? (2%) The grounds for judgment on the
pleadings .are where an answer fails to tender an issue, or otherwise admits the material allegations of
the adverse party’s pleading. (Sec. 1, Rule 34 of the 1997 Rules of Civil Procedure).
B. A's Answer admits the material allegations of B’s Complaint. May the court motu proprio
render judgment on the pleadings? Explain. (2%) No, a motion must be filed by the adverse party.
(Sec. 1, Rule 34 of the 1997 Rules) The court cannot motu proprio render judgment on the
pleadings.
C. A brought an action against her husband B for annulment of their marriage on the ground
of psychological incapacity. B Filed his Answer to the Complaint admitting all the allegations therein
contained. May A move for judgment on the pleadings? Explain. (2%) No, because even if B’s answer
to A’s complaint for annulment of their marriage admits all the allegations therein contained, the
material facts alleged in the complaint must always be proved. (Sec. 1 of Rule 34.)
482
Q: Plaintiff sued defendant for collection of P 1 million based on the latter's promissory note. The
complaint alleges, among others:
1. Defendantborrowedlil1millionfromplaintiffasevidencedbyadulyexecuted promissory note;
2. Thepromissorynotereads: "Makati, Philippines Dec. 30, 2014
For value received from plaintiff, defendant promises to pay plaintiff Ill million, twelve (12) months
b. When the defendant does not reply to a “request for admission”, it is

tantamount to an implied admission, hence, JOP can be had if there are not other
issues at hand.483
3. SJ:
a. Testimonial evidence is not required to prove the absence of any genuine
issue as to any material fact. This is shown by the pleadings, depositions and
from the above indicated date without necessity of demand. Signed Defendant. A copy of the
promissory note is attached as Annex “A.” Defendant, in his verified answer, alleged among others:
1. Defendant specifically denies the allegation in paragraphs 1 and 2 of the complaint, the truth
being defendant did not execute any promissory note in favor of plaintiff, or
2. Defendant has paid the Ill million claimed in the promissory note (Annex "A" of the
Complaint) as evidenced by an "Acknowledgment Receipt" duly executed by plaintiff on January 30,
2015 in Manila with his spouse signing as witness.
[] A copy of the "Acknowledgment Receipt" is attached as Annex "1" hereof. Plaintiff filed a
motion for judgment on the pleadings on the ground that defendant's answer failed to tender an issue
as the allegations therein on his defenses are sham for being inconsistent; hence, no defense at all.
Defendant filed an opposition claiming his answer tendered an issue. (2015) Is judgment on the
pleadings proper? A: NO, the judgment on the pleadings is not proper. Judgment on the pleading is
proper only when the answer fails to tender an issue, or otherwise admits the material
allegations of the adverse party’s pleading (Sec. 1, Rule 34). When it appears, however, that not all
the material allegations of the complaint were admitted in the answer, because some of them were
either denied or disputed, and the defendant has set up certain special defenses which, if proven,
would have the effect of nullifying plaintiff’s main cause of action, judgment on the pleadings cannot
be rendered (Philippine National bank v. Aznar, G.R. No. 17105, May 30, 2011). Clearly, since the
defendant’s verified Answer specifically denied the execution of the promissory note, or raised the
affirmative of payment, judgment on the pleading is not proper.
[] Q: Defendant filed a motion for summary judgment on the ground that there are no longer
any triable genuine issues of facts. Should the court grant defendant's motion for summary judgment?
(2015) A: NO, the court should not grant the motion for summary judgment because the defense of
payment is a genuine issue as to material fact that must be resolved by the court upon presentation
of evidence. *****For a summary judgment to be proper, the movant must establish two requisites:
(a) there must be no genuine issue as to any material fact, except for the amount of damages; and (b)
the party presenting the motion for summary judgment must be entitled to a judgment as a
matter of law. A genuine issue is an issue of fact which requires the presentation of evidence as
distinguished from an issue which is sham, fictitious, contrived or false claim. Relative thereto, when
the facts pleaded by the parties are disputed or contested, proceedings for a summary
judgment cannot take place of a trial. The evidence on record must be viewed in light most
favourable to the party opposing the motion who must be given the benefit of all favourable inferences
as can reasonably be drawn from the evidence (Smart Communications v. Aldecoa, G.R. No. 166330,
483
Q: Plaintiff files a request for admission and serves the same on Defendant who fails, within the
time prescribed by the rules, to answer the request. Suppose the request for admission asked for the
admission of the entire material allegations stated in the complaint, what should plaintiff do? (2012
BAR)
A: *****The plaintiff should file a Motion for Judgment on the Pleadings because the
failure of the defendant to answer a request for admission results to an implied admission of all
the matters which an admission is requested. Hence, a motion for judgment on the pleadings is the
appropriate remedy where the defendant is deemed to have admitted matters contained in the request
for admission by the plaintiff (Rule 34 in connection with Sec. 2, Rule 26).
admissions together with the affidavits.484

b. Summary judgment can be had if the defendant admits his debt although
he contests the amount.485
c. It is possible to have partial summary judgment, which is final and
appealable.486 However, another bar question says that partial summary judgments
484
Q: A brought an action for unlawful detainer against B in the Municipal Trial Court. B filed a
motion to dismiss on the ground of lack of cause of action [TOM: should be “failure to state
cause of action”] for failure to first refer the dispute to the Barangay Lupon. Acting on B's motion,
the case was dismissed. A files a petition for certiorari with the Regional Trial court assailing the
Municipal Trial Court’s dismissal order on the ground that B’s motion to dismiss is a prohibited
motion under the Revised Rules on Summary Procedure. A’s motion for summary Judgment was
granted by the Regional Trial Court but reversed by the Court of Appeals on the ground that A
made no effort to adduce testimonial evidence in addition to his affidavits to prove absence of
any genuine issue as to any material fact. Is the decision of the Court of Appeals correct? Explain.
Answer: No. because testimonial evidence is not required to prove the absence of any genuine
issue as to any material fact. This is shown by the pleadings, depositions and admissions together with
the affidavits. (Sec. 3 of Rule 34)
485
Q: Modesto sued Ernesto for a sum of money, claiming that the latter owed him PI-million,
evidenced by a promissory note, quoted and attached to the complaint. In his answer with
counterclaim, Ernesto alleged that Modesto coerced him into signing the promissory note, but
that it is Modesto who really owes him PI.5-million. Modesto filed an answer to Ernesto’s
counterclaim admitting that he owed Ernesto, but only in the amount of P0.5-million. At the
pretrial, Modesto marked and identified Ernesto’s promissory note. He also marked and
identified receipts covering payments he made to Ernesto, to the extent of P0.5-million, which
Ernesto did not dispute. After pre-trial, Modesto filed a motion for judgment on the pleadings,
while Ernesto filed a motion for summary judgment on his counterclaim. Resolve the two
motions with reasons. (5%) (2009 Bar Question) SUGGESTED ANSWER:
Modesto’s motion for judgment on the pleadings should be denied. While it is true that under
the actionable document rule, Ernesto’s failure to deny under oath the promissory note in his
answer amounted to an implied admission of its genuineness and due execution, his allegation
in his answer that he was coerced into signing the promissory note tendered an issue which should
be tried. The issue of coercion is not inconsistent with the due execution and genuineness of
the instrument. Thus, Ernesto’s failure to deny the genuineness of the promissory note cannot be
considered a waiver to raise the issue that he was coerced in signing the same. Said claim of
coercion may also be proved as an exception to the Parol Evidence Rule.
On the other hand, Ernesto’s motion for summary judgment may be granted. Modesto’s
answer to Ernesto’s counterclaim — that he owed the latter a sum less than what was claimed —
amounted to an admission of a material fact and if the amount thereof could summarily be
proved by affidavits, deposition, etc., without the need of going to trial, then no genuine issue
of fact exists.
ALTERNATIVE ANSWER: *****Modesto’s motion for judgment on the pleadings should
be denied because there is an issue of fact. While Ernesto did not specifically deny under oath the
promissory note attached to Modesto’s complaint as an actionable document, such non-denial will not
bar Ernesto’s evidence that Modesto coerced him into signing the promissory note. Lack of
consideration, as a defense, does not relate to the genuineness and due execution of the
promissory note.
486
Q: After joinder of issues, the plaintiff moved for partial summary judgment, specifically on two
of the five causes of action asserted in the complaint. Despite opposition by the defendant who
contended that the remedy of summary of judgment was not available because there were genuine
issues of fact which could not justifiably be resolved by affidavits and counter-affidavits, the court
are interlocutory, hence, not appealable, but could be subject to certiorari.487 TOM
agrees that it is interlocutory when the problem shows that the settlement of the
case is not yet final in character.488
rendered a partial summary of judgment as prayed for. The defendant moved for reconsideration ten
days after notice of the decision, but the motion was denied. In the same order of denial, the court set
for pre-trial conference the three other causes of action and the defendant’s counterclaims. Can the
defendant appeal the partial summary judgment without awaiting the judgment in the three remaining
causes of action? If he can, when? If he cannot, what is his remedy? Explain fully. (1987 Bar Question).
Answer:
*******The partial summary judgment is final and appealable without awaiting the
judgment in the three remaining causes of action, if the following requisites are present:
(1) The two causes of action are separate and independent causes of action and the
defendant’s counterclaim does not arise out of the transaction or occurrence which is the subject
matter of said causes of action. In such case, judgment may be rendered pursuant to the rule of
judgments at various stages (Sec. 5 of Rule 36).
(2) The affidavits, depositions and admissions submitted by the plaintiff show that, except as
to the amount of damages, there is no genuine issue as to any material fact and the plaintiff is
entitled to a judgment as a matter of law (Sec. 3 of Rule 34).
The defendant may appeal within the remaining period or six days from notice of the
decision, since nine days had elapsed when he moved for reconsideration ten days after notice
thereof.
Another Alternative Answer: The partial summary judgment is interlocutory and hence
not immediately appealable, if the three other causes of action are related to the two causes of
action subject of the partial summary judgment and the defendant’s counter claim arises out of the
transaction or occurrence which is the subject matter of said two causes of action. In such case, the
partial summary judgment does not fully adjudicate the case and a trial is necessary. (Sec. 4 of
Rule 34) Moreover, there may be genuine issue of fact that remain to be tried. (Guevarra vs. Court
of Appeals, 124 SCRA 297). The defendant may wait for the final judgment to be rendered on all the
causes of action and the counterclaim and appeal therefrom within fifteen days from notice thereof. In
the event the court orders execution of its partial summary judgment, the defendant may file a petition
for certiorari to set aside said order.
487
Q: After defendant has served and filed his answer to plaintiff s complaint for damages before the
proper Regional Trial Court, plaintiff served and filed a motion (with supporting affidavits) for a
summary judgment in his favor upon all of his claims. Defendant served and filed his opposition (with
supporting affidavits) to the motion. After due hearing, the court issued an order (1) stating that the
court has found no genuine issue as to any material fact and thus concluded that plaintiff is entitled to
judgment in his favor as a matter of law except as to the amount of damages recoverable, and (2)
accordingly ordering that plaintiff shall have judgment summarily against defendant for such amount as
may be found due plaintiff for damages, to be ascertained by trial on October 7, 2004, at 8:30 o’clock
in the morning. May defendant properly take an appeal from said order? Or, may defendant properly
challenge said order thru a special civil action for certiorari? Reason. (5%) (2004 Bar Question)
SUGGESTEDANSWER: No, plaintiff may not properly take an appeal from said order
because it is an interlocutory order, not a final and appealable order (Sec. 4 of Rule 35). It does not
dispose of the action or proceeding (Sec. I of Rule 39). Partial summary judgments are
interlocutory. There is still something to be done, which is the trial for the adjudication of damages
(Province ofPangasinan v. Court of Appeals, 220 SCRA 726 [1993]; Guevarra v. Court of Appeals, 209
Phil. 241 [1983d, but the defendant may properly challenge said order thru a special civil action for
certiorari. (Sec. 1 [c] and last par. of Rule 41)
488
In a civil action involving three separate causes of action, the court rendered summary judgment
on the first two causes of action and tried the third. After the period to appeal from the summary
3.15.6. Rendition of judgments and final orders (supra under 3.15.1)

1. Rendition of Judgment is the filing of the same with the clerk of court. Even
if the judgment has already been put in writing and signed, it is still subject to
amendment if it has not yet been filed with the clerk of court; and before its
filing,it does not yet constitute the real judgment of the court(Ago v. CA, G.R.
No. L-17898, October 31, 1962).
2. Promulgation: the process by which a decision is **published, officially
announced, made known to the public or delivered to the clerk of court for
filing, coupled with notice to the parties or their counsel.
**In civil cases, a judgment is rendered, while in criminal cases and election
cases, a judgment is rendered and promulgated.
[] Q: In an election contest between Mr. Palma and Mr. Monsod, the
COMELEC en banc unanimously resolved the dispute in favor of Monsod.
COMELEC Commissioner Garci participated at the deliberation of the said
resolution. However, when the resolution on the said dispute was promulgated
by COMELEC en banc, Commissioner Garci was no longer a member of the
COMELEC en banc. Mr. Palma contends that the decision of the
COMELEC en banc was null and void because Commissioner Garci, who
took part in the resolution of the case, was no longer connected with
COMELEC. Is Mr. Palma correct? A: No. A **decision becomes binding only
after it is validly promulgated. Consequently, if at the time of the promulgation of a
decision or resolution, a member of the collegiate court who had earlier signed or registered his vote
has vacated his office, his vote is automatically withdrawn or cancelled. The
Resolution, in this case, **remains valid because it is still supported by a
majority of the COMELEC en banc (Benwaren v. COMELEC, G.R. No.
169393, April 7, 2006).
3. Preparation of a judgment: A judgment or final order determining the merits
of the case shall be
a. in writing
b. personally and directly prepared by the judge,
c. ******stating clearly and distinctly the facts and the law on which it is
based,489
judgment expired, the court issued a writ of execution to enforce the same. Is the writ of execution
proper? (2011 BAR)
(A) No, being partial, the summary judgment is interlocutory and any appeal from it still has
to reckon with the final judgment.
(B) Yes since, assuming the judgment was not appealable, the defendant should have questioned it by
special civil action of certiorari.
(C) No, since the rules do not allow a partial summary judgment.
(D) No, since special reason is required for execution pending rendition of a final decision in the case.
489
Q: After plaintiff in an ordinary civil action before the ZZ Regional Trial Court has completed
presentation of his evidence, defendant without prior leave of court moved for dismissal of plaintiff s
d. signed by him, and

e. filed with the clerk of the court (Sec. 1, Rule 36).
**No requirement to state in its decision all the facts found in the records:
While it is required that decisions, no matter how concisely written, be distinctly
and clearly set forth the facts and the law upon which they are based (Naguiat v.
NLRC, G.R. No. 116123, March 13, 1997), the rule however, does not require
that the court shall state in its decision all the facts found in the records
(People v. Derpo, G.R. No. L-41040 & 43908-10, December 14, 1988). A decision
need not be a complete recital of the evidence presented. So long as the
factual and legal basis is distinctly and clearly set forth, the judgment is valid (Chan
v. CA, 457 SCRA 502).
*NB: A decision that does not clearly and distinctly state the facts and
the law on which it is based leaves the parties in the dark as to how it was
reached and is specially prejudicial to the losing party, who is unable to pinpoint
the possible errors of the court for review by a higher (tribunal) (Miguel v. JCT
Group, Inc., G.R. No. 157752, March 16, 2005).
4. Resolutions disposing of motion to dismiss: It is not only judgments which
must distinctly and clearly state the facts and the law upon which they are
based. Under Sec. 3 of Rule 16, it is required that the **resolutions disposing of
motion to dismiss shall state clearly and distinctly the reasons therefore.
5. Rendition of a judgment based on issues not raised
*GR: A judgment must conform to the pleading and the theory of the
action under which the case was tried. A judgment going outside the issues and
purporting to adjudicate something on which the parties were not heard is
invalid. Therefore where a court enters a judgment or awards relief beyond the
prayer of the complaint or the scope of its allegations the excessive relief is **not
merely irregular but is void for want of jurisdiction, and is open to collateral
attack.
**XPN: Such issues were tried with the express or implied consent of
the parties.
complaint for insufficiency of plaintiff s evidence. After due hearing of the motion and the opposition
thereto, the court issued an order, reading as follows: “The Court hereby grants defendant’s motion
to dismiss and accordingly orders the dismissal of plaintiff s complaint, with the costs taxed
against him. It is so ordered." Is the order of dismissal valid? May plaintiff properly take an appeal?
Reason. (5%) (2004 Bar Question) SUGGESTED ANSWER:
*****The order or decision is void because it does not state findings of fact and of law, as
required by Sec. 14, Article VIII of the Constitution and Sec. 1, Rule 36 of the Rules of Court.
******Being void, appeal is not available. The proper remedy is certiorari under Rule 65.
ANOTHER ANSWER: Either certiorari or ordinary appeal may be resorted to on the ground
that the judgment is void. Appeal, in fact, may be the more expedient remedy.
ALTERNATIVE ANSWER: Yes. The order of dismissal for insufficiency of the plaintiff’s
evidence is valid upon defendant’s motion to dismiss even without prior leave of court. (Sec. 1 of Rule
33). Yes, plaintiff may properly take an appeal because the dismissal of the complaint is a final and
appealable order. However, if the order of dismissal is reversed on appeal, the plaintiff is deemed to
have waived his right to present evidence. (Id.)
6. Person to decide a case

*GR: A case once raffled to a branch belongs to that branch unless re-
raffled or otherwise transferred to another branch in accordance with the
established procedure. When the Presiding Judge of that branch to which a case
has been raffled or assigned is transferred to another station, he leaves behind
all the cases he tried with the branch to which they belong. He does not take
these cases with him even if he tried them and the same were submitted to him
for decision. The judge who takes over this branch inherits all these cases and
assumes full responsibility for them. He may decide them as they are his cases.
**XPN: Any of the parties moves that his case be decided by the judge
who substantially heard the evidence and before whom the case was submitted
for decision (Valentin v. Sta. Maria, G.R. No. L-30158, January 17, 1974).
**NB: A decision penned by a judge after his retirement cannot be
validly promulgated and cannot acquire a binding effect. In like manner, a
decision penned by a judge during his incumbency cannot be validly
promulgated after his retirement (Nazareno v. CA, G.R. No. 111610, February
27, 2002).
*Judgment may be penned by a judge who did not hear the evidence: It is
not necessary that the judge who heard the evidence be the same judge
who shall pen the decision. The judge who originally tried the case may die,
resign, be disabled or transferred to another. In such an eventuality, another judge has
to continue and finish the trial.
7. When decision is binding on the parties: A judgment or order whether final
or interlocutory does **not bind the parties until and unless NOTICE
thereof is DULY SERVED on them by any of the modes prescribed by law. This
is so **even if the order or judgment has in fact been orally pronounced in
the presence of the parties or a draft thereof drawn up and signed and/or copy thereof somehow
read or acquired by any party.
8. LAW OF THE CASE: It is the opinion delivered on a FORMER
APPEAL. More specifically, it means that whatever is once irrevocably
established as the controlling legal rule or decision between the same parties
in the same case continues to be the law of the case, whether correct on general
principles or not, so long as the facts on which such decision was predicated
continue to be the facts of the case before the court (Azuela v. CA, G.R. No.
122880, April 12, 2006, citing Tigno v. Aquino, G.R. No. 129416, November 25,
2004).
**This rule does not apply to resolutions rendered in connection with the
case wherein no rationale has been expounded on the merits of that action.
9. Principle of STARE DECISIS ET NON QUIETA MOVERE: It holds that
a point of law, once established by the SC, will generally be followed by the
same court and by all courts of lower rank in subsequent cases involving a
similar legal issue. This proceeds from the legal principle that, in the absence of
powerful countervailing considerations, like cases ought to be decided
alike. It is founded on the necessity for securing certainty and stability in the
law and does not require identity of or privity of parties.
3.15.7. Entry of judgment and final order (cf. also supra under 3.15.1)
1. Entry of judgment: It refers to the physical act performed by the clerk of
court in entering the dispositive portion of the judgment in the book of entries
of judgment and after the same has become final and executory. The record
shall contain the dispositive portion of the judgment or final order and shall be
signed by the clerk of court, with a certificate by said clerk that the judgment
has already become final and executory (Sec. 2, Rule 36).
*If no appeal or motion for new trial or reconsideration is filed within
the time provided in the Rules, the judgment or final order shall forthwith be
entered by the clerk in the book of entries of judgments (Sec. 2, Rule 36).
2. There are some proceedings the filing of which is reckoned from the date
of the entry of judgment:****
a. The execution of a judgment by motion is within 5 years from the
entry of the judgment (Sec. 6, Rule 39);
b. The filing of a petition for relief must be filed not more than 60 days
from knowledge of the judgment and not more than 6 months from the entry
of the judgment or final order (Sec. 3, Rule 38).
3. Finality of judgment
a. Upon lapse of the reglementary period to appeal, with no appeal
perfected within such period, the decision becomes final and executory (Sec.
1, Rule 39; Banco de Brasil v. CA, G.R. Nos. 121576-78, June 16, 2000), and
b. Upon lapse of the reglementary period to file an MR, decision
rendered by the SC becomes final and executory. NB: The date of “entry of
judgments” is the date after the lapse of the period to appeal, when no appeal was
made.490
490
[] Bar 2000: James mortgaged his property to Peter. James failed to pay his obligation and Peter
filed an action for foreclosure of mortgage. After trial, the court issued an order granting Peter's
prayer for foreclosure of mortgage and ordering James to pay Peter the full amount of the mortgage
debt not later than 120 days from date of receipt of the order. James received the order on August
10, 1999. No other proceeding took place thereafter. On December 20, 1999, James tendered the full
amount adjudged by the court to Peter but the latter refused to accept it on the ground that the
amount was tendered beyond the 120-day period granted by the court. James filed a motion in the
same court praying that Peter be directed to receive the amount tendered by him on the ground
that the order does not comply with the provisions of Sec. 2, Rule 68 of the Rules of Court which
gives James 120 days from entry of judgment, and not from date of receipt of the order. The court
denied his motion on the ground that the order had already become final and can no longer be
amended to conform with Sec. 2, Rule 68. Aggrieved, James files a petition for certiorari against the
court and Peter. Will the petition for certiorari prosper? Explain.
A: Yes. The **court erred in issuing the order. The court should have rendered a judgment which is
appealable. Since no appeal was taken, the judgment became final on August 25, 1999 which is
the date of the entry of judgment. Hence, James had up to December 24, 1999 within which to pay
4. Court to amend a judgment after the same has become executory

******GR: No, when a judgment is final and executory, it becomes
immutable and unalterable (RULE OF IMMUTABILITY). [Final judgment
rule?]
*XPNs: Courts may amend a judgment even if it has become executory in
the following instances:
a. To correct clerical errors or to make nunc pro tunc entries
(Philippine Economic Zone Authority v. Borreta, G.R. No. 142669, March 15,
2006); A clerical error is one which does not involve an exercise of judicial
functions.
b. To clarify an ambiguity which is borne out by and justifiable in the context of
the decision; NB: The remedy is to file a motion for clarificatory judgment.
c. **Judgments for support, which can always be amended from time to
time;
d. Void judgment.
5. Amended or clarified judgment vs. Supplemental decision
Amended or Clarified Judgment Supplemental Decision
It is an entirely new decision and supersedes the original Does not take the place of nor
judgment. extinguish the original judgment.
Court makes a thorough study of the original judgment and Serves to bolster or add to the
renders the amended and clarified judgment only after considering original judgment.
all the factual and legal issues.
6. Effect of amendment of judgment: The **date of the amendment should be

considered as the date of the decision for the computation of the period to
perfect the appeal.
7. Collateral attack on a Judgment
*GR: The validity of a judgment or order of a court cannot be collaterally
attacked.
**XPNs: It may be attacked collaterally on the following grounds:
a. Lack of jurisdiction; or
b. The irregularity of its entry is apparent from the face of the record.
8. Effect of void judgments (DOCTRINE OF TOTAL NULLITY): A void
judgment is in legal terms, a judgment with no effect. By it no rights are
divested, no rights can be obtained. Being worthless in itself, all proceeding
founded upon it are equally worthless. It neither binds nor bars any one. All
acts performed under it and all claims flowing out of it are void.
[] Q: Jayson, a career service officer, was illegally dismissed from his
position. Thus, Jayson filed a complaint for illegal dismissal with the Career
Executive Service Board (CESB). While the said complaint was pending
the amount due. The court gravely abused its discretion amounting to lack or excess of jurisdiction in
denying James’ motion praying that Peter be directed to receive the amount tendered.
before the CESB, Jayson filed a petition for quo warranto with the CA praying
that he be reinstated to his former post. The CESB rendered a decision
finding that Jayson was illegally dismissed. The CA found that Jayson
resigned and was not illegally dismissed. Both decisions became final for
failure to appeal the same. Are the two decisions immutable and unalterable in
view of their finality? A: No, neither decision is immutable nor unalterable.
******As a rule, a decision that has acquired finality becomes immutable and
unalterable. A final judgment may no longer be modified in any respect,
even if the modification is meant to correct erroneous conclusions of fact
and law; and whether it be made by the court that rendered it or by the highest
court in the land. In this case, however, **to hold that both decisions are
immutable and unalterable would cause confusion and uncertainty
(Collantes v. CA, G.R. No. 169604, March 6, 2007).
9. Bar 2007: Effect of a judgment or final order of a tribunal of a foreign country
having jurisdiction to render the judgment or final order:****
a. If the judgment is on a specific thing, the judgment is conclusive upon the
title to the thing;
b. If the judgment is against a person, the judgment is presumptive evidence of
a right as between the parties and their successor in interest by a subsequent title.
10. Grounds in assailing the judgment or final order of a foreign country****
a. Evidence of want of jurisdiction;
b. Want of notice to the party;
c. Collusion;
d. Fraud; or
e. Clear mistake of fact or law.
———————————————————————————————
3.16. Post-judgment remedies
3.16.1. Motion for new trial (MNT) or reconsideration (MR) [Rule 37] 360
a) Grounds for MR & MNT****** 362
b) When to file 363
c) Denial of the motion; effect 365
d) Grant of the motion; effect 366
e) Remedy when motion is denied, fresh 15-day period rule 366
MR & MNT IN LOWER COURTS vs. CA 367
3.16.2. Appeals in general 370
a) Judgments and final orders subject to appeal 371
b) Matters not appealable <Rule 41> 372
c) Remedy against judgments and orders which are not appealable: Rule 65 373
d) Modes of appeal [Sec 2, Rule 41] 374
i. Ordinary appeal 374
ii. Petition for review 374
iii. Petition for review on certiorari or Appeal by Certiorari 375
Petition for Review on Certiorari under Rule 45 vs. Certiorari under Rule 65 376
e) Issues to be raised on appeal 378
f) Period of appeal 381
g) Perfection of appeal 382
h) Appeal from judgments or final orders of the MTC 384
i) Appeal from judgments or final orders of the RTC 388
j) Appeal from judgments or final orders of the CA 391
Procedure in the Court of Appeals 400
1. RULE 44. Ordinary Appealed Cases 404
2. RULE 46. Original Cases. 404
3. RULE 48. Preliminary Conference 406
4. RULE 49. Oral Argument 408
5. RULE 50. Dismissal of Appeal 408
6. RULE 51. Judgment 409
7. RULE 54. Internal Business 410
8. RULE 55. Publications of Judgments and Final Resolutions 412
Procedure In The Supreme Court 413
1. Rule 45, supra. 413
2. RULE 56 A. Original Cases 413
2. RULE 56 B. Appealed Cases 413

k) Appeal from judgments or final orders of the CTA 414
l) Review of final judgments or final orders of the Comelec & COA 415
m) Review of final judgments or final orders of the Ombudsman 416
n) Review of final judgments or final orders of the NLRC 416
o) Review of final judgments or final orders of quasi-judicial agencies 417
3.16.3. Relief from judgments, orders and other proceedings [Rule 38] 417
3.16.4. Annulment of judgments or final orders and resolutions [Rule 47] 421
a) Grounds for annulment 426
b) Period to file action [Sec 3] 428
c) Effects of judgment of annulment 430
3.16.5. Collateral attack of judgments 431
———————————————————————————————
3.16. Post-judgment remedies

1. Before a judgment becomes final and executory, the aggrieved party or
losing party may avail of the following remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal.
2. After the judgment becomes executory, the aggrieved party or losing party may
avail of the following:
a. Petition for relief from judgment;
b. Action to annul judgment;
c. Certiorari; and
d. Collateral attack of a judgment.
APPLICABLE RULES (to give you an overall perspective)

1. Rules Related to Post Judgment Remedies & Appeals (lower courts)
RULE 37. New Trial or Reconsideration (cf. Rules 52 & 53)
RULE 38. Relief from Judgments, Orders or Other Proceedings
RULE 40. Appeal From Municipal Trial Courts to the Regional Trial Courts
RULE 41. Appeal From The Regional Trial Courts
RULE 42 Petition for Review From the Regional Trial Courts to the Court
of Appeals
RULE 43. Appeals From Quasi-Judicial Agencies to the Court of Appeals
2. Procedure in the Court of Appeals
RULE 44. Ordinary Appealed Cases
RULE 46. Original Cases
RULE 47. Annulment of Judgments of Final Orders and Resolutions
RULE 48. Preliminary Conference
RULE 49. Oral Argument

RULE 50. Dismissal of Appeal
RULE 51. Judgment
RULE 52. Motion for Reconsideration
RULE 53. New Trial
RULE 54. Internal Business
RULE 55. Publications of Judgments and Final Resolutions
3. Procedure In The Supreme Court
RULE 45. Appeal by Certiorari to the Supreme Court
RULE 56. A. Original Cases; B. Appealed Cases
3.16.1. Motion for new trial (MNT) or reconsideration (MR)491 [Rule 37]
1. MR: A motion for reconsideration under Rule 37 is one that is directed
against a judgment or a final order, and not the motion for reconsideration of
an interlocutory order (Riano, 2014). A motion for reconsideration only seeks a
reconsideration of the judgment or final order based on the same issues,
contentions, and evidence. It is not putting forward a new issue, or
presenting new evidence, or changing the theory of the case, but is only
seeking a reconsideration of the judgment or final order based on the same
issues, contentions, and evidence either because (see three grounds, infra)
*Purpose of an MR: to request the court or the quasi- judicial body to take
a second look at its earlier judgment and correct any errors it may have
committed therein (Reyes v. Pearl Bank Securities, G.R. No. 171435, July 30,
2008).
*When partial reconsideration allowed: If the court finds that a motion
affects the issues of the case as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it, the order may grant a
reconsideration as to such issues if severable without interfering with the judgment
or final order upon the rest (Sec. 7, Rule 37).
2. MNT: It is a motion for the trial court to set aside the judgment or final order
and grant a new trial (Riano, 2011).
491
Under Rule 52, a Second Motion for Reconsideration is a prohibited pleading. However, where may
such Motion be allowed? (2012 BAR)
a. theSandiganbayan;
b. theOfficeofthePresident;
c. the Supreme Court;
d. Noneoftheabove.
[] When may a party file a second motion for reconsideration of a final judgment or final order?
(2013 BAR)
(A) At anytime within 15 days from notice of denial of the first motion for reconsideration.
(B) Only in the presence of extraordinarily persuasive reasons and only after obtaining express
leave from the ruling court.
(C) A party is not allowed to fi le a second motion for reconsideration of a final judgment or final order.
(D) A party is allowed as a matter of right to fi le a second motion for reconsideration of a judgment or final order.
*Motion for New Trial vs. Motion for Reopening of the Trial
Motion for New Trial Motion for Reopening of Trial
A motion must be filed The judge may act motu propio

Proper only after May properly be presented only after either or both parties have
promulgation of judgment. formally offered and closed their evidence before judgment.
Based upon specific grounds Controlled by no other than the paramount interest of justice,
mentioned in Sec. 37 in civil resting entirely on the sound discretion of the court, the exercise of such
cases and Sec. 121 in criminal shall not be reviewable on appeal UNLESS a clear abuse
cases thereof is shown.
a) Grounds for MR & MNT******

1. Grounds for MR (DEL)
a. The damages awarded are excessive;
b. The evidence is insufficient to satisfy the decision or final order; or
c. The decision or final order is contrary to law (Sec. 1, Rule 37).
2. Grounds for MNT:
a. FAME: Extrinsic492 fraud, accident, mistake or excusable negligence
(FAME) which ordinary prudence could not have guarded against and by reason
of which the rights of the aggrieved party were impaired; or
b. NDE: Newly discovered evidence, which could not with reasonable
diligence, have been discovered and produced at the trial, and which if presented,
would PROBABLY ALTER the result (Sec. 1, Rule 37). Requisites of newly
discovered evidence (BERRY RULE: originated in the case of Berry v. State of
Georgia)
i. The evidence was discovered after trial;
ii. Such evidence could not have been discovered and produced at
the trial with reasonable diligence; and
iii. Such evidence is material, not merely cumulative,
corroborative or impeaching, and is of such weight that if admitted would
probably change the judgment (CIR v. A. Soriano Corporation, G.R. No.
113703, January 31, 1997).
**Newly discovered evidence need NOT be newly created
evidence: It may and does commonly refer to evidence already in existence prior
or during trial but which could not have been secured and presented during
the trial despite reasonable diligence on the part of the litigant (Tumang v. CA,
492
Fraud as a ground for new trial must be extrinsic as distinguished from intrinsic. Which of the
following constitutes extrinsic fraud? (2011 BAR)
(A) Collusive suppression by plaintiff’s counsel of a material evidence vital to his cause of
action.
(B) Use of perjured testimony at the trial.
(C) The defendant’s fraudulent representation that caused damage to the plaintiff.
(D) Use of falsified documents during the trial.
G.R. Nos. 82346-47, April 17, 1989).

*Newly discovered evidence v. Forgotten evidence
Newly Discovered Evidence Forgotten Evidence
Evidence was not available to a party Evidence was already available to a party and was not
during a trial, and was discovered presented through inadvertence or negligence of the
only thereafter. counsel; it is not a ground for new trial.
3. Requisites for MR:

a. They shall be in writing, stating the ground or grounds therefore, a
written notice of which shall be served by the movant on the adverse party
(Sec. 2, Rule 37);
b. Must point out SPECIFICALLY the findings or conclusions of the
judgment or final order which are not supported by the evidence or which are
contrary to law making express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be CONTRARY to such
findings or conclusions.
c. Express reference to testimonial or documentary evidence or to
provisions of law.
4. Requisites for MNT:
a. (same as MR) They shall be in writing, stating the ground or grounds
therefore, a written notice of which shall be served by the movant on the
adverse party (Sec. 2, Rule 37)]
b. Depending on the ground relied upon:
i. If due to FAME: **Affidavit of merit setting forth the particular
facts claimed to constitute a meritorious cause of action;
ii. In case of NDE: shall be supported by AFFIDAVITS OF THE
WITNESSES by whom such evidence is expected to be given, or by DULY
AUTHENTICATED DOCUMENTS which are proposed to be introduced
in evidence.
******NB: The requirements are mandatory and non-compliance
therewith is fatal and renders the motion pro forma493 or a mere scrap of
paper and will NOT TOLL the reglementary period for appeal.
5. Common matters to MR & MNT
a. Both must be resolved within 30 days from the time it is submitted for
resolution;
b. Both are prohibited motions under Summary Procedure and Small
Claims
493
A motion for reconsideration of a decision is pro forma when (2011 BAR)
(A) it does not specify the defects in the judgment.
(B) it is a second motion for reconsideration with an alternative prayer for new trial.
(C) it reiterates the issues already passed upon but invites a second look at the evidence and the arguments.
(D) its arguments in support of the alleged errors are grossly erroneous.
b) When to file
1. Within the period for taking an appeal [Sec 1], i.e.
a. within 15 days after notice to the appellant of the judgment or final order
appealed from. 494
b. Where a record on appeal is required the appellant shall file a notice of
appeal and a record on appeal within 30 days after notice of the judgment or final
order (Sec. 1, Rule 37).
c. **The filing of a timely motion interrupts the period to appeal (Sec. 2,
Rule 40; Sec. 3, Rule 41).
******No motion for extension of time to file a Motion for New Trial or
Motion for Reconsideration shall be allowed (Sec. 2, Rule 40).495 NB: Only SC can
allow extension of time to file MR.496
494
BAR 2016: Q: Miguel filed a Complaint for damages against Jose, who denied liability and filed a
Motion to Dismiss on the ground of failure to state a cause of action. In an Order received by Jose on
January 5, 2015, the trial court denied the Motion to Dismiss. On February 4, 2015, Jose sought
reconsideration of that Order through a Motion for Reconsideration. Miguel opposed the Motion for
Reconsideration on the ground that it was filed out of time. Jose countered that the 15-day rule under
Section 1 of Rule 52 does not apply where the Order sought to be reconsidered is an interlocutory
order that does not attain finality. Is Jose correct? Explain.
SUGGESTED ANSWER: Yes, Jose is correct. The 15-day period to file a motion for
reconsideration under Section 1 of Rule 52 refers to a motion for reconsideration of a judgment or
final resolution or order. Here what is involved is an order denying a motion to dismiss, which is
not a final order as it does not terminate the case. The order is simply an interlocutory order which
may be reconsidered by the trial court at any time during the pendency of the case. [See Rasdas
v. Estenor, 13 Dec 2005]. It should also be noted that Miguel did not file a motion to declare Jose in
default. (Jurist Review Center, Inc.)
495
Q: The defendant in a civil action received a note of the judgment of the Municipal Trial Court on
10 December. (1991 Bar Question). Can he validly move for extension-of the period for filing a
motion for reconsideration of the decision in view of the Christmas holidays? Answer:
No. a motion for extension of time to file a motion for reconsideration is not allowed.
(Habaluyas Ent v. Japson 142 SCRA 208)
[] In this case, when will the appeal be deemed perfected? Answer: The appeal will be deemed
perfected upon the expiration of the last day to appeal by any party. (Sec. 23 of Interim Rules)
[] TOM—remember this rule: 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. But as to the extension of time to file the required pleading: it is counted from the
expiration of the period, regardless of the fact that said date is a Saturday, Sunday, or legal holiday.
Since this is not an extension, the appeal is deemed perfected on the first working day after
December 25.
496
(1988 Bar Question) a) The Regional Trial Court of Manila rendered a judgment for the plaintiff
Antonio Santos and against defendant Benjamin Carandang. Defendant Benjamin Carandang
received the decision on July 15, 1988. On July 25, 1988, Benjamin filed a Motion for Extension
of Time for ten (10) days from July 30, 1988, within which to file a motion for reconsideration. The
Court failed to act on the motion for extension but Benjamin filed on August 5, 1988 his Motion
For Reconsideration within the ten-day extension prayed for. Antonio Santos, on August 15, 1988,
filed a Motion for the Issuance of a Writ of Execution alleging that the judgment had already
2. Can there be a second motion?

a. MR: *GR: Single motion rule; No party shall be allowed a second motion
for reconsideration of a judgment or final order (Sec. 5, Rule 37).
**XPN: The SC may allow a second MR in the higher interest of
justice by the Court en banc upon a vote of at least 2/3 of its actual
membership. There is reconsideration “in the higher interest of justice” when the
assailed decision is not only legally erroneous, but is likewise patently unjust
and potentially capable of causing unwarranted and irremediable injury or
damage to the parties. A second motion for reconsideration can only be
entertained before the ruling sought to be reconsidered becomes final by
operation of law or by the Court’s declaration. In the Division, a vote of three
Members shall be required to elevate a second motion for reconsideration
to the Court En Banc (Sec. 3, Rule 15, A.M. No. 10-4-20-SC).
b. MNT: Second motion may be allowed so long as based on grounds
not existing or available at the time the first motion was made (Sec. 5, Rule
37).
3. Remedy of denied: **appeal from the judgment or final order, not the order
of denial of MR of MNT, which is not appealable (Sec. 9, Rule 37).
c) Denial of the motion; effect

1. Section 9. Remedy against order denying a motion for new trial or reconsideration. — An
ORDER denying a motion for new trial or reconsideration is NOT
APPEALED, the remedy being an APPEAL FROM THE JUDGMENT OR
FINAL ORDER. (n)
****IOW, The remedy from the denial of a motion for reconsideration is an
appeal of the judgment or final order itself.
2. The movant has a fresh period of fifteen days from receipt or notice of the
order denying or dismissing the motion for reconsideration within which to file a
notice of appeal. It is no longer assailable by certiorari (Sec. 9, Rule 37, as
amended by A.M. No. 07-7-12-SC).
d) Grant of the motion; effect

1. Effect if a MR is granted: The court may amend such judgment or final order
accordingly (Sec. 3, Rule 37). The amended judgment is in the nature of a new
judgment which supersedes the original judgment, and is **not a mere
supplemental decision (Esquivel v. Alegre, G.R. No. 79425, April 17, 1989).
2. Effect if the MNT is granted: If a new trial is granted in accordance with the
provisions of the Rules [Sec 6]
a. the original judgment or final order shall be VACATED, and
become final and executory. Rule on the Motion with reasons. ***** Motion for execution is
granted. A motion for extension of time within which to file a motion for reconsideration is not
allowed, except in the Supreme Court. (Habaluyas Enterprises, Inc. vs. Japson, 142 SCRA 208).
Hence, the decision become final and executory on July 30, 1988.
b. the action shall stand for TRIAL DE NOVO; but the recorded
evidence taken upon the former trial, insofar as the same is material and competent to
establish the issues, shall be used at the new trial without retaking the same.
3. Effect of an order reversing the grant of a new trial: Legally speaking, the
effect of the order withdrawing the grant of new trial is that the original
judgment shall be deemed as having been **REPROMULGATED. In other
words, since the original judgment had already been vacated, the reconsideration of the
grant of new trial does not in turn vacate the said grant, although the original
judgment is given a new life (Pineda v. CA, G.R. No. L-38196, July 22, 1975).
4. Section 7. Partial new trial or reconsideration. — If the grounds for a motion
under this Rule appear to the court to affect the issues as to only a part, or less
than all of the matter in controversy, or only one, or less than all, of the parties to
it, the court may order a new trial or grant reconsideration as to such issues if
severable without interfering with the judgment or final order upon the rest. (6a)
5. Section 8. Effect of order for partial new trial. — When less than all of the
issues are ordered retried, the court may either
a. ENTER a judgment or final order as to the rest, or
b. STAY the enforcement of such judgment or final order until after the new
trial. (7a)
e) Remedy when motion is denied, fresh 15-day period rule

1. FRESH PERIOD (FP) or NEYPES RULE: in order to STANDARDIZE the
period to file appeal, and to afford litigants fair opportunity to appeal their cases, a
FRESH PERIOD of 15 days to file an appeal is given/counted from the
receipt of an order denying an M/R or MNT [(Neypes v. CA, G.R. No. 141524,
September 14, 2005].
[] The raison d’être for the "fresh period rule" is to standardize the appeal
period provided in the Rules and do away with the confusion as to when the
15-day appeal period should be counted. This is intended to make the appeal
period uniform.
*Procedural laws may be given retroactive effect to actions pending and
undetermined at the time of their passage, there being no vested rights in the rules
of procedure (Fil-Estate Properties, Inc. v. Homena-Valencia, G.R. No. 173942,
June 25, 2008).
2. APPLICABILITY of the FP rule:497
497
LPS: In Panolino v. Tajala, G.R. No. 183616, 29 June 2010 the court held that: "the decision in
Neypes, the fresh period rule shall apply to Rule 40 (appeals from the Municipal Trial Courts to the
Regional Trial Courts); Rule 41 (appeals from the Regional Trial Courts to the Court of Appeals or
Supreme Court); Rule 42 (appeals from the Regional Trial Courts to the Court of Appeals); Rule 43
(appeals from quasi-judicial agencies to the Court of Appeals); and Rule 45 (appeals by certiorari to the
Supreme Court). Obviously, these Rules cover judicial proceedings under the 1997 Rules of Civil
Procedure." TOM: Hence, administrative cases are not covered.
a. Rule 40: MTC renders a decision;

b. Rule 41: Appeals from RTC; RTC’s decision under its original JN;498
c. Rule 42: RTC’s decision under its appellate JN; (P4R from RTC to CA)
d. Rule 43: Appeals from Quasi-judicial agencies to CA;
e. Rule 45: Appeal by certiorari to SC.
f. Rule 65: petition for certioriari, prohibition and mandamus.
g. Criminal proceedings: because there is a similar period to file appeal
as it is in civil proceedings [Yu v. Tatad 9 Feb 2011].499 EG: Rule 42 and Rule 45
498
Q: By sheer coincidence, Atty. Lopez was on the same day, June 30, 1991, served with adverse
decisions of the Court of Appeals and the Regional Trial Court. In each case, he filed a motion for
reconsideration simultaneously on July 10. 1991. He received notices of the denial of his two
motions for reconsideration on August 15, 1991.
If Atty. Lopez decides to appeal in each of the two cases: (1992 Bar Question) (a) What mode
of appeal should he pursue in each case?Suggested Answer:
1. From the Court of Appeals to Supreme Court - appeal by certiorari under Rule 45.
2. From the RTC to CA: ordinary appeal on questions of fact and law.
3. From the Regional Trial Court to Supreme Court - appeal by certiorari on questions of law
only.
(b) How would he perfect each appeal? Suggested Answer:
1. From Court of Appeals to Supreme Court , by filing a petition for review on certiorari
with the Supreme Court and serving a copy on the Court of Appeals and the adverse party.
2. From Regional Trial Court to Court of Appeals, by filing a notice of appeal with Regional
Trial Court and serving a copy on the adverse party.
3. From Regional Trial Court to Supreme Court, by filing a petition for review on certiorari
with Supreme. Court and serving a copy on the lower court and the adverse party.
(c) Within what time should each appeal be perfected? Suggested Answer:
1. From Court of Appeals to Supreme Court, on or before August 30, 1991, or fifteen
days from notice of the denial of the motion for reconsideration. (Sec. 1 of Rule 45)
2. From Regional Trial Court to Court of Appeals, on or before August 21, 1991, or the
remaining period of 6 days counted from notice of denial, since from June 30 to July 10, nine days
had elapsed. (De Las Alas vs. Court of Appeals, 83 SCRA 200) [TOM thinks the fresh period rule
applies to it also, hence, up to August 30]
3. From Regional Trial Court to Supreme Court, on or before August 30. 1991, as in appeal
from Court of Appeals to Supreme Court. (RA 5440)
499
[] The Court held in the case of Yu v. Samson-Tatad, G.R. No. 170979, February 9, 2011 that the
pronouncement of a “fresh period” to appeal should equally apply to the period for appeal in criminal
cases under Sec. 6 of Rule 122, for the following reasons:
i. BP 129, as amended, the substantive law on which the Rules of Court is based, makes no
distinction between the periods to appeal in a civil case and in a criminal case.
ii. The provisions of Sec. 3 of Rule 41 of the 1997 Rules of Civil Procedure and Sec. 6 of Rule
122 of the Revised Rules of Criminal Procedure mean exactly the same. There is no substantial
difference between the two provisions insofar as legal results are concerned – the appeal period
stops running upon the filing of a motion for new trial or reconsideration and starts to run again
upon receipt of the order denying said motion for new trial or reconsideration. It was this situation that
Neypes addressed in civil cases. No reason exists why this situation in criminal cases cannot be
similarly addressed.
While the Court did not consider in Neypes the ordinary appeal period in criminal cases under
Sec. 6, Rule 122 of the Revised Rules of Criminal Procedure since it involved a purely civil case, it did
include Rule 42 of the 1997 Rules of Civil Procedure on petitions for review from the RTCs to the CA
are equally applicable to criminal cases.

3. Why is it NOT applicable to the following:
a. Rule 64 in relation to Rule 65. Note, however that the Neypes ruling, in
effect, applies to Rule 65.500
b. COA & Comelec decisions? Because they are filed under Rule 64 by way
of Rule 65, hence, the same is not an mode of appeal.
c. Administrative appeals? Because the FP Rule applies only to a judicial
appeal [Sn Lorenzo v. Bayan].
4. Can the FP rule be give retroactive effect? Yes, because there are not vested
rights under the Rules of procedure.
*GR: Laws are not given retroactive effect
*XPN: when they are procedural in character
*XPN in Crim Pro: when they are favourable to the accused
*XPN to XPN: when it’s an ex post facto law, it cannot be given retroactive
effect.
5. Compare this with: Extending the period of appeal: The period of appeal may
be extended under the sound discretion of the court. However, the **mere filing
of the motion for extension of time to perfect the appeal does not suspend
the running of the reglementary period.
*If the extension of the period to appeal is granted, and the notice thereof is
served after the expiration of the period to appeal, the extension must be
computed from the date of notice. ***If no action is taken on the motion for extension,
or if it is denied after the lapse of the period to appeal, the right to appeal is lost.
***Even if the appeal was filed out of time, the court still has jurisdiction to
admit and give due course to it, provided there are justifiable reasons.
*Instances where extension of time is allowed
a. Under Rule 42: The court may grant an additional period of 15 days
provided the extension is sought:
i. Upon proper motion; and
ii. Upon payment of the full amount of the docket and other lawful
fees before the expiration of the reglementary period.
iii. No further extension shall be granted except for the most
compelling reason and in no case to exceed 15) days
b. Under Rule 45: The SC may for justifiable reason grant an extension of
30 days only within which to file the petition provided:
i. There is a motion for extension of time duly filed and served;
and Rule 45 of the 1997 Rules of Civil Procedure governing appeals by certiorari to this Court, both of
which also apply to appeals in criminal cases, as provided by Sec. 3 of Rule 122 of the Revised Rules of
Criminal Procedure.
500
LPS: Sec. 3 of Rule 64 expressly provides that in case of the denial of an MR, the petition must be
filed during the remaining period. [But] in Sec. 4 Rule 65, the petition must be filed (in case of an
MR/MT) 60 days from notice of its denial not from the original decision. TOM: hence, in effect, the
Neypes ruling applies to Rule 65, but not to Rule 64.
ii. There is full payment of the docket and other lawful fees and the
deposit for costs; and
iii. The motion is filed and served and the payment is made before the
expiration of the reglementary period (Sec. 2, Rule 45).
6. Effect of Judgment on those who failed to appeal
a. As to affirmative relief – an appellee who has himself not appealed may
not obtain from the appellate court any affirmative relief other than what was
granted in the decision of the lower court
b. As to reversal of judgment
*GR: Binding only on the parties in the appealed case and does not
affect or inure to the benefit of those who did not join or were not made parties
to the appeal
*XPN: Where the rights of the parties appealing are so
interwoven and dependent on each other as to be inseparable, in which case a
reversal as to one operates as a reversal to all.
MR & MNT IN LOWER COURTS vs. CA

1. MR in lower courts vs. CA RULE 52. Motion for Reconsideration
MR IN LOWER COURTS [Rule 37] MR IN THE CA [Rule 52]
Grounds (EIC): a. The damages awarded are Grounds not specified.
excessive; b. The evidence is insufficient
to satisfy the decision or final order; or c. The
decision or final order is contrary to law (Sec.
1)
Within the period for taking an appeal (15 MR of a judgment or final resolution within fifteen (15)
days from notice) days from notice thereof, with proof of service on the
adverse party [Sec 1]
No party shall be allowed a second No second motion for reconsideration of a
motion for reconsideration of a judgment judgment or final resolution by the same party shall be
or final order [Sec 5] entertained [Sec 2]
It shall be resolved within 30 days from It shall be resolved within ninety (90) days from the
the time it is submitted for resolution date when the court declares it submitted for resolution
[Sec 3]
Effect of a pro forma MR or MNT: it shall The pendency of an MR filed on time and by the proper
NOT TOLL the reglementary period of party shall stay the execution of the judgment or final
appeal. resolution sought to be reconsidered unless the court, for
good reasons, shall otherwise direct.[Sec 4]
2. MNT in lower courts vs. CA

MNT in lower courts [Rule MNT in the CA [Rule 53]
37]
Within the period for taking an appeal Period. At any time after the appeal from the lower court has been
(15 days from notice) perfected and before the CA loses jurisdiction over the case [Sec 1]
MNT in lower courts [Rule MNT in the CA [Rule 53]

37]
Grounds: FAME & NDE (Sec 1; a party may file a MNT on the ground of newly discovered
Note that in the CA, it is only NDE). evidence which could not have been discovered prior to the trial in
the court below by the exercise of due diligence and which is
of such a character as would probably change the result. [Sec
1]
If due to FAME: supported by The motion shall be accompanied by affidavits showing
affidavit of merits; If due to NDE: the facts constituting the grounds therefor and the NDE
supported by affidavits of the [Sec 1]
witnesses or by duly authenticated
documents
A motion for new trial shall be CA shall consider the new evidence together with that
proved in the manner provided for adduced at the trial below, and may grant or refuse a new
proof of motion. The trial court may trial, or may make such order, with notice to both parties, as
SET ASIDE the judgment or final to the taking of further testimony, either orally in court, or by
order and grant a new trial, upon depositions, or render such other judgment as ought to be
such terms as may be just, or may rendered upon such terms as it may deem just. [Sec 2.
DENY the motion. Hearing and Order]
It shall be resolved WITHIN THIRTY MNT shall be resolved within ninety (90) days from the
(30) DAYS FROM THE TIME IT date when the court declares it submitted for resolution [Sec
IS SUBMITTED for resolution 3]
*Procedure of MNT in the CA: Unless the court otherwise directs, the procedure
in the new trial shall be the same as that granted by a RTC [Sec 4]
———————————————————————————————
3.16.2. Appeals in general

1. Appeal: the elevation by an aggrieved party of any decision, order or award of a
lower body to a higher body, by means of a document which includes the
assignment of errors, memorandum of arguments in support thereof, and the
reliefs prayed for (Technogas Philippines Manufacturing Corporation v. Clave,
08635-SP, May 31, 1979).
2. Right to appeal:501 *****It is not a constitutional or a natural right (Canton v.
City of Cebu, G.R. No. 152898, February 12, 2007). The right to appeal is not
part of due process but a mere STATUTORY PRIVILEGE that has to be
exercised only in the manner and in accordance with the provisions of law
(Stolt-Nielsen v. NLRC, G.R. No. 147623, December 13, 2005).
501
Bar 1993: [The defendant was not accorded due process of law when he lost his right to appeal due
to the actions of “Atty. Palma" who was not a lawyer]: While a client is generally bound by the
action of his counsel, even by the attorney’s mistake or negligence, this rule will not apply where
the lawyer turned out to be fake. [Telan vs. Court of Appeals, 202 SCRA 534)
3. The trial court loses jurisdiction502 after perfection of an appeal; hence, it can
no longer entertain a motion for reconsideration.
4. Basic guidelines regarding appeal

a. GR: No trial de novo (starting from the beginning) shall be made. The
appellate courts must decide the case on the basis of the record.
b. XPNs:
i. When the proceedings were not duly recorded as when there was
absence of a qualified stenographer (Sec. 22(d), BP 129; Rule 21(d), Interim
Rules);
ii. Instances when the CA may act as a trial court.
iii. There can be no new parties;
iv. There can be no change of theory (Naval v. CA, G.R. No.
167412, February 22, 2006);
v. There can be no new matters (Ondap v. Aubga, G.R. No. L-
24392, February 28, 1979);
vi. There can be amendments of pleadings to conform to the
evidence submitted before the trial court (Dayao v. Shel, G.R. No. L-32475, April
30, 1980);
vii. The liability of solidarity defendant who did not appeal is not
affected by appeal of solidarity debtor (Mun. of Orion v. Concha, G.R. No.
26671, September 17, 1927);
viii. Appeal by guarantor does not inure to the principal (Luzon
Metal v. Manila Underwriter, G.R. No. L-27863, August 29, 1969);
ix. In ejectment cases, the RTC cannot award to the appellant on his
counterclaim more than the amount of damages beyond the jurisdiction of
the MTC (Agustin v. Bataclan, 135 SCRA 342);
x. The appellate court cannot dismiss the appealed case for failure
to prosecute because the case must be decided on the basis of the record
(Rule 21, Interim Rules).
a) Judgments and final orders subject to appeal

1. Judgment and final orders subject to appeal: An appeal may be taken only from
judgments or final orders that completely dispose of the case, or of a
particular matter therein when declared by the Rules of Court to be appealable
502
Q: TRUE or FALSE. The filing of a motion for the reconsideration of the trial court’s decision
results in the abandonment of a perfected appeal. (2009 Bar Question) SUGGESTED ANSWER:
FALSE. The trial court has lost jurisdiction after perfection of the appeal and so it can no
longer entertain a motion for reconsideration.
ALTERNATIVE ANSWER: FALSE, because the appeal may be perfected as to one party but
not yet perfected as to the other party who may still file a motion for reconsideration without
abandonment of his right of appeal even though the appeal of the case is perfected already as to the
other party.
(Sec. 1, Rule 41).

a. Interlocutory order: It is an order which does not dispose the case but
leave something to be done by the trial court on the merits of the case. More on
IO, supra.
b. Final order: One that puts an end to the particular matter resolved,
leaving thereafter no substantial proceedings to be had in connection
therewith, except its execution (Bairan v. Tan Siu Lay, G.R. No. L-19460,
December 28, 1966). More on FO, supra.
2. Judgment: The conclusion of the law upon the matters contained in the
record, or the application of the law to the pleadings and to the facts, as found
by the court or admitted by the parties, or deemed to exist upon default in a course of judicial
proceedings (Gotamco v. Chan Seng, G.R. No. 22737, November 28, 1924).
b) Matters not appealable <Rule 41>

1. Rule 41, Section 1. Subject of appeal. — An appeal may be taken from a judgment
or final order that COMPLETELY DISPOSES of the case, or of a particular
matter therein when declared by these Rules to be appealable. ******NO APPEAL
may be taken from:
(a) An order denying a petition for relief or any similar motion seeking relief
from judgment;
(b) An interlocutory order;503 EG: denial of a motion to dismiss.504
(c) ******An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or duress, or any
other ground vitiating consent;
(e) An order of execution;
(f) A judgment or final order for or against one or more of several parties
or in separate claims, counterclaims, cross-claims and third-party complaints, while the
main case is pending, unless the court allows an appeal therefrom; and
(g) An order **dismissing an action without prejudice. EG: motion to
dismiss on improper venue;505
503
May a special civil action for certiorari prosper in case of a denial of a motion to dismiss or a motion
to quash? If so, in what instance or instances? Answer:
Yes, if it can be shown that the trial court acted without or in excess of jurisdiction or with
grave abuse of discretion, since the order of denial is interlocutory and not immediately appealable.
(Manalo v. Mariano, 69 SCRA 800; Tacas v. Cariaso, 72 SCRA 171; Newsweek v. IAC, 142 SCRA 171)
504
What is the movant’s remedy if the trial court incorrectly denies his motion to dismiss and
related motion for reconsideration? (2011 BAR)
(A) Answer the complaint.
(B) File an administrative action for gross ignorance of the law against the trial judge.
(C) File a special civil action of certiorari on ground of grave abuse of discretion.
(D) Appeal the orders of denial.
505
b. An order denying a motion to dismiss is merely interlocutory. The normal remedy is to file an
answer and interpose the ground as an affirmative defense, go to trial and appeal from the
h. **A judgment based on compromise506 is not appealable and is

immediately executory.
c) Remedy against judgments and orders which are not appealable: Rule 65
1. Last paragraph of Section 1, Rule 41: In all the above instances where the
judgment or final order is not appealable, the aggrieved party may file an
**appropriate special civil action under Rule 65. (n)
2. Practically, it would be the petition for certiorari under Rule 65 that would be
availed of under most circumstances. The most potent remedy against those
judgments and orders from which appeal cannot be taken is to allege and prove
that the same were issued without jurisdiction, with grave abuse of discretion or in
excess of jurisdiction, all amounting to lack of jurisdiction.
————————————————
d) Modes of appeal507 [Sec 2, Rule 41]
i. Ordinary appeal
1. The appeal to the Court of Appeals in cases decided by the Regional Trial Court
in the exercise of its original jurisdiction shall be taken by
adverse judgment. However, if the denial is tainted with grave abuse of discretion amounting to lack of
jurisdiction, the remedy is certiorari and prohibition (Emergency Loan Pawnshop v. CA, G.R. No.
129184, February 28, 2001).
506
X sued Y for breach of contract with damages. After Y filed his answer, the parties amicably settled.
The court rendered Judgment based on said compromise. Within the period to perfect the appeal, Y
filed a motion for new trial under Rule 37 alleging vitiation of his consent due to mistake and prayed
that the agreement be set aside. Resolve the motion.
*****A judgment by compromise is not appealable. Hence a motion for new trial is not
proper. Y should file a motion to set aside the agreement on the ground of mistake. (Reyes vs.
Ugarte, 75 Phil.505) or he could file a petition for relief under Rule 38 of the Rules of Court or file a
new action to annul the agreement within the prescriptive period (Saminiada vs. Mata, 92 Phil. 426).
507
What are the modes of appeal to the Supreme Court? (2%) SUGGESTED ANSWER:
The modes of appeal to the Supreme Court are:
1. appeal by certiorari on pure questions of law under Rule 45 through a petition for review
on certiorari; and
2. ******ordinary appeal in criminal cases through a notice of appeal from convictions
imposing reclusion perpetua or life imprisonment or where a lesser penalty is involved but for
offenses committed on the same occasion or which arose out of the same occurrence that gave
rise to the more serious offense. (Rule 122, sec. 3) *****Convictions imposing the death penalty are
elevated through automatic review [TOM: automatic review is now filed to the CA first]
[] Q: If the accused is meted the penalty of reclusion perpetua by the Regional Trial Court,
what should he do to have his case reviewed by the proper appellate court? (1993 Bar Question)
Suggested Answer: If the accused is meted the penalty of reclusion perpetua by the Regional Trial
Court, he should file a notice of appeal to the Supreme Court [now to the CA] which has exclusive
appellate jurisdiction. (Sec. 5, Art. VIII, Constitution: Sec. 3(c) of Rule 122) [TOM: check PP vs.
Mateo]
a. FILING A NOTICE OF APPEAL508 with the court which rendered

the judgment or final order appealed from and
b. SERVING A COPY thereof upon the adverse party.
2. Rule on Record on Appeal
*GR: NO RECORD ON APPEAL shall be required
*XPN: except in special proceedings and other cases of multiple or separate
appeals where law or these Rules so require. In such cases, the record on appeal shall
be filed and served in like manner.
3. Ordinary appeal under Rule 40 – from MTC to RTC
a. Notice on appeal – 15 day period
b. Record on appeal – 30 day period
*Coverage: Questions of fact or mixed questions of fact and law
4. Ordinary Appeal under Rule 41 – from RTC in the exercise of its original
jurisdiction to CA
a. Notice on appeal – 15 day period
b. Record on appeal – 30 day period
*Coverage: Questions of fact or of law or mixed question of fact and law
that has been raised in the court below and is within the issues framed by the
parties
———————————————
ii. Petition for review

1. Petition for review under Rule 42 – RTC in its appellate jurisdiction to CA;
*Coverage: Questions of fact, of law, or mixed questions of fact and law
2. Petition for review under Rule 43 – Quasi-judicial bodies to CA.
*Coverage: Questions of fact, of law, or mixed questions of fact and law
———————————————
508
NB: *****the notice of appeal can be withdrawn and another appeal filed as long as the latter is still
within the reglementary period to file an appeal: Q: Defendant X received an adverse Decision of the
Regional Trial Court in an ordinary civil case on 02 January 2003. He filed a Notice of Appeal on 10
January 2003. On the other hand, plaintiff A received the same Decision on 06 January 2003 and, on
19 January 2003, filed a Motion for Reconsideration of the Decision. On 13 January 2003, defendant X
filed a Motion withdrawing his notice of appeal in order to file a Motion for New Trial which he
attached. On 20 January 2003, the court denied A's Motion for Reconsideration and X’s Motion to
Withdraw Notice of Appeal. Plaintiff A received the Order denying his Motion for Reconsideration on
03 February 2003 and filed his Notice of Appeal on 05 February 2003. The court denied due course to
A’s Notice of Appeal on the ground that the period to appeal had already lapsed.
Is the court’s denial of X’s Motion to Withdraw Notice of Appeal proper? No, the court’s
denial of X’s Motion to Withdraw Notice of Appeal is not proper, because the period of appeal of
X has not yet expired. From January 2, 2003 when X received a copy of the adverse decision up to
January 13, 2003 when he filed his withdrawal of appeal and Motion for New Trial, only ten (10) days
had elapsed and he had fifteen (15) days to do so.
iii. Petition for review on certiorari or Appeal by Certiorari

1. Rules ON APPEAL BY CERTIORARI509
*GR: ONLY QUESTIONS OF LAW may be raised in a petition for
review on certiorari under Rule 45 of the Rules of Court. It is not the function of
this Court to analyze or weigh all over again the evidence introduced by the
parties before the lower court.
*XPNS [Medina vs. Asistio, Jr.]
a. When the conclusion is a finding grounded entirely on speculation,
surmises or conjectures (Joaquin v. Navarro 1953);
b. When the inference made is manifestly mistaken, absurb or
impossible (Luna v. Linatok, 74 Phil. 15 [1942]);
c. Where there is a grave abuse of discretion (Buyco v. People, 95 Phil.
453 [1955]);
d. When the judgment is based on a misapprehension of facts (Cruz v.
Sosing, L-4875, Nov. 27, 1953);
e. When the findings of fact510 are conflicting (Casica v. Villaseca, L-9590
Ap. 30, 1957; unrep.)
f. When the Court of Appeals, in making its findings, went beyond the
509
IOW: review by SC on the findings of fact of the CA
1. GR: CA’s findings of fact are final and conclusive and cannot be reviewed on appeal to the SC. The
SC shall not entertain questions of fact because its jurisdiction is limited to reviewing errors of law
(Natividad v. MTRCB, G.R. No. 161422, December 13, 2007).
2. XPNs:
a. The conclusion of the CA is grounded entirely on speculations, surmises and conjectures;
b. The inference made is manifestly mistaken, absurd or impossible;
c. There is grave abuse of discretion;
d. The judgment is based on misapprehension of facts;
e. The findings of facts are conflicting;
f. The CA in making its findings went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee;
g. The findings are contrary to those of the trial court;
h. The findings of facts are conclusions without citation of specific evidence on which they are
based;
i. The facts set forth in the petition as well as in the petitioner’s main and reply briefs are not
disputed by the respondents;
j. The findings of fact of the CA are premised on the supposed absence of evidence and
contradicted by the evidence on record; or
k. Those filed under Writs of amparo, habeas data, or kalikasan.
510
Findings of fact are generally not disturbed by the appellate court except in cases __________.
(2013 BAR)
(A) where the issue is the credibility of the witness
(B) where the judge who heard the case is not the same judge who penned the decision
(C) where the judge heard several witnesses who gave conflicting testimonies
(D) where there are substantially overlooked facts and circumstances that, if properly
considered, might affect the result of the case
issues of the case and the same is contrary to the admissions of both appellate
and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]);
g. The findings of the Court of Appeals are contrary to those of the trial
court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan,
142 SCRA 593 [1986]);
h. When the findings of fact are conclusions without citation of specific
evidence on which they are based (Ibid.);
i. When the facts set forth in the petition as well as in the petitioners main
and reply briefs are not disputed by the respondents (Ibid.,); and
j. The finding of fact of the Court of Appeals is premised on the supposed
absence of evidence and is contradicted by the evidence on record (Salazar v.
Gutierrez, 33 SCRA 242 [1970]).
2. Appeal vs. Certiorari******511
a. There are two modes of review:512
i. By appeal (Appeal by Certiorari) under R45 (older name is petition
for review on certiorari)
ii. By certiorari under R65.
b. Nuances:
i. R45: Appeal by Certiorari; only file in SC, never in CA!
ii. R65: Magic words under R65: acted without or in excess of JN, or
with grave abuse of discretion amounting to lack or excess of JN (GADALEJ).
511
Where and how will you appeal the following:*****
a) An order of execution issued by the RTC. (2012 BAR) A: A petition for certiorari under Rule 65
before the Court of Appeals. [TOM: Riano would say that there is no mode of appeal, but a mode of
review under Rule 65].
b) Judgment of RTC denying a petition for Writ of Amparo. (2012 BAR). A: Any party may appeal
from the final judgment or order to the Supreme Court by way of a petition for review on certiorari
under Rule 45 of the Rules of Court. The period of appeal shall be five (5) working days from the
date of notice of the adverse judgment, and the appeal may raise questions of fact or law or both
(Sec.19, Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, September 25, 2007).
c) Judgment of MTC on a land registration case based on its delegated jurisdiction. (2012 BAR) A:
The appeal should be filed with the Court of Appeals by filing a Notice of Appeal within 15 days
from notice of judgment or final order appealed from (Sec. 34, Batas Pambansa Blg. 129, or the
Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, March 25, 1994)
d) A decision of the Court of Tax Appeal's First Division. (2012 BAR) A: The decision of the Court of
Tax Appeals Division may be appealed to the CTA en banc. The decisions of the Court of Tax
Appeals are no longer appealable to the Court of Appeals. Under the modified appeal procedure, the
decision of a division of the CTA may be appealed to the CTA en banc. The decision of the CTA en
banc may in turn be directly appealed to the Supreme Court by way of a petition for review on
certiorari under Rule 45 on questions of law (Section 11, R.A. 9282, March 30, 2004).
512
Q: Explain each mode of certiorari: (2006 Bar Question)
a. As a mode of appeal from the Regional Trial Court or the Court of Appeals to the Supreme
Court. 2.5% SUGGESTED ANSWER:
A petition for review on certiorari under Rule 45 of the 1997 Revised Rules on Civil Procedure
is a mode of appeal on pure questions law from a judgment or final order or resolution of the Court
of Appeals or the Regional Court to the Supreme Court.
*within 60 days from notice (compared to 30days under R64).

iii. via R65 according to R64: There is no mode of appeal from the
decisions of the Commission on Audit (COA) and Comelec, only a mode of
review. From a Comelec division, go to Comelec en banc, then to SC via R65
according to R64, i.e., raise JN’l issues.
3. Appeal by certiorari under Rule 45513
a. RTC to SC (Sec. 2(c), Rule 41) – questions of law
b. CA to SC (Sec. 1, Rule 45) - questions of law
c. Sandiganbayan to SC (Sec. 1, Rule 45) - questions of law
d. CTA en banc to SC (Sec. 11, RA 9282; Sec. 1 Rule 45, as amended by
AM No. 07- 7-12- SC) – questions of law
e. Appeals from a judgment or final order in a petition for a writ of amparo
to the SC (AM No. 07-9-12- SC) – questions of fact and law
f. Appeals from a judgment or final order in a petition for a writ of Habeas
Data (AM No. 08-1-16-SC) - questions of fact and law
g. Appeals from judgment or final order in a petition for writ of Kalikasan
(AM No. 09-6-8-SC) - questions of fact and law
Petition for Review on Certiorari under Rule 45 vs. Certiorari under Rule 65
******
Petition for Review on Certiorari (Rule 45) Special Civil Action for Certiorari (Rule 65)
Mode of appeal which seeks to review final Mode or review; Special civil action; an original action
judgments and orders (Sec. 2, Rule 41). (Rule 65). It may be directed against an interlocutory
order or matters where no appeal may be taken from
(Sec. 1, Rule 41).
Rule 45 is but a continuation of the Rule 65 is not part of the appellate process but an
appellate process over the original case. independent action.
513
a) What are the contents of a petition for review by certiorari, under Rule 45 of the Rules of Court,
from a judgment of the Court of Appeals to the Supreme Court? The petition shall contain a concise
statement of the matters involved, the assignment of errors made in the court below, and the
reasons relied on for the allowance of the petition, and it should be accompanied with a true copy
of the judgment sought to be reviewed, together with twelve (12) copies [now 18 copies] of the
record on appeal, if any, and of the petitioner’s brief as filed in the Court of Appeals. A verified
statement of the date when notice of judgment and denial of the motion for reconsideration, if
any, were received shall accompany the petition. (Sec. 2 of Rule 45)
b) When must this petition for review under paragraph (a) hereof be filed? How does this
period differ from that required for filing the requisite petition in a special civil action for certiorari?
Within fifteen (15) days from notice of judgment or of the denial of his motion for reconsideration.
(Sec. 1 of Rule 43) There is no reglementary period for filing a petition for certiorari as a special civil
action. Only a reasonable period is required. [TOM: well, the rules say within 60 days from notice of
judgment]
c) State the three (3) grounds upon which the Supreme Court may dismiss the petition under
paragraph (a) hereinabove. *****The three grounds are that the appeal is without merit, or is
prosecuted manifestly for delay, or that the questions raised are too unsubstantial to require
consideration. (Sec. 3 of Rule 45)
Raises questions of law Raises questions of jurisdiction

It shall be filed within 15 days from notice It shall be filed not later than 60 days from notice of
of judgment or final order appealed from, judgment, order or resolution sought to be assailed or
or of the denial of the MR/MNT. On from denial of an MR or MNT. No extension of time
motion duly filed and served, with full to file the petition shall be granted except for
payment of the docket and other lawful fees compelling reason and in no case exceeding 15 days.
and the deposit for costs before the expiration
of the reglementary period, SC may for
justifiable reasons grant an extension of
30 days only.
Stays the judgment sought to be appealed Does not stay the judgment or order subject of the
petition, unless enjoined or restrained.
The parties are the original parties with the The tribunal, board, officer exercising judicial or
appealing party as the petitioner and the quasi-judicial functions is impleaded as respondent
adverse party as respondent without (Sec. 5 Rule 65).
impleading the lower court or its judge
(Sec. 4(a), Rule 45).
Filed with the SC (Sec. 1, Rule 45). Filed with the RTC (Sec. 21, BP 129); CA (Sec. 9, BP
129); SC (Sec. 5(1) Article VIII, 1987 Constitution).
MORE ON RULE 45. APPEAL BY CERTIORARI TO THE SUPREME COURT

1. Applicability. Section 1. Filing of petition with Supreme Court. — A party desiring to
appeal by certiorari from a judgment or final order or resolution of the
a. Court of Appeals,
b. the Sandiganbayan,
c. the Regional Trial Court or
d. other courts whenever authorized by law,
*may file with the Supreme Court a VERIFIED PETITION for review
on certiorari.
2. Section 4. Contents of petition. — The petition shall be filed in eighteen (18)
copies, with the original copy intended for the court being indicated as such by
the petitioner and shall
(a) state the full name of the appealing party as the petitioner and the
adverse party as respondent, without impleading the lower courts or judges
thereof either as petitioners or respondents;
(b) indicate the material dates showing when notice of the judgment or
final order or resolution subject thereof was received, when a motion for new trial
or reconsideration, if any, was filed and when notice of the denial thereof was
received;
(c) set forth concisely a statement of the matters involved, and the
reasons or arguments relied on for the allowance of the petition;
(d) be accompanied by a clearly legible duplicate original, or a certified
true copy of the judgment or final order or resolution certified by the clerk of
court of the court a quo and the requisite number of plain copies thereof, and such
material portions of the record as would support the petition; and
(e) **contain a sworn certification against forum shopping as provided
in the last paragraph of section 2, Rule 42. (2a)
3. Section 5. Dismissal or denial of petition. — The failure of the petitioner to comply
with any of the foregoing requirements regarding the payment of the docket and
other lawful fees, deposit for costs, proof of service of the petition, and the
contents of and the documents which should accompany the petition shall be
**sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground
that**
a. the appeal is without merit, or
b. is prosecuted manifestly for delay, or
c. that the questions raised therein are too unsubstantial to require
consideration. (3a)
4. Section 6. Review DISCRETIONARY. — **A review is NOT A MATTER OF
RIGHT, but of SOUND JUDICIAL DISCRETION, and will be granted only when
there are special and important reasons thereof. The following, while neither
controlling nor fully measuring the court's discretion, indicate the character of the reasons
which will be considered:
(a) When the court a quo has decided a QUESTION OF SUBSTANCE,
not theretofore determined by the Supreme Court, or has decided it in a way
probably NOT IN ACCORD WITH LAW or with the APPLICABLE DECISIONS of
the Supreme Court; or
(b) When the court a quo has so far DEPARTED from the ACCEPTED
AND USUAL COURSE of judicial proceedings, or so far sanctioned such
departure by a lower court, as to call for an exercise of the power of
supervision. (4a)
5. Section 7. Pleadings and documents that may be required; sanctions. — For purposes of
determining whether the petition should be dismissed or denied pursuant to
section 5 of this Rule, or where the petition is given due course under section 8
hereof, the Supreme Court may REQUIRE OR ALLOW the filing of such
pleadings, briefs, memoranda or documents as it may deem necessary within
such periods and under such conditions as it may consider appropriate, and
impose the corresponding sanctions in case of non-filing or unauthorized filing of such
pleadings and documents or non-compliance with the conditions therefor. (n)
6. Section 8. Due course; elevation of records. — If the petition is given due course,
the Supreme Court may require the elevation of the complete record of the case
or specified parts thereof within fifteen (15) days from notice. (2a)
7. Section 9. Rule applicable to both civil and criminal cases. —
*GR: The mode of appeal prescribed in this Rule shall be applicable to
both civil and criminal cases,
**XPN: except in criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment. (n)

——————————————
e) Issues to be raised on appeal

1. GR: The appellate court shall consider no error unless stated in the
assignment of errors (Sec. 8, Rule 51).
*XPNs: However the court may consider an error not raised on appeal
provided the same falls within any of the following categories:
a. It is an error that affects the jurisdiction over the subject matter;
b. It is an error that affects the validity of the judgment appealed from;
c. It is an error which affects the proceedings;
d. It is an error closely related to or dependent on an assigned error and
properly argued in the brief; or
e. It is a plain and clerical error (Ibid.)
*NOTE: Exceptions provided by jurisprudence:
f. The fact that appellant’s brief did not raise the lack of jurisdiction of the
trial court should not prevent the CA from taking up the issue of lack of
jurisdiction (Dy v. NLRC, G.R. No. L-68544, October 27, 1986; Bar 1993).
g. SC is clothed with ample authority to review rulings even if they are not
assigned as errors on appeal, if it finds that their consideration is necessary in
arriving at a just decision of the case (Dumo v. Espinas, G.R. No. 141962,
January 25, 2006).
h. Though petitioners did not raise in issue the appellate court’s reversal of
the award of damages in their favor, the Court has the discretion to pass upon
this matter and determine whether or not there is sufficient justification for the
award of damages (Sps. Romulo v. Sps. Layug, G.R. No. 151217, September 8,
2006).
i. The CA is imbued with sufficient authority and discretion to review
matters, not otherwise assigned as errors on appeal, if it finds that their
consideration is necessary in arriving at a complete and just resolution of the
case or to serve the interests of justice or to ***avoid dispensing piecemeal
justice (Asian Terminals v. NLRC, G.R. No. 158458, December 19, 2007).
2. Basis of the Court’s power to rule on issues NOT raised on appeal: The court
is imbued with sufficient authority and discretion to review matters, not
otherwise assigned as errors on appeal, as it finds that the consideration is
necessary in arriving at a complete and just resolution of the case or to serve the
interest of justice or to avoid dispensing piecemeal justice (Asian Terminals, Inc. v.
NLRC, 541 SCRA 105).
3. Issues allowed to be raised for the first time on appeal
a. Lack of jurisdiction;
b. Where the lower court committed plain error;
c. Where there are jurisprudential developments affecting the issues, or
d. when the issues raised present a matter of public policy.
f) Period of appeal
1. Period of appeal via notice of appeal under Rule 40, 41, 42, 43, and 45: A party-
litigant may either file his notice of appeal within 15 days from receipt of
court’s decision or file it within 15 days from receipt of the final order denying
his motion for new trial or motion for reconsideration.
a. Appeal by record on appeal: The period is 30 days from receipt of
court’s decision or the final order denying his motion for new trial or motion
for reconsideration.
b. ****Appeal in habeas corpus cases shall be taken within 48 hours
from receipt of the court’s decision or final order denying motion for
reconsideration or new trial.
2. Function of NOTICE of appeal: The function of the notice of appeal is
merely to notify the trial court that the appellant is availing of the right to
appeal, and **not to seek the court’s permission that he be allowed to pose an
appeal (Crisologo v. Daray, AM No. RTJ-07-2036, August 30, 2006). It does not
require the approval of the court.
3. Notice of appeal v. Record on appeal
Notice of Appeal Record on Appeal
Normally, appeal is made by filing a notice of Required only in Special Proceedings and other
appeal with the court which rendered the cases of multiple or separate appeals
judgment or final order appealed from
Deemed perfected as to him upon the Deemed perfected upon the approval of record on
filing of the notice of appeal. appeal (Riano, 2014)
Period of appeal is 15 days Period of record on appeal is 30 days
The court loses jurisdiction over the case The court loses jurisdiction only over the subject
upon the perfection of the appeal filed in matter thereof upon approval of the records on
due time and the expiration of the time of appeal filled in due time and the expiration of the
the appeal of the other parties time to appeal of the other parties.
***A record on appeal is required in the following cases:

a. In special proceedings and in other cases of multiple or separate appeals
(Sec. 3, Rule 40); NB: Not all special proceedings require record on appeal. It is
necessary only in special proceedings where there are multiple appeals, such as
settlement of estate (De Leon, 2013).
b. In a judgment for recovery of property or partition with accounting
(Roman Catholic Archbishop of Manila v. CA, G.R. No. 111324, July 5, 1996);
c. In a foreclosure of mortgage (Roman Catholic Archbishop of Manila v.
CA, G.R. No. 111324, July 5, 1996); and
d. In a judgment for or against one or more of several defendants, leaving
the action to proceed against the others (Sec. 4, Rule 36);
*Rationale for allowing multiple appeals: Allowance of multiple appeals
enable the rest of the case to proceed in the event that a separate and
distinct issue is resolved by the court and held to be final (Roman Catholic
Archbishop of Manila v. CA, G.R. No. 111324, July 5, 1996).
1. NOTICE OF APPEAL: Section 5. Notice of appeal. — The notice of appeal
shall
a. indicate the parties to the appeal,
b. specify the judgment or final order or part thereof appealed from,
c. specify the court to which the appeal is being taken, and
d. state the material dates showing the TIMELINESS of the appeal. (4a)
2. RECORD ON APPEAL
a. Section 6. Record on appeal; form and contents thereof. —
i. The full names of all the parties to the proceedings shall be stated
in the caption of the record on appeal and
ii. it shall include the judgment or final order from which the appeal
is taken and,
iii. in chronological order, copies of only such pleadings, petitions,
motions and all interlocutory orders as are related to the appealed judgment or final order for
the proper understanding of the issue involved,
iv. together with such data as will show that the appeal was
perfected on time.
v. If an issue of fact is to be raised on appeal, the record on appeal
shall include by reference all the evidence, testimonial and documentary, taken upon
the issue involved. The reference shall specify the documentary evidence by the exhibit
numbers or letters by which it was identified when admitted or offered at the hearing,
and the testimonial evidence by the names of the corresponding witnesses. If the whole
testimonial and documentary evidence in the case is to be included, a statement to that
effect will be sufficient without mentioning the names of the witnesses or the numbers or
letters of exhibits.
*Every record on appeal exceeding twenty (20) pages must contain a
subject index. (6a)
b. Section 7. Approval of record on appeal. — Upon the filing of the record
on appeal for approval and if no objection is filed by the appellee within five (5)
days from receipt of a copy thereof,
i. the trial court may approve it as presented or
ii. upon its own motion or at the instance of the appellee, may direct its
amendment by the inclusion of any omitted matters which are deemed essential to
the determination of the issue of law or fact involved in the appeal. If the trial court
orders the amendment of the record, the appellant, within the time limited in the
order, or such extension thereof as may be granted, or if no time is fixed by the order
within ten (10) days from receipt thereof, shall REDRAFT the record by
including therein, in their proper chronological sequence, such additional matters
as the court may have directed him to incorporate, and shall thereupon submit the
redrafted record for approval, upon notice to the appellee, in like manner as the original
draft. (7a)
c. Section 8. Joint record on appeal. — Where both parties are appellants,
they may file a JOINT RECORD ON APPEAL within the time fixed by
section 3 of this Rule, or that fixed by the court. (8a)
3. **Summary of ISSUES TO BE RAISED ON APPEAL
a. Questions of Law (QL): used/applied the wrong law; misinterpreted the
law.
b. Questions of Fact (QF): misapprehension of facts; requires review of the
facts & recalibration of the evidence.
*GR: appeals under R45 are for pure QL
*XPN: QF may also be appreciated under petitions for the issuance
of the following writs: Amparo, Habeas Data and Kalikasan.
4. Section 3. Period of ordinary appeal. —
a. The appeal shall be taken within fifteen (15) days from NOTICE of
the judgment or final order appealed from.
b. Where a record on appeal is required, the appellant shall file a NOTICE
OF APPEAL AND A RECORD ON APPEAL within thirty (30) days from notice of
the judgment or final order.
2. The period of appeal shall be interrupted by a timely motion for new trial or
reconsideration. **No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)
g) Perfection of appeal
1. Perfection of an appeal as a jurisdictional requirement
*GR: Perfection of appeal within the reglementary period is jurisdictional.
*XPN: When there has been FAME, resort to Petition for relief from
judgment under Rule 38 (Habaluyas v. Japson, G.R. No. 70895, May 30, 1986).
2. Effect of perfected appeal
*GR: Judgment is not vacated by appeal, but is merely stayed and may be
affirmed, modified or reversed or findings of facts or conclusions of law may be
adopted by reference.
*****XPN:
a. Not applicable to civil cases under the Rules on Summary
Procedure which provides that the decision of the RTC in civil cases governed by
said Rule, including forcible entry and unlawful detainer cases, shall be
**immediately executory without prejudice to a further appeal that maybe
taken therefrom.
b. Also, under Rule 43, an appeal from quasi-judicial bodies shall not stay
the judgment unless the CA directs otherwise.514
514
The Energy Regulatory Commission (ERC) promulgates a decision increasing electricity rates by
3%. KMU appeals the decision by way of petition for review. The appeal will therefore: (2012 BAR)
3. Appeal by notice of appeal – perfected as to the party upon filing of the notice
of appeal in due time with the court that rendered the judgment or final order
appealed from and upon payment of the appellate court docket fee.
*Effect: The court loses jurisdiction over the case upon the perfection
of the appeal filed in due time and the expiration of the time to appeal of the
other parties
4. Appeal by record on appeal – perfected as to the party with respect to the
subject matter thereof upon the approval of the record on appeal filed in due time
and upon payment of the appellate court docket fee.
*Effect: The court loses jurisdiction only over the subject matter upon
the approval of the records on appeal filed in due time and the expiration of the
time to appeal of the other parties
5. Appeal by petition for review – upon the timely filing of a petition for review
and the payment of the corresponding docket and other lawful fees, the appeal is
deemed perfected as to the petitioner.
*Effect: RTC loses jurisdiction over the case upon the perfection of the
appeal and the expiration of the time to appeal of the other parties (Sec. 4, Rule 40
in relation to Sec. 9, Rule 41).
****In all cases, prior to the transmittal of the original record or record on
appeal to the appellate court, the trial court may, motu proprio or on motion,
dismiss the appeal for having been taken out of time or for non-payment of
the docket and other lawful fees on time. The court may also exercise its
residual powers.
6. Duty of the clerk of court of lower court upon perfection of appeal—Within 30
days after perfection of all the appeals it shall be the duty of the clerk of court of
the lower court:
a. To verify the correctness of the original record or the record on appeal
and to make a certification of its correctness;
b. To verify the completeness of the records that will be transmitted to the
appellate court;
c. If found to be incomplete, to take such measures as may be required to
complete the records;
d. To transmit the records to the appellate court. If the efforts to complete
the records fail, the clerk of court shall indicate in his letter of transmittal the
exhibits or transcripts not included in the records and the reasons for their non-
transmittal, and the steps taken or that could be taken to have them available; and
e. The clerk of court shall furnish the parties with copies of his letter of
transmittal of the records to the appellate court (Sec. 10, Rule 41).
*Prior to the transmittal of the original record or the record on appeal to the
a. staytheexecutionofERCdecision.
b. shall not stay the ERC decision unless the Court of Appeals directs otherwise.
c. stay the execution of the ERC decision conditioned on KMU posting a bond.
d. shallnotstaytheERCdecision.
appellate court, the trial court may motu proprio or on motion dismiss the appeal
for having been taken out of time (Sec. 13, Rule 41).
7. ***RESIDUAL JURISDICTION of the court: It refers to the authority of
the trial court to issue orders for the protection and preservation of the rights
of the parties. The concept of residual jurisdiction is available at a stage in
which the court is normally deemed to have lost jurisdiction over the case or
the subject matter involved in the appeal. There is ****no residual jurisdiction
to speak of where no appeal or petition has even been filed (Fernandez v.
CA, G.R. No. 131094, May 16, 2005).
****Residual jurisdiction/powers exercised by the trial court515
a. Issue orders for the protection and preservation of the rights of the
parties which do not involve any matter litigated by the appeal;
b. Approve compromise agreements by parties after judgment has been
rendered; NB: There is no rule that forbids litigants to settle amicably even if there
is a judgment already.
c. Permit appeals of indigent litigants;
d. Order execution pending appeal in accordance with Sec. 2, Rule 39;
and
e. Allow withdrawal of appeal.
***Provided these are done prior to the transmittal of the original record
or the record on appeal even if the appeals have already been perfected516 or
despite the approval of the record on appeal (Sec. 9, Rule 41).517
515
**RESIDUAL JN OF THE COURT: In either case, prior to the transmittal of the original record or
the record on appeal, the court may
i. issue orders for the protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal,
ii. approve compromises,
iii. permit appeals of indigent litigants,
iv. order execution pending appeal in accordance with 2 of Rule 39, and
v. **allow withdrawal of the appeal. (9a)
516
Q: In the same case, the trial court rendered judgment against Mario Reyes which was received
by defendant’s lawyer on September 3, 1990 and by plaintiff’s lawyer on September 5, 1990.
Mario Reyes filed his notice of appeal on September 18, 1990. On September 19, 1990, Norma
Alajar filed a motion for execution pending appeal alleging that the appeal is dilatory and that
Mario Reyes has no valid defenses; besides, Norma Alajar is already destitute and needs the money
very badly. Mario Reyes opposed the motion for execution pending appeal on the ground that
since his appeal had been perfected on September 18, 1990, the trial court can no longer act on
the said motion. Decide with reasons. (1990 Bar Question) Answer:
*****The motion for execution pending appeal filed by Norma Alajar was timely because it
was filed before the perfection of the appeal of Mario Reyes. The appeal was perfected upon
the expiration of the last day to appeal by ANY PARTY. (Sec. 23 of Interim Rules). Hence, the
appeal was perfected on September 20, 1990, which was the last day to appeal by Norma Alajar
because her lawyer received copy of the decision on September 5, 1990. (Balgado v. IAC, 147
SCRA 258).
517
Q: In a decision rendered by the Regional Trial Court, plaintiffs Jose, Benigno and Nicolas were
ordered to surrender the possession of the fishpond subject matter of the litigation in favor of
8. Duration of the exercise of residual powers****

a. Ordinary Appeal – until the records are transmitted to the appellate
court;
b. Petition for review – until the CA gives due course to the petition.
9. Section 9. Perfection of appeal; effect thereof. **
a. 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.
*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.
b. 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 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.
10. Section 10. Duty of clerk of court of the lower court upon perfection of appeal. —
Within thirty (30) days after perfection of all the appeals in accordance with the
preceding section, it shall be the duty of the clerk of court of the lower court:
(a) To verify the correctness of the original record or the record on appeal, as the
case may be aid to make CERTIFICATION of its correctness;
(b) To verify the COMPLETENESS of the records that will be, transmitted
to the appellate court;
(c) If found to be incomplete, to take such measures as may be required
to complete the records, availing of the authority that he or the court may
exercise for this purpose; and
(d) To transmit the records to the appellate court.
*If the efforts to complete the records fail, he shall indicate in his LETTER OF
TRANSMITTAL
i. the exhibits or transcripts not included in the records being
defendant Yolando. Counsel for the plaintiffs received the decision on July 23, 1987, and appealed
from it on the following day, July 24, 1987. Counsel for the defendant received the decision
earlier, on July 20, 1987, and filed a motion for execution pending appeal on July 25, 1987, which the
trial court granted. Plaintiffs went to the Court of Appeals questioning the order granting the
execution of judgment. The appellate court nullified the order on the ground that the motion for
execution pending appeal was filed on July 25, 1987, or after the appeal had already been
perfected. Is the decision of the Court of Appeals proper? Explain. (1989 Bar Question) Answer:
No. *****The time within which the prevailing party may file a motion for execution pending
appeal is before the perfection of the appeal. An appeal is deemed perfected upon the expiration
of the last day to appeal by any party. The appeal of the plaintiffs, which was filed on July 24, 1987,
was perfected only on August 8, 1987 [TOM: to be exact, it’s August 7, 15 days after the plaintiff
received the notice, not 15 days after he filed his appeal], which was the last day to appeal by the
defendant. Hence, the motion for execution pending appeal filed on July 25, 1987 was filed on time
(Sec. 23 of Interim Rules; Delgado vs. IAC, 147 SCRA 258).
transmitted to the appellate court,

ii. the reasons for their non-transmittal, and
iii. the steps taken or that could be taken to have them available.
*The clerk of court shall furnish the parties with copies of his letter of
transmittal of the records to the appellate court. (10a)
11. Section 11. Transcript. — Upon the perfection of the appeal, the clerk shall
immediately direct the stenographers concerned to attach to the record of the
case five (5) copies of the transcripts of the testimonial evidence referred to in
the record on appeal. The stenographers concerned shall transcribe such
testimonial evidence and shall prepare and affix to their transcripts an index
containing the names of the witnesses and the pages wherein their testimonies are
found, and a list of the exhibits and the pages wherein each of them appears to
have been offered and admitted or rejected by the trial court. The transcripts shall
be transmitted to the clerk of the trial court who shall thereupon arrange the same
in the order in which the witnesses testified at the trial, and shall cause the pages
to be numbered consecutively. (12a)
12. Section 12. Transmittal. — The clerk of the trial court shall transmit to the
appellate court the original record or the approved record on appeal within
thirty (30) days from the perfection of the appeal, together with
a. the PROOF OF PAYMENT of the appellate court docket and other
lawful fees,
b. a certified true copy of the minutes of the proceedings,
c. the order of approval,
d. the certificate of correctness,
e. the original documentary evidence referred to therein, and
f. the original and three (3) copies of the transcripts.
*NB: Copies of the transcripts and certified true copies of the documentary
evidence shall remain in the lower court for the examination of the parties.
(11a)
13. Section 13. Dismissal of appeal. — Prior to the transmittal of the original
record or the record on appeal to the appellate court, **the trial court may motu
propio or on motion dismiss the appeal for having been taken out of time. (14a)
h) Appeal from judgments or final orders of the MTC

1. RULE 40: Appeal from MTC to RTC
2. Dismissal of case without trial or without jurisdiction—
a. If the lower court dismissed the case without trial on the merits, RTC
may:
i. Affirm – In such case, it is a declaration of the merits of the
dismissal;
ii. Affirm and the ground of dismissal is lack of jurisdiction over the
subject matter – The action of the RTC is a mere affirmation of the dismissal.
The RTC shall try the case on the merits as if the case was originally filed
with it;
ii. Reverse – it shall remand the case for further proceedings.
b. If the case was tried on the merits by the lower court without
jurisdiction over the subject matter, the RTC shall not dismiss the case if it
has original jurisdiction, but shall decide the case, and shall admit amended
pleadings and additional evidence (Sec. 8, Rule 40).
3. Duty of the clerk of court of RTC upon receipt of the complete record: The
clerk of court of the RTC shall notify the parties of such fact (Sec. 7(a), Rule 40).
4. Duties of the parties to whom notice was given by the clerk of court:
a. Within 15 days from such notice, it shall be the duty of the appellant to
submit a memorandum which shall briefly discuss the errors imputed to the lower
court, a copy of which shall be furnished by him to the adverse party. Failure of
the appellant to file a memorandum shall be a ground for dismissal of the appeal;
b. Within 15 days from receipt of the appellant’s memorandum, the appellee
may file his memorandum (Sec. 7(b), Rule 40).
5. When case is considered submitted for Decision: Upon the filing of the
memorandum of the appellee, or the expiration of the period to do so, the
case shall be considered submitted for decision. The Regional Trial Court shall
**decide the case on the basis of the entire record of the proceedings had in
the court of origin and such memoranda as are filed (Sec. 7(c), Rule 40).
6. Section 1. Where to appeal. — An appeal from a judgment or final order of a
Municipal Trial Court may be taken to the Regional Trial Court exercising
jurisdiction over the area to which the former pertains. The TITLE of the case
shall REMAIN as it was in the court of origin, but the party appealing the case
shall be further referred to as the APPELLANT and the adverse party as the
APPELLEE. (a)
7. Section 2. When to appeal. — An appeal may be taken WITHIN FIFTEEN
(15) DAYS AFTER NOTICE to the appellant of the judgment or final order
appealed from. Where a record on appeal is required, the appellant shall file a
notice of appeal and a record on appeal WITHIN THIRTY (30) DAYS
AFTER NOTICE of the judgment or final order.
The period of appeal shall be INTERRUPTED by a timely
a. motion for new trial or
b. motion for reconsideration.
*No motion for extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)
8. Section 3. How to appeal. —
a. The appeal is taken by FILING A NOTICE of appeal with the court that
rendered the judgment or final order appealed from. The notice of appeal shall
indicate
i. the parties to the appeal,
ii. the judgment or final order or part thereof appealed from, and
iii. state the material dates showing the timeliness of the appeal.
b. A RECORD ON APPEAL shall be required only in special

proceedings and in other cases of multiple or separate appeals. The form and
contents of the record on appeal shall be as provided in section 6, Rule 41.
c. Copies of the notice of appeal, and the record on appeal where required,
shall be served on the adverse party. (n)
9. Section 4. Perfection of appeal; effect thereof. — The perfection of the appeal and the
effect thereof shall be governed by the provisions of section 9, Rule 41. (n)
10. Section 5. Appellate court docket and other lawful fees. — Within the period for
taking an appeal, the APPELLANT SHALL PAY to the clerk of the court
which rendered the judgment or final order appealed from the full amount of
the appellate court docket and other lawful fees. Proof of payment thereof shall
be transmitted to the appellate court together with the original record or the
record on appeal, as the case may be. (n)
11. Section 6. Duty of the clerk of court. — WITHIN FIFTEEN (15) DAYS FROM THE
PERFECTION of the appeal, the clerk of court or the branch clerk of court of the
lower court shall TRANSMIT the original record or the record on appeal,
together with the transcripts and exhibits, which he shall CERTIFY AS
COMPLETE, to the proper Regional Trial Court. A copy of his letter of transmittal
of the records to the appellate court shall be furnished the parties. (n)
12. Section 7. Procedure in the Regional Trial Court. —
(a) Upon receipt of the complete record or the record on appeal, the clerk of court of
the Regional Trial Court shall notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of the
appellant to submit a MEMORANDUM which shall briefly discuss the errors
imputed to the lower court, a copy of which shall be furnished by him to the adverse
party. Within fifteen (15) days from receipt of the appellant's memorandum, the
APPELLEE may file his memorandum. **Failure of the appellant to file a
memorandum shall be a GROUND FOR DISMISSAL of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the expiration of the
period to do so, the case shall be considered submitted for decision. The
Regional Trial Court shall decide the case on the basis of the entire record of the
proceedings had in the court of original and such memoranda as are filed. (n)
13. Section 8. Appeal from orders dismissing case without trial; lack of jurisdiction. —
a. 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.
i. **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. b
ii. In case of reversal, the case shall be REMANDED for further
proceedings.
b. If the case was TRIED ON THE MERITS by the lower court without
jurisdiction over the subject matter, the Regional Trial Court on appeal shall
NOT dismiss the case if it has original jurisdiction thereof, but shall
DECIDE the case in accordance with the preceding section, without prejudice
to the admission of amended pleadings and additional evidence in the
INTEREST OF JUSTICE. (n)
14. Section 9. Applicability of Rule 41. — The other provisions of Rule 41 shall
apply to appeals provided for herein insofar as they are not inconsistent with or
may serve to supplement the provisions of this Rule. (n)
—————————————————-
i) Appeal from judgments or final orders of the RTC

******Three Modes518 of Appeal from the decisions of the RTC
1. Rule 41: ORDINARY APPEAL or appeal by writ of error: This presupposes
that the RTC rendered the judgment or final order in the civil action or special
proceeding in the EXERCISE OF ITS ORIGINAL JURISDICTION;
a. The appeal is taken to the CA
b. on questions of fact or mixed questions of fact and law.
b. The appeal is taken by notice519 of appeal or by record on appeal.
518
Q: Distinguish the two (2) modes of appeal from the judgment of the Regional Trial Court to the
Court of Appeals. (3%) (2009 Bar Question) SUGGESTED ANSWER:
In cases decided by the Regional Trial Courts in the exercise of their original jurisdiction,
appeals to the Court of Appeals shall be ordinary appeal by filing written notice of appeal indicating
the parties to the appeal; specifying the judgment/final order or part thereof appealed from; specifying
the court to which the appeal is being taken; and stating the material dates showing the timeliness of
the appeal. The notice of appeal shall be filed with the RTC which rendered the judgment appealed
from and copy thereof shall be served upon the adverse party within 15 days from notice of judgment
or final order appealed from. But if the case admits of multiple appeals or is a special proceeding, a
record on appeal is required aside from the written notice of appeal to perfect the appeal, in which
case the period for appeal and notice upon the adverse party is not only 15 days but 30 days from
notice of judgment or final order appealed from. The full amount of the appellate court docket fee and
other lawful fees required must also be paid within the period for taking an appeal, to the clerk of the
court which rendered the judgment or final order appealed from (Secs. 4 and 5, Rule 41, Rules of
Court). The periods of 15 or 30 days above-stated are non-extendible.
In cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction,
appeal to the Court of Appeals shall be by filing a verified petition for review with the Court of
Appeals and furnishing the RTC and the adverse party with copy thereof, within 15 days from
notice of judgment or final order appealed from. Within the same period for appeal, the docket fee and
other lawful fees required with the deposit for cost should be paid. The 15-day period maybe
extended for 15 days and another 15 days for compelling reasons.
519
A. When is an appeal from the Regional Trial Court to the Court of Appeals deemed perfected?
(2%). An appeal from the Regional Trial Court to the Court of Appeals is deemed perfected as to
the appellant upon the filing of a notice of appeal in the Regional Trial Court in due time or within
the reglementary period of appeal. An appeal by record on appeal is deemed perfected as to the
appellant with respect to the subject matter thereof upon the approval of the record on appeal filed in
due time. (Sec. 9, Rule 41 of the 1997 Rules)
B. XXX received a copy of the RTC decision on June 9, 1999; YYY received it on the next
day, June 10, 1999. XXX filed a Notice of Appeal on June 15, 1999. The parties entered into a
d. This requires the filing of brief which contains the assignment of error.
*Rule 41 refers to appeals from RTC EXERCISING ORIGINAL
JURISDICTION. An appeal on pure questions of law cannot be taken to the CA
and such improper appeal will be dismissed pursuant to Sec. 2, Rule 50 (Regalado,
2012).
**And so, in a damage suit filed at the RTC, the mode of appeal is under
Rule 41 by filing a notice of appeal at the RTC on questions of fact or mixed
QF/QL.
2. Rule 42: PETITION FOR REVIEW: The questioned judgment or final order
was rendered by RTC IN THE EXERCISE OF ITS APPELLATE520 JURISDICTION
over a judgment or final order in a civil action or special proceeding originally
commenced in and decided by a lower court.
a. The appeal is taken by a petition for review filed with CA
b. on questions of facts, of law or on mixed questions of fact and law.
3. Rule 45: PETITION FOR REVIEW ON CERTIORARI: from a judgment
or final order rendered in a civil action or special proceeding by RTC in the
exercise of its ORIGINAL jurisdiction; Taken to the SC; only on questions of
law. RTC straight to SC via R45 only applies if the following REQUISITES are
present:******
a. Judgment of the RTC is in the exercise of its ORIGINAL JN;521
compromise on June 16, 1999. On June 13, 1999, YYY, who did not appeal, filed with the RTC
a/notion for approval of the Compromise Agreement. XXX changed his mind and opposed the
motion on the ground that the RTC has no more jurisdiction. Rule on the motion assuming that
the records have not yet been forwarded to the CA. (2%) SUGGESTED ANSWER:
*****The contention of XXX that the RTC has no more jurisdiction over the case is not correct
because at the time that the motion to approve the compromise had been filed, the period of
appeal of YYY had not yet expired. Besides, even if that period had already expired, the records of
the case had not yet been forwarded to the Court of Appeals. The rules provide that in appeals by
notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeals filed
in due time and the expiration of the time to appeal of the other parties. (Sec. 9, third par. Rule 41 of
the 1997 Rules) *****The rules also provide that prior to the transmittal of the record, the court
may, among others, approve compromises. (Sec. 9, fifth par., Rule 41 of the 1997 Rules) (Note:
June 13, the date of the filing of the motion for approval of the Compromise Agreement, appears to be
a clerical error.)
520
Q: The Regional Trial Court (RTC) affirmed the appealed decision of the Municipal Trial Court
(MTC). You are the counsel of the defeated party and he tells you to appeal the RTC’s decision.
A. What mode of appeal will you adopt? [2%] The mode of appeal is by petition for review
under Rule 42, 1997 Rules of Civil Procedure.
B. Within what time and in what court should you file your appeal? [3%] (1998 Bar Question)
The period of appeal is within fifteen (15) days from notice of the decision subject of the appeal or
of the denial of a motion for new trial or reconsideration filed in due time. The appeal shall be filed
la the Court of Appeals. (See. 1, Hole 42, 1997 Rules of Civil Procedure.)
521
Q: Which of the following decisions may be appealed directly to the Supreme Court (SC)? (Assume
that the issues to be raised on appeal involve purely questions of law) (2014)
(A)Decision of the Regional Trial Court (RTC) rendered in the exercise of its appellate jurisdiction
(B) Decision of the RTC rendered in the exercise of its original jurisdiction
b. it only raises Questions of Law

*******NB: if one is absent, go to CA! EG1: even if you raise pure QL but
the RTC decision was rendered in the exercise of its appellate JN, go to CA under
R42 (petition for review under R42: errors of fact or law); EG2: if the decision of
the RTC is in the exercise of its original JN but it raises QF or mixed QF/QL, go
to CA under R41 (ordinary appeal).
MORE ON RULE 42. Petition for Review From the Regional Trial Courts to the
Court of Appeals
1. Subject of an appeal under Rule 41
a. GR: An appeal may be taken from:
i. A judgment or final order that completely disposes of the case; or
ii. A particular matter therein when declared by the Rules to be
appealable (Sec. 1, Rule 41).
b. XPNs: No appeal may be taken from:****
i. An order denying a petition for relief or any similar motion seeking
relief from judgment;
ii. An interlocutory order;
iii. An order disallowing or dismissing an appeal;
iv. An order denying a motion to set aside a judgment by consent,
confession or compromise on the ground of fraud, mistake or duress, or any other
ground vitiating consent;
v. An order of execution;
vi. A judgment or final order for or against one or more of several
parties or in separate claims, counterclaims, cross-claims, and third party
complaints, while the main case is pending, unless the court allows an appeal
therefrom; and
vii. An order dismissing an action without prejudice.
*NB: In any of the foregoing circumstances, the aggrieved party may
file an appropriate special civil action as provided under Rule 65 (Ibid.).
(C)Decision of the Civil Service Commission

(D)Decision of the Office of the President
Answer: (B) decision of the RTC rendered in the exercise of its original jurisdiction. Section 2,
Rule 41 of the Rules of Court provides the three (3) modes of appeal, which are as follows:
1. Ordinary appeal – the appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and serving a copy thereof upon the
adverse party. No record on appeal shall be required except in special proceedings and other cases of
multiple or separate appeals where the law or these Rules so require. In such cases, the record on
appeal shall be filed and served in like manner.
2. Petition for review – the appeal to the Court of Appeals in cases decided by the Regional
Trial court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with
Rule 42.
3. Appeal by certiorari – in all cases where only questions of law are raised or involved, the
appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.
2. Title of the case when appealed to the CA under Rule 41: In all cases appealed
to the CA under Rule 41, the title of the case shall remain as it was in the court
of origin but the party appealing the case shall be referred to as the appellant and
the adverse party appellee (Sec. 1, Rule 44).
3. Contents of Appellant’s Brief—The appellant’s brief shall contain, in the order
herein indicated, the following:
a. A subject index of the matter in the brief with a digest of the arguments
and page references, and a table of cases alphabetically arranged, textbooks and
statutes cited with references to the pages where they are cited;
b. An assignment of errors intended to be urged, which errors shall be
separately, distinctly and concisely stated without repetition and numbered
consecutively;
c. Under the heading "Statement of the Case," a clear and concise statement
of the nature of the action, a summary of the proceedings, the appealed rulings
and orders of the court, the nature of the judgment and any other matters
necessary to an understanding of the nature of the controversy, with page
references to the record;
d. Under the heading "Statement of Facts," a clear and concise statement in
a narrative form of the facts admitted by both parties and of those in controversy,
together with the substance of the proof relating thereto in sufficient detail to
make it clearly intelligible, with page references to the record;
e. A clear and concise statement of the issues of fact or law to be submitted
to the court for its judgment;
f. Under the heading "Argument," the 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;
g. Under the heading "Relief," a specification of the order or judgment
which the appellant seeks; and
h. 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 (Sec.
13, Rule 44).
***It shall be the duty of the appellant to file with the court, within 45 days
from receipt of the notice of the clerk that all the evidence, oral and
documentary, are attached to the record, 7 copies of his legibly typewritten,
mimeographed or printed brief, with proof of service of 2 copies thereof upon the
appellee (Sec. 7, Rule 44).
4. Contents of Appellee’s Brief—The appellee’s brief shall contain, in the order
herein indicated, the following:
a. A subject index of the matter in the brief with a digest of the arguments
and page references, and a table of cases alphabetically arranged, textbooks and
statutes cited with references to the pages where they are cited;
b. Under the heading "Statement of Facts," the appellee shall state that he
accepts the statement of facts in the appellant’s brief, or under the heading
"Counter-Statement of Facts," he shall point out such insufficiencies or
inaccuracies as he believes exist in the appellant’s statement of facts with
references to the pages of the record in support thereof, but without repetition of
matters in the appellant’s statement of facts; and
c. Under the heading "Argument," the appellee shall set forth his arguments
in the case on each assignment of error with page references to the record. The
authorities relied on shall be cited by the page of the report at which the case
begins and the page of the report on which the citation is found (Sec. 14, Rule 44).
***Within 45 days from receipt of appellant’s brief, the appellee shall file
with the court 7 copies of his legibly typewritten, mimeographed or printed brief,
with proof of service of 2 copies thereof upon the appellant (Sec. 8, Rule 44).
5. Purpose of an appellant’s/appellee’s brief: To present to the court in a concise
form the points and question in controversy, and by fair argument on the facts
and law of the case, to assist the court in arriving at a just and proper
conclusion/decision (De Liano v. CA, G.R. No. 142316, November 22, 2001).
***Extensions of time for the filing of briefs will not be allowed except for
good and sufficient cause and only if the motion for extension is filed before
the expiration of the time sought to be extended (Sec. 12, Rule 44).
6. Brief vs. Memorandum***
Brief Memorandum
Ordinary appeals Certiorari, prohibition, mandamus, quo warranto and habeas corpus cases
Filed within 45 days; for appellant’s Filed within 30 days from receipt of the notice issued by the
or appellant’s brief if appellant’s reply clerk of court that all the evidence, oral and documentary, is
brief is filed within 20 days already attached to the record (Sec. 10, Rule 44).
Contents specified by Rules Shorter, briefer, only one issue involved – No subject index
or assignment of errors, just facts and law applicable
7. ****Application of Rule 42 (1998, 1990, 2009 Bar Question): Rule 42 applies to

an appeal from the judgment or final order of the RTC to the CA in cases
decided by the former in the exercise of its appellate jurisdiction.
[] Bar 1998: The RTC affirmed the appealed decision of the MTC. You
are the counsel of the defeated party and he tells you to appeal the RTC's decision.
a. What mode of appeal will you adopt? The mode of appeal is by petition
for review under Rule 42 of the Rules of Court.
b. Within what time and in what court should you file your appeal? The
period of appeal is within 15 days from notice of the decision subject of the
appeal or of the denial of a motion for new trial or reconsideration filed in due time
to the CA.
8. Filing an appeal under Rule 42:
a. A party aggrieved by the decision of RTC in the exercise of its appellate
jurisdiction, may file a verified petition for review with the CA;
b. At the same time paying to the clerk of said court the corresponding
docket and other lawful fees, depositing the amount of Php500.00 for costs,
and furnishing the RTC and the adverse party with a copy of the petition;
c. The petition shall be filed and served within 15 days from notice of
the decision sought to be reviewed or of the denial of petitioner’s MNT or MR
filed in due time after judgment;
d. Upon proper motion and the payment of the full amount of the docket
and other lawful fees and the deposit for costs before the expiration of the
reglementary period, the CA may grant an additional period of 15 days only
within which to file the petition for review;
e. No further extension shall be granted except for the most compelling
reason and in no case to exceed 15 days (Sec. 1, Rule 42).
9. Contents of the Petition for Review—The petition shall be filed in 7 legible
copies, with the original copy intended for the court being indicated as such by the
petitioner, and shall:
a. State the full names of the parties to the case, without impleading the
lower courts or judges thereof either as petitioners or respondents;
b . Indicate the specific material dates showing that it was filed on time;
c. Set forth concisely a statement of the matters involved, the issues raised,
the specification of errors of fact or law, or both, allegedly committed by the
Regional Trial Court, and the reasons or arguments relied upon for the allowance
of the appeal;
d. Must be accompanied by clearly legible duplicate originals or true copies
of the judgments or final orders of both lower courts, certified correct by the clerk
of court of the Regional Trial Court, the requisite number of plain copies thereof
and of the pleadings and other material portions of the record as would support
the allegations of the petition; and
e. There must be a certification against forum shopping (Sec. 2, Rule 42).
10. Effect of failure to comply with the requirements: The failure of the petitioner
to comply with any of the foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs, proof of service of the petition,
and the contents of and the documents which should accompany the petition shall
be **sufficient ground for the dismissal thereof (Sec. 3, Rule 42).
11. ***Petition for review NOT a matter of right: It is not a matter of right but
discretionary on the CA. It may only be given due course if it shows on its
face that the lower court has committed an error of fact and/or law that will
warrant a reversal or modification of the decision or judgment sought to be
reviewed or dismiss the petition if it finds that it is patently without merit, or
prosecuted manifestly for delay, or the questions raised therein are too
unsubstantial to require consideration (Sec. 4, Rule 42).
12. Actions the CA may take in acting upon the petition: The CA may require the
respondent to file a comment on the petition, **not a motion to dismiss,
within 10 days from notice, or dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or that the questions
raised therein are too unsubstantial to require consideration (Sec. 4, Rule 42).
13. Contents of comment on the petition
a. State whether or not he accepts the statement of matters involved in the
petition;
b. Point out the insufficiencies or inaccuracies in petitioner’s statement of
facts and issues; and
c. State the reasons why the petition should be denied or dismissed (Sec. 5,
Rule 42).
14. Doctrine of Residual Jurisdiction applicable to appeals under Rule 42:
Yes, provided that such residual jurisdiction/ power is exercised before the
CA gives due course to the petition (Sec. 8, Rule 42).
15. Effect of an appeal of the judgment or final order under Rule 42: Except in
civil cases decided under the Rule on Summary Procedure, the appeal, as a rule,
shall stay the judgment or final order; unless the CA, the law or the rules shall
provide otherwise.
16. Grounds for the CA to dismiss an appeal
a. Failure of the record on appeal to show on its face that the appeal was
taken within the period fixed by the Rules;
b. Failure to file the notice of appeal or the record on appeal within the
period prescribed by the Rules;
c. Failure of the appellant to pay the docket and other lawful fees as
provided in Section 5 Rule 40 and Sec. 4 of Rule 41;
d. Unauthorized alterations, omissions or additions in the approved record
on appeal as provided in Sec. 4 of Rule 44;
e. Failure of the appellant to serve and file the required number of copies of
his brief or memorandum within the time provided by the Rules;
f. Absence of specific assignment of errors in the appellant’s brief, or of
page references to the record as required in Sec.13, paragraphs (a), (c), (d) and (f)
of Rule 44;
g. Failure of the appellant to take the necessary steps for the correction or
completion of the record within the time limited by the court in its order;
h. Failure of the appellant to appear at the preliminary conference under
Rule 48 or to comply with orders, circulars, or directives of the court without
justifiable cause; and
i. The fact that the order or judgment appealed from is not appealable (Sec.
1, Rule 50; En Banc Resolution, February 17, 1998).
**The grounds are discretionary upon the appellate court. The very
wording of the rule uses the word “may” instead of “shall.” This indicates that it is
only directory and not mandatory (Mercury Drug Corporation v. De Leon, G.R.
No. 165622, October 17, 2008).
17. When case deemed submitted for decision: If the petition is given due course,
the CA may set the case for oral argument or require the parties to submit
memoranda within a period of 15 days from notice. The case shall be deemed
submitted for decision upon the filing of the last pleading or memorandum
required by these Rules or by the court itself (Sec. 9, Rule 42).
[] Q: Can a case decided by the RTC in the exercise of its appellate
jurisdiction be appealed by way of a petition for review on certiorari under Rule
45? A: No, where a case is decided by the RTC in the exercise of its appellate
jurisdiction, ****regardless of whether the appellant raises questions of fact, of
law or mixed questions of fact and law, the appeal shall be brought to the CA
by filing a petition for review under Rule 42 (Quezon City v. ABS-CBN
Broadcasting Corporation, G.R. No. 166408, October 6, 2008).
18. Appeals from quasi-judicial bodies NOT included under Rule 45: Under the
present Rule 45, appeals may be brought through a petition for review on
certiorari but only from judgments and final orders of the court enumerated in
Sec. 1 thereof. Appeals from judgments and final orders of quasi-judicial agencies
are now required to be brought to the CA on a verified petition for review, under
the requirements and conditions in Rule 43 which was precisely formulated and
adopted to provide for a uniform rule of appellate procedure for quasi-judicial
agencies (Fabian v. Desierto, G.R. No. 129742, September 16, 1998).
****The mode of appeal under Rule 45 is applicable to criminal cases,
except in those where the penalty imposed is death, reclusion perpetua or life
imprisonment (Sec. 9, Rule 45).
MORE ON RULE 42
1. Section 1. How appeal taken; time for filing. — A party desiring to appeal from a
decision of the Regional Trial Court rendered in the exercise of its
APPELLATE JURISDICTION may
a. file a VERIFIED PETITION for review with the Court of Appeals,
b. paying at the same time to the clerk of said court the corresponding
DOCKET AND OTHER LAWFUL FEES, depositing the amount of P500.00 for costs,
and
c. furnishing the Regional Trial Court and the adverse party with a copy of
the petition.
2. When? (Sec 1b). The petition shall be filed and served within fifteen (15)
days from notice of the decision sought to be reviewed or of the denial of
petitioner's motion for new trial or reconsideration filed in due time after
judgment. Upon proper motion and the payment of the full amount of the
docket and other lawful fees and the deposit for costs before the expiration of
the reglementary period, the **Court of Appeals may grant an additional
period of fifteen (15) days only within which to file the petition for review. NO
FURTHER EXTENSION shall be granted except for the MOST COMPELLING
REASON and in no case to exceed fifteen (15) days. (n)
3. Section 2. Form and contents. — The petition shall be filed in seven (7) legible
copies, with the original copy intended for the court being indicated as such by
the petitioner, and shall

(a) state the full names of the parties to the case, without impleading the
lower courts or judges thereof either as petitioners or respondents;
(b) indicate the specific material dates showing that it was filed on time;
(c) set forth concisely a statement of the matters involved, the issues
raised, the specification of errors of fact or law, or both, allegedly committed by
the Regional Trial Court, and the reasons or arguments relied upon for the
allowance of the appeal;
(d) be accompanied by clearly legible duplicate originals or true copies
of the judgments or final orders of both lower courts, certified correct by the
clerk of court of the Regional Trial Court, the requisite number of plain copies
thereof and of the pleadings and other material portions of the record as would
support the allegations of the petition.
**(CAFS) The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore commenced any other
action involving the same issues in the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn
that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other
tribunal or agency, he undertakes to promptly inform the aforesaid courts and
other tribunal or agency thereof within five (5) days therefrom. (n)
4. Section 3. Effect of failure to comply with requirements. — The failure of the
petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and the documents which should
accompany the petition shall be **SUFFICIENT GROUND FOR THE
DISMISSAL thereof. (n)
5. Section 4. Action on the petition. — The Court of Appeals may
a. require the respondent to **file a COMMENT on the petition, NOT
A MOTION TO DISMISS, within ten (10) days from notice, or
b. DISMISS the petition if it finds the same to be PATENTLY WITHOUT
MERIT, prosecuted manifestly for delay, or that the questions raised therein are
too insubstantial to require consideration. (n)
6. Section 5. Contents of comment. — The comment of the respondent shall be
filed in seven (7) legible copies, accompanied by certified true copies of such
material portions of the record referred to therein together with other supporting
papers and shall
(a) state whether or not he accepts the statement of matters involved in
the petition;
(b) point out such insufficiencies or inaccuracies as he believes exist in
petitioner's statement of matters involved but without repetition; and
(c) state the reasons why the petition should not be given due course. A
copy thereof shall be served on the petitioner. (a)

7. Section 6. Due course. — If upon the filing of the comment or such other pleadings as the
court may allow or require, or after the expiration of the period for the filing
thereof without such comment or pleading having been submitted, the Court of
Appeals finds prima facie that the lower court has committed an error of fact
or law that will warrant a reversal or modification of the appealed decision, it may
accordingly give DUE COURSE to the petition. (n)
8. Section 7. Elevation of record. — Whenever the Court of Appeals deems it
necessary, it may order the clerk of court of the Regional Trial Court to elevate
the original record of the case including the oral and documentary evidence
within fifteen (15) days from notice. (n)
9. Section 8. Perfection of appeal; effect thereof. —
(a) Upon the timely filing of a petition for review and the payment of the
corresponding docket and other lawful fees, the appeal is **DEEMED
PERFECTED AS TO THE PETITIONER. The Regional Trial Court loses
jurisdiction over the case upon the perfection of the appeals filed in due time
and the expiration of the time to appeal of the other parties.
*******(Residual powers) However, before522 the Court of Appeals gives
due course to the petition, the Regional Trial Court may
i. issue orders for the protection and preservation of the rights of
the parties which do not involve any matter litigated by the appeal,
ii. approve compromises,
iii. permit appeals of indigent litigants,
iv. order execution pending appeal in accordance with section 2 of
Rule 39, and allow withdrawal of the appeal. (9a, R41)
(b) Except in civil cases decided under the Rule on Summary Procedure, the
**APPEAL SHALL STAY the judgment or final order unless the Court of
Appeals, the law, or these Rules shall provide otherwise. (a)
10. Section 9. Submission for decision. — If the petition is given due course, the
Court of Appeals may set the case for ORAL ARGUMENT or require the parties
to submit MEMORANDA within a period of fifteen (15) days from notice. The
case shall be **DEEMED SUBMITTED FOR DECISION upon the filing of the last
pleading or memorandum required by these Rules or by the court itself. (n)
j) Appeal from judgments or final orders of the CA

1. CA to SC under R45 for pure QL.523
522
Q: TRUE or FALSE. The filing of a motion for the reconsideration of the trial court’s decision
results in the abandonment of a perfected appeal. (2009 Bar Question) SUGGESTED ANSWER:
FALSE. ******The trial court has lost jurisdiction after perfection of the appeal and so it
can no longer entertain a motion for reconsideration.
523
Q: May the aggrieved party file a petition for certiorari in the Supreme Court under Rule 65 of the
1997 Rules of Civil Procedure instead of filing a petition for review on certiorari under Rule 45 thereof
2. Note that appeals from Sandiganbayan (SB) to SC are also via R45 on pure QL,
never a review on facts decided by SB.
3. Bar 2008: Instances where the CA may act as a trial court******
a. In annulment of judgment under Secs. 5 and 6, Rule 47. Should the CA
find prima facie merit in the petition, the same shall be given due course and
summons shall be served on the respondent, after which trial will follow, where
the procedure in ordinary civil cases shall be observed.
b. When a motion for new trial is granted by the CA, the procedure in the
new trial shall be the same as that granted by a RTC (Sec. 4, Rule 53).
c. A petition for habeas corpus shall be set for hearing (Sec. 12, Rule 102).
d. In petition for writs of amparo and habeas data, a hearing can be
conducted.
e. Under Sec. 12, Rule 124 of the Rules of Criminal Procedure, the CA has
the power to try cases and conduct hearings, receive evidence and perform any
and all acts necessary to resolve factual issues which fall within its original and
appellate jurisdiction.
f. The CA can grant a new trial based on the ground of newly-discovered
evidence (Sec. 14, Rule 124).
g. The CA under Sec. 6, Rule 46, whenever necessary to resolve factual
issues, may conduct hearing thereon or delegate the reception of the evidence of
such issues to any of its members or to an appropriate agency or office.
h. Human Security Act
4. ***Appeal under Rule 45 NOT a matter of right: Appeal under Rule 45 is not a
matter of right, but of sound judicial discretion with the ******exception of
cases where the penalty of death, or reclusion perpetua524 where the an
APPEAL IS A MATTER OF RIGHT leaving the reviewing court without any
discretion (People v. Flores, G.R. No. 170565, January 31, 2006).
*The following reasons may be considered in allowing the petition:
a. When the court below has decided a question of substance not yet
determined by the SC;
b. When the court below decided a question of substance in a way that is
for the nullification of a decision of the Court of Appeals in the exercise either of its original or
appellate jurisdiction? Explain. (2005 Bar Question) SUGGESTED ANSWER:
The remedy to nullify a decision of the Court of Appeals is a petition for review on certiorari in
the Supreme Court under Rule 45, instead of a petition for certiorari under Rule 65, except in certain
exceptional circumstances such as where appeal is inadequate. *****By settled jurisprudence,
certiorari is not a substitute for a lost appeal.
524
Q: If the penalty of reclusion temporal is increased on appeal by the Court of Appeals to
reclusion perpetua, what should the accused do to have his case reviewed by the Supreme Court?
(1992 Bar Question) Suggested Answer:
*****The accused need not do anything because the Court of Appeals should render (sic)
judgment imposing the penalty of reclusion perpetua refrain from entering judgment and
certify the case to the Supreme Court for review. (Sec. 13 of Rule 124; People vs. Daniel 86 SCRA
511). If the Court of Appeals does not certify the case to the Supreme Court for review, the accused
should invite (sic) the attention of the Court of Appeals to its duty to do so.
probably not in accord with the law or with the applicable decisions of the
SC;
c. When the court below has departed from the accepted and usual
course of judicial proceedings or so far sanctioned such a departure by a lower
court, as to call for the exercise of the power of supervision of the SC (Sec. 6, Rule
45).
5. Instances when an appeal by Certiorari under Rule 45 may apply—Appeal by
certiorari to the SC or petition for review on certiorari applies in the following
cases:
a. Appeal from a judgment or final order of the RTC in cases where only
questions of law are raised or are involved and the case is one decided by the said
court in the exercise of its original jurisdiction (Sec. 2(c), Rule 41);
b. Appeal from the judgment, final order or resolutions of the CA where
the petition shall raise only questions of law (Sec. 1, Rule 45);
c. Appeal from the judgment, final order or resolutions of the
Sandiganbayan where the petition shall raise only questions of law (Sec. 1, Rule
45);
d. Appeals from the decision or ruling of the CTA en banc (Sec. 11, RA
9282; Sec. 1, Rule 45 as amended by AM No, 07-7-12-SC);
e. Appeals from a judgment or final order in a petition for writ of amparo to
the SC which may raise questions of fact, questions of law or of both fact and law
(Sec. 19, AM No. 08-1-16-SC, Rule on the writ of amparo, October 24, 2007);
f. Appeal from judgment or final order in a petition for the writ of habeas
data. The appeal may raise questions of fact or law or both (AM No. 08-1-16-SC,
g. Rule on the writ of Habeas data (Sec. 19) February 2, 2008);
h. Appeal from judgment or final order in a petition for the writ of kalikasan
where the appeal may raise questions of fact or law or both (AM No. 09-6-8-SC,
Rules of Procedure for Environmental Cases, Part III, Rule 7).
7. Only questions of law under Rule 45: The SC is not a trier of facts, and is not
to review or calibrate the evidence on record. Moreover, the findings of facts of
the trial court, as affirmed on appeal by the CA, are conclusive on the SC
(Boston Bank of the Philippines v. Manalo, G.R. No. 158149, February 9, 2006;
Frondarina v. Malazarte, G.R. No. 148423, December 6, 2006).
8. Question of law vis-à-vis Question of fact:***
a. A question of law exists when the doubt or controversy concerns the
correct application of law or jurisprudence to a certain given set of facts; or
when the issue does not call for an examination of the probative value of the
evidence presented, the truth or falsehood of facts being admitted.
b. A question of fact obtains when the doubt or difference arises as to the
truth or falsehood of facts or when the query invites the calibration of the whole
evidence considering mainly the credibility of the witnesses, the existence and
relevancy of specific surrounding circumstances, as well as their relation to
each other and to the whole, and the probability of the situation (Irene Marcos-
Araneta, et al. v. CA, G.R. No. 154096, August 22, 2008).

9. Contents of the verified petition for review on certiorari—The petition shall be
filed in 18 copies, with the original copy intended for the court being indicated as
such by the petitioner and shall:
a. State the full name of the appealing party as the petitioner and the adverse
party as the respondent, without impleading the lower courts or judges thereof
either as petitioners or respondents;
b. Indicate the material dates showing when notice of the judgment or final
order or resolution subject thereof was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of denial thereof was received;
c. Set forth concisely a statement of the matters involved, and the reasons
and arguments relied on for the allowance of the petition;
d. Be accompanied by a clearly legible duplicate original, or a certified copy
of the judgment or final order or resolution certified by the clerk of court a quo
and the requisite number of plain copies thereof, and such material portions of the
record as would support the petition;
e. Contain a sworn certification against forum shopping (Sec. 4, Rule 45).
***The petition for review on certiorari may include an application for a
writ of preliminary injunction or other provisional remedies. The petitioner
may also seek the same provisional remedies by verified motion filed in the same
action or proceeding at any time during its pendency (Sec. 1, Rule 45, as amended
by A.M. No. 07-7-12-SC effective December 27, 2007).
10. ****Motu Proprio denial of the Petition for Review by the SC
a. The appeal is without merit;
b. Prosecuted manifestly for delay; or
c. That the questions raised therein are too unsubstantial to require
consideration (Sec. 5, Rule 45)
11. Availment of both remedies under Rule 45 and 65
a. *****GR: A party cannot file a petition both under Rules 45 and 65
of the Rules of Court because said procedural rules pertain to different
remedies and have distinct applications. The remedy of appeal under Rule 45
and an original action for certiorari under Rule 65 are ******MUTUALLY
EXCLUSIVE and NOT ALTERNATIVE OR CUMULATIVE. Thus, a
party should not join both petitions in one pleading (NAMAPRI – SPFL v. CA,
G.R. Nos. 148839-49, November 2, 2006).
b. XPN: The SC may set aside technicality for justifiable reasons as
when the petition before the Court is clearly meritorious and filed on time both
under Rule 45 and 65. In accordance with the liberal spirit which pervades the
Rules of Court and in the interest of justice, The Court may treat the petition
as having been filed under Rule 45 (International Corporate Bank, Inc. v. CA,
G.R. No. 129910, September 5, 2006).
Procedure in the Court of Appeals

1. RULE 44. ORDINARY APPEALED CASES
Section 1. Title of cases. — In all cases appealed to the Court of Appeals
under Rule 41, the title of the case shall REMAIN as it was in the court of
origin, but the party appealing the case shall be further referred to as the
APPELLANT and the adverse party as the APPELLEE. (1a, R46)
Section 2. Counsel and guardians. — The counsel and guardians ad litem of the
parties in the court of origin shall be respectively considered as their counsel
and guardians ad litem in the Court of Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the adverse party and filed with the court.
(2a, R46)
Section 3. Order of transmittal of record. — If the original record or the
record on appeal is not transmitted to the Court of Appeals within thirty (30)
days after the perfection of the appeal, either party may file a motion with the trial
court, with notice to the other, for the transmittal of such record or record on appeal. (3a, R46)
Section 4. Docketing of case. — Upon receiving the original record or the record on
appeal and the accompanying documents and exhibits transmitted by the lower court, as well as
the proof of payment of the docket and other lawful fees, the clerk of court of
the Court of Appeals shall docket the case and notify the parties thereof. (4a,
R46). Within ten (10) days from receipt of said notice, the appellant, in appeals
by record on appeal, shall file with the clerk of court seven (7) clearly legible
copies of the approved record on appeal, together with the proof of service of two (2)
copies thereof upon the appellee. **Any unauthorized alteration, omission or
addition in the approved record on appeal shall be a GROUND FOR
DISMISSAL of the appeal. (n)
Section 5. Completion of record. — Where the record of the docketed case
is incomplete, the clerk of court of the Court of Appeals shall so inform said
court and recommend to it measures necessary to complete the record. It shall
be the duty of said court to take appropriate action towards the completion of the
record within the shortest possible time. (n)
Section 6. Dispensing with complete record. — Where the completion of the
record could not be accomplished within a sufficient period allotted for said
purpose due to INSUPERABLE OR EXTREMELY DIFFICULT CAUSES,
the court, on its own motion or on motion of any of the parties, may declare that the record
and its accompanying transcripts and exhibits so far available are sufficient to decide
the issues raised in the appeal, and shall issue an order explaining the reasons for
such declaration. (n)
Section 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. (10a, R46)
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. (11a, R46)
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. (12a, R46)
Section 10. Time of filing memoranda in special cases. — IN CERTIORARI,
PROHIBITION, MANDAMUS, QUO WARRANTO AND HABEAS CORPUS CASES, the
parties shall **file IN LIEU OF BRIEFS, their respective memoranda within a
non-extendible period of thirty (30) days from receipt of the notice issued by
the clerk that all the evidence, oral and documentary, is already attached to the record. (13a,
R46)
The ****failure of the appellant to file his memorandum within the
period therefor may be a GROUND FOR DISMISSAL of the appeal. (n)
Section 11. Several appellants or appellees or several counsel for each party.
— Where there are several appellants or appellees, each counsel representing one or
more but not all of them shall be served with only one copy of the briefs.
When several counsel represent one appellant or appellee, copies of the brief
may be served upon any of them. (14a, R46)
Section 12. Extension of time for filing briefs. —
*GR: Extension of time for the filing of briefs will not be allowed,
*****XPN: except for GOOD AND SUFFICIENT CAUSE, and
only if the MOTION FOR EXTENSION IS FILED BEFORE THE EXPIRATION of
the time sought to be extended. (15, R46) [TOM: this refers to briefs, not MRs,
where only SC can grant extension of time to file…]
Section 13. CONTENTS of appellant's brief. — The appellant's brief shall
contain, in the order herein indicated, the following:
(a) A SUBJECT INDEX of the matter in the brief with a digest of the
arguments and page references, and a table of cases alphabetically
arranged, textbooks and statutes cited with references to the pages where they are cited;
(b) An ASSIGNMENT OF ERRORS intended to be urged, which errors
shall be separately, distinctly and concisely stated without repetition and
numbered consecutively;
(c) Under the heading "STATEMENT OF THE CASE," a clear and
concise statement of the nature of the action, a summary of the proceedings,
the appealed rulings and orders of the court, the nature of the judgment and
any other matters necessary to an understanding of the nature of the controversy with
page references to the record;
(d) Under the heading "STATEMENT OF FACTS," a clear and concise
statement in a narrative form of the facts admitted by both parties and of those
in controversy, together with the substance of the proof relating thereto in
sufficient detail to make it clearly intelligible, with page references to the
record;
(e) A clear and concise statement of the issues of fact or law to be submitted, to
the court for its judgment;
(f) Under the heading "ARGUMENT," the 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;
(g) Under the heading "RELIEF," a specification of the order or judgment
which the appellant seeks; and
(h) 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.
(16a, R46)
Section 14. CONTENTS of appellee's brief. — The appellee's brief shall
contain, in the order herein indicated the following:
(a) A SUBJECT INDEX of the matter in the brief with a digest of the
arguments and page references, and a table of cases alphabetically arranged, textbooks
and statutes cited with references to the pages where they are cited;
(b) Under the heading "STATEMENT OF FACTS," the appellee shall
state that he accepts the statement of facts in the appellant's brief, or under the
heading "COUNTER-STATEMENT OF FACTS," he shall point out such
insufficiencies or inaccuracies as he believes exist in the appellant's statement
of facts with references to the pages of the record in support thereof, but without
repetition of matters in the appellant's statement of facts; and
(c) Under the heading "ARGUMENT," the appellee shall set forth his
arguments in the case on each assignment of error with page references to the
record. The authorities relied on shall be cited by the page of the report at which
the case begins and the page of the report on which the citation is found. (17a,
R46)
Section 15. Questions that may be raised on appeal. — **Whether or not the
appellant has filed a motion for new trial in the court below he may include in
his assignment of errors ANY QUESTION OF LAW OR FACT that has been
raised in the court below and which is within the issues framed by the parties.
(18, R46)
2. RULE 46. Original Cases.
Section 1. Title of cases. — In all cases originally filed in the Court of
Appeals, the party instituting the action shall be called the PETITIONER and
the opposing party the RESPONDENT. (1a)
Section 2. To what actions applicable. — This Rule shall apply to ORIGINAL
ACTIONS FOR CERTIORARI, PROHIBITION, MANDAMUS AND
QUO WARRANTO.
Except as otherwise provided,
a. the actions for annulment of judgment shall be governed by Rule 47,
b. for certiorari, prohibition and mandamus by Rule 65, and
c. for quo warranto by Rule 66. (n)

Section 3. Contents and filing of petition; effect of noncompliance with
requirements. — The petition shall contain
a. the full names and actual addresses of all the petitioners and
respondents,
b. a concise statement of the matters involved,
c. the factual background of the case, and
d. the grounds relied upon for the relief prayed for.
e. In actions filed under Rule 65, the petition shall further indicate the
material dates showing
i. when notice of the judgment or final order or resolution subject
thereof was received,
ii. when a motion for new trial or reconsideration, if any, was filed
and
iii. when notice of the denial thereof was received.
f. It shall be filed in seven (7) clearly legible copies together with proof
of service thereof on the respondent with the original copy intended for the
court indicated as such by the petitioner, and shall be accompanied by a clearly
legible duplicate original or certified true copy of the judgment, order, resolution,
or ruling subject thereof, such material portions of the record as are referred to
therein, and other documents relevant or pertinent thereto.
g. The certification shall be accomplished by the proper clerk of court
or by his duly authorized representative, or by the proper officer of the court,
tribunal, agency or office involved or by his duly authorized representative.
h. The other requisite number of copies of the petition shall be
accompanied by clearly legible plain copies of all documents attached to the
original.
i. (CAFS) The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any other action involving
the same issues in the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn
that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other
tribunal or agency, he undertakes to promptly inform the aforesaid courts and
other tribunal or agency thereof within five (5) days therefrom.
j. The petitioner shall pay the corresponding docket and other lawful fees
to the clerk of court and deposit the amount of P500.00 for costs at the time of
the filing of the petition.
**The failure of the petitioner to comply any of the requirements shall be
SUFFICIENT GROUND FOR THE DISMISSAL of the petition. (n; Bar
Matter No. 803, 21 July 1998)
Section 4. Jurisdiction over person of respondent, how acquired. — The court shall
acquire jurisdiction over the person of the respondent

a. by the SERVICE on him of its order or resolution indicating its initial
action on the petition or
b. by his VOLUNTARY SUBMISSION to such jurisdiction. (n)
Section 5. ACTION by the court. — The court may
a. DISMISS the petition outright with specific reasons for such dismissal or
b. REQUIRE the respondent to file a COMMENT on the same within
ten (10) days from notice.
**Only pleadings required by the court shall be allowed. All other
pleadings and papers, may be filed ONLY WITH LEAVE of court. (n)
Section 6. Determination of factual issues. — **Whenever necessary to
resolve factual issues, the court itself may CONDUCT HEARINGS thereon or
delegate the reception of the evidence on such issue to any of its members or
to an appropriate court, agency or office. (n)
Section 7. Effect of failure to file comment. — **When no comment is
filed by any of the respondents, the case may be decided on the BASIS of the
record, without prejudice to any disciplinary action which the court may take against the
disobedient party. (n)
3. RULE 48. Preliminary Conference
Section 1. Preliminary conference. — At any time during the pendency of a
case, the court may call the parties and their counsel to a preliminary
conference.**
(a) To consider the **possibility of an AMICABLE SETTLEMENT,
except when the case is not allowed by law to be compromised
(b) To define, simplify and clarify the ISSUES for determination;
(c) To formulate STIPULATIONS of facts and ADMISSIONS of
documentary exhibits, limit the number of WITNESSES to be presented in
cases falling within the original jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on the ground of newly discovered
evidence; and
(d) To take up such other matters which may aid the court in the prompt
disposition of the case. (Rule 7, CA Internal Rules) (n)
Section 2. RECORD OF THE CONFERENCE. — The proceedings at
such conference shall be recorded and, upon the conclusion thereof, a resolution
shall be issued embodying all the actions taken therein, the stipulations and
admissions made and the issues defined. (n)
Section 3. BINDING EFFECT of the results of the conference. — Subject to
such modifications which may be made TO PREVENT MANIFEST INJUSTICE, the
**RESOLUTION in the preceding section shall control the subsequent
proceedings in the case unless, within five (5) days from notice thereof, any party shall
satisfactorily show VALID CAUSE why the same should not be followed. (n)
4. RULE 49. Oral Argument
Section 1. When allowed. — At its own instance or upon motion of a
party, the court may hear the parties in ORAL ARGUMENT ON THE
MERITS of a case, or on ANY MATERIAL INCIDENT in connection
therewith. (n)
The oral argument shall be LIMITED to such matters as the court may
specify in its order or resolution. (1a, R48)
Section 2. Conduct of oral argument. — Unless authorized by the court, ONLY
ONE COUNSEL may argue for a party. The duration allowed for each party,
the sequence of the argumentation, and all other related matters shall be as
directed by the court. (n)
Section 3. No hearing or oral argument for motions. — **Motions shall not be
set for hearing and, unless the court otherwise directs, no hearing or oral argument
shall be allowed in support thereof. The adverse party may file objections to
the motion within five (5) days from service, upon the expiration of which such
motion shall be deemed submitted for resolution. (29, R49)
5. RULE 50. Dismissal of Appeal
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:**
(a) Failure of the record on appeal to show on its face that the appeal was
taken WITHIN THE PERIOD FIXED by these Rules;
(b) Failure to file the notice of appeal or the record on appeal WITHIN
THE PERIOD PRESCRIBED by these Rules;
(c) Failure of the appellant to PAY THE DOCKET AND OTHER
LAWFUL FEES as provided in section 5, Rule 40 and section 4 of Rule 41; (Bar
Matter No. 803, 17 February 1998)
(d) UNAUTHORIZED ALTERATIONS, OMISSIONS OR
ADDITIONS in the approved record on appeal as provided in section 4 of Rule 44;
(e) **Failure of the appellant to SERVE AND FILE the required
number of copies of his brief or memorandum within the time provided by
these Rules;
(f) **ABSENCE OF SPECIFIC ASSIGNMENT OF ERRORS in the
appellant's brief, or of PAGE REFERENCES to the record as required in
section 13, paragraphs (a), (c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary steps for the correction
or COMPLETION of the record within the time limited by the court in its order;
(h) **Failure of the appellant to APPEAR at the preliminary conference
under Rule 48 or to comply with orders, circulars, or directives of the court
WITHOUT JUSTIFIABLE CAUSE; and
(i) The fact that the order or judgment appealed from is NOT
APPEALABLE. (1a)
Section 2. Dismissal of IMPROPER APPEAL to the Court of Appeals. —
a. An appeal under Rule 41 taken from the Regional Trial Court to the
Court of Appeals raising only questions of law shall be dismissed, issues
purely of law not being reviewable by said court.

b. Similarly, an appeal by notice of appeal instead of by petition for
review from the appellate judgment of a Regional Trial Court shall be
dismissed. (n)
**An appeal erroneously taken to the Court of Appeals shall not be
transferred to the appropriate court but shall be DISMISSED OUTRIGHT. (3a)
Section 3. ******WITHDRAWAL of appeal. — An appeal may be
withdrawn **AS OF RIGHT at ANY TIME BEFORE THE FILING OF THE
APPELLEE'S BRIEF. Thereafter, the withdrawal may be allowed in the discretion
of the court. (4a)
6. RULE 51. Judgment
Section 1. When case deemed submitted for judgment. — A case shall be
deemed submitted for judgment:
A. In ordinary appeals. —
1) Where no hearing on the merits of the main case is held, upon
the filing of the last pleading, brief, or memorandum required by the Rules or by the
court itself, or the expiration of the period for its filing.
2) Where such a hearing is held, upon its termination or upon the
filing of the last pleading or memorandum as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
B. In original actions and petitions for review. —
1) Where no comment is filed, upon the expiration of the period to
comment.
2) Where no hearing is held, upon the filing of the last pleading
required or permitted to be filed by the court, or the expiration of the period for
its filing.
3) Where a hearing on the merits of the main case is held, upon its
termination or upon the filing of the last pleading or memorandum as may be
required or permitted to be filed by the court, or the expiration of the period for
its filing. (n)
Section 2. By whom rendered. — The judgment shall be rendered by the
members of the court who participated in the deliberation on the merits of
the case before its assignment to a member for the writing of the decision. (n)
Section 3. Quorum and voting in the court. — The PARTICIPATION of all
three Justices of a division shall be necessary at the deliberation and the
**UNANIMOUS VOTE OF THE THREE JUSTICES SHALL BE
REQUIRED for the pronouncement of a judgment or final resolution.
a. If the three justices do not reach a unanimous vote, the clerk shall enter the
votes of the dissenting Justices in the record. Thereafter, the Chairman of the
division shall refer the case, together with the minutes of the deliberation, to the
Presiding Justice who shall designate two Justices chosen by raffle from
among all the other members of the court to sit temporarily with them, forming
a SPECIAL DIVISION OF FIVE JUSTICES.
b. The PARTICIPATION of all the five members of the special division

shall be necessary for the DELIBERATION required in section 2 of this Rule
and the CONCURRENCE OF A **MAJORITY of such division shall be
required for the pronouncement of a judgment or final resolution. (2a)
Section 4. Disposition of a case. — The Court of Appeals, in the exercise of its
appellate jurisdiction, may AFFIRM, REVERSE, OR MODIFY the judgment or
final order appealed from, and **MAY DIRECT A NEW TRIAL OR FURTHER
PROCEEDINGS to be had. (3a)
Section 5. Form of decision. — Every decision or final resolution of the
court in appealed cases shall **CLEARLY AND DISTINCTLY STATE THE
FINDINGS OF FACT AND THE CONCLUSIONS OF LAW on which it is based,
which may be contained in the decision or final resolution itself, or adopted from
those set forth in the decision, order, or resolution appealed from. (Sec. 40, BP
Blg. 129) (n)
Section 6. ******HARMLESS ERROR.525 526 — No error in either the
admission or the exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the trial court or by any of the
parties is ground for granting a new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless refusal to take such action
appears to the court INCONSISTENT WITH SUBSTANTIAL JUSTICE.
*****The court at every stage of the proceeding must DISREGARD ANY ERROR
OR DEFECT WHICH DOES NOT AFFECT THE SUBSTANTIAL RIGHTS of the
parties. (5a)
Section 7. Judgment where there are several parties. — In all actions or
proceedings, an appealed judgment may be affirmed as to some of the
appellants, and reversed as to others, and the case shall thereafter be
proceeded with, so far as necessary, **as if separate actions had been begun
and prosecuted, and execution of the judgment of affirmance may be had
accordingly, and costs may be adjudged in such cases, as the court shall deem
proper. (6)
Section 8. Questions that may be decided. — No error which does not affect
the jurisdiction over the subject matter or the validity of the judgment appealed
from or the proceedings therein will be considered unless stated in the assignment of
errors, or closely related to or dependent on an assigned error and properly argued in the
brief, save as the court may pass upon plain errors and clerical errors. (7a)
525
HARMLESS ERROR: any error, defect, irregularity or variance that does not affect substantial
rights must be disregarded.
vs. PLAIN ERROR: a plain error that affects substantial rights may be considered even though
it was not brought to the court’s attention. [US Federal Rules of Criminal Procedure].
526
BAR 2017: Q: What is the Harmless Error Rule in relation to appeals? SUGGESTED
ANSWER: The harmless error rule in relation to appeals provides that the appellate court should
not reverse a judgment as a result of any error or defect which does not affect the substantial
rights of the parties. [See S6 R51; Bersamin, Appeal & Review in the Philippines 362] (Jurist Review
Center, Inc.)
Section 9. Promulgation and notice of judgment. — After the judgment or final

resolution and dissenting or separate opinions, if any, are signed by the Justices
taking part, they shall be delivered for filing to the clerk who shall indicate
thereon the date of promulgation and cause true copies thereof to be served
upon the parties or their counsel. (n)
Section 10. Entry of judgments and final resolutions. — If no appeal or motion
for new trial or reconsideration is filed within the time provided in these Rules,
the judgment or final resolution shall forthwith be entered by the clerk in
the book of entries of judgments. The date when the judgment or final resolution
becomes executory shall be deemed as the date of its entry. The record shall
contain the dispositive part of the judgment or final resolution and shall be
signed by the clerk, with a certificate that such judgment or final resolution
has become final and executory. (2a, R36)
Section 11. Execution of judgment. — Except where the judgment or final order or
resolution, or a portion thereof, is ordered to be immediately executory, the MOTION
FOR ITS EXECUTION may only be filed in the proper court after its entry.
a. In original actions in the Court of Appeals, its writ of execution
i. shall be accompanied by a certified true copy of the entry of
judgment or final resolution and
ii. addressed to any appropriate officer for its enforcement.
b. In appealed cases, where the motion for execution pending appeal is
filed in the Court of Appeals at a time that it is in possession of the original
record or the record on appeal,
i. the resolution granting such motion shall be transmitted to the
lower court from which the case originated,
ii. together with a certified true copy of the judgment or final order
to be executed,
iii. **with a directive for such court of origin to issue the proper
writ for its enforcement. (n)
7. RULE 54. Internal Business
Section 1. Distribution of cases among divisions. — All the cases of the Court of
Appeals shall be allotted among the different divisions thereof for hearing and
decision. The Court of Appeals, **sitting EN BANC, shall make PROPER
ORDERS OR RULES TO GOVERN
a. the allotment of cases among the different divisions,
b. the constitution of such divisions,
c. the regular rotation of Justices among them,
d. the filing of vacancies occurring therein, and
e. other matters relating to the business of the court;
*and such rules shall continue in force until repealed or altered by the
Supreme Court. (1a)
Section 2. Quorum of the court. — A MAJORITY of the ACTUAL
members of the court shall constitute a quorum for its sessions en banc. Three
members shall constitute a quorum for the sessions of a division. The affirmative
votes of the majority of the members present shall be necessary to pass a
resolution of the court en banc. The affirmative votes of three members of a
division shall be necessary for the pronouncement of a judgment or final
resolution, which shall be reached in consultation before the writing of the
opinion by any member of the division. (Sec. 11, first par. of BP Blg. 129, as
amended by Sec. 6 of EO 33). (3a)
8. RULE 55. Publications of Judgments and Final Resolutions
Section 1. Publication. — The judgments and final resolutions of the court
shall be published in the Official Gazette and in the Reports officially
authorized by the court in the language in which they have been originally
written, together with the syllabi therefor prepared by the reporter in consultation
with the writers thereof. Memoranda of all other judgments and final resolutions not
so published shall be made by the reporter and published in the Official Gazette
and the authorized reports. (1a)
Section 2. Preparation of opinions for publication. — The reporter shall prepare
and publish with each reported judgment and final resolution a CONCISE
SYNOPSIS of the facts necessary for a clear understanding of the case, the
names of counsel, the material and controverted points involved, the
authorities cited therein, and a syllabus which shall be confined to points of
law. (Sec. 22a, R.A. No. 296) (n)
Section 3. General make-up of volumes. — The published decisions and final
resolutions of the Supreme Court shall be called "PHILIPPINE REPORTS,"
while those of the Court of Appeals shall be known as the "COURT OF APPEALS
REPORTS." Each volume thereof shall contain a table of the cases reported
and the cases cited in the opinions, with a complete alphabetical index of the
subject matters of the volume. It shall consist of not less than seven hundred
pages printed upon good paper, well bound and numbered consecutively in the
order of the volumes published. (Sec. 23a, R.A. No. 296) (n)
Procedure In The Supreme Court

1. Rule 45, supra.
2. RULE 56 A. Original Cases
Section 1. Original cases cognizable. — Only petitions for
a. certiorari,
b. prohibition,
c. mandamus,
d. quo warranto,
e. habeas corpus,
f. disciplinary proceedings against members of the judiciary and attorneys,
and
g. cases affecting ambassadors, other public ministers and consuls may be
filed originally in the Supreme Court. (n)
Section 2. Rules applicable. — The procedure in original cases for certiorari,

prohibition, mandamus, quo warranto and habeas corpus shall be in accordance with the
applicable provisions of the Constitution, laws, and Rules 46, 48, 49, 51, 52 and
this Rule, subject to the following provisions:
a) All references in said Rules to the Court of Appeals shall be understood
to also apply to the Supreme Court;
b) The portions of said Rules dealing strictly with and specifically intended
for appealed cases in the Court of Appeals shall not be applicable; and
c) Eighteen (18) clearly legible copies of the petition shall be filed, together
with proof of service on all adverse parties.
The proceedings for disciplinary action against members of the judiciary
shall be governed by the laws and Rules prescribed therefor, and those against
attorneys by Rules 139-B, as amended. (n)
2. RULE 56 B. Appealed Cases
Section 3. Mode of appeal. —
*GR: An appeal to the Supreme Court may be taken only by a
petition for review on certiorari,
*XPN: except in criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment. (n)
Section 4. Procedure. — The appeal shall be governed by and disposed of in
accordance with the applicable provisions of the Constitution, laws, Rules 45, 48,
sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule. (n)
Section 5. Grounds for dismissal of appeal. — The appeal may be dismissed
motu proprio or on motion of the respondent on the following grounds:
(a) Failure to take the appeal within the REGLEMENTARY PERIOD;
(b) LACK OF MERIT in the petition;
(c) Failure to pay the requisite DOCKET FEE and other lawful fees or
to make a deposit for costs;
(d) Failure to comply with the requirements regarding proof of service
and contents of and the documents which should accompany the petition;
(e) Failure to comply with any circular, directive or order of the
Supreme Court WITHOUT JUSTIFIABLE CAUSE;
(f) **Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the Supreme Court. (n)
Section 6. Disposition of improper appeal. — **Except as provided in section 3,
Rule 122 regarding appeals in criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by
notice of appeal shall be dismissed.
An **appeal by certiorari taken to the Supreme Court from the Regional Trial
Court submitting issues of fact may be referred to the Court of Appeals for
decision or appropriate action. The determination of the Supreme Court on
whether or not issues of fact are involved shall be FINAL. (n)
Section 7. Procedure if opinion is equally divided. — Where the court en
banc is equally divided in opinion, or the necessary majority cannot be had, the
case shall again be deliberated on, and if after such deliberation no decision is
reached,**
a. the original action commenced in the court shall be DISMISSED,
b. in appealed cases, the judgment or order appealed from shall stand
AFFIRMED;
c. and on all incidental matters, the petition or motion shall be DENIED.
k) Appeal from judgments or final orders of the CTA

1. Procedure in the CA, RULE 44: Ordinary Appealed Cases
*NB: CTA now has a rank equivalent to that of CA.
2. From CTA division, go to CTA en banc, then to SC under R45 for Questions
of Law.
3. BOC vs. Devanadera 2015:****
a. when it’s a criminal violation of tax/tariff laws: file with CTA via R65
b. when it’s a felony outside the tax laws: file with CA via R65
4. Filing an Appeal from a decision of the CTA: An appeal from a decision or
resolution of the CTA in Division on an MNT or MR shall be taken to the
CTA En Banc by petition for review as provided in **Rule 43 of the Rules of
Court (Sec. 4, Rule 8, A.M. No. 05-11-07-CTA).
*The petition for review of a decision or resolution of the Court in Division
must be preceded by the filing of a timely MR or new trial with the Division
before appealing to CTA En Banc in its exercise of appellate jurisdiction (Sec.
1. Ibid.).
5. Appeal to the SC by Petition for review on certiorari: A party adversely affected
by a decision or ruling of the CTA en banc may appeal therefrom by filing with
the SC a verified petition for review on certiorari within 15 days from receipt
of a copy of the decision or resolution, as provided in Rule 45 of the Rules of
Court. If such party has filed a MR or for new trial, the period herein fixed shall
run from the party’s receipt of a copy of the resolution denying the motion for
reconsideration or for new trial (Sec. 1, Rule 16, A.M. No. 05-11-07-CTA).
6. Effect of Appeal: The MNT or MR filed before the Court shall be **deemed
abandoned if, during its pendency, the movant shall appeal to the SC (Sec. 1,
Ibid.).
[] Bar 2006: Melissa filed with the BIR a complaint for refund of taxes paid,
but it was not acted upon. So, she filed a similar complaint with the CTA raffled
to one of its divisions. Melissa's complaint was dismissed. Thus, she filed with the
CA a petition for certiorari under Rule 65. Does the CA have jurisdiction over
Melissa's petition? A: No. A decision of a division of the CTA is appealable
within 15 days to the CTA en banc. On the other hand, a party adversely
affected by a decision or ruling of the CTA en banc may file with the SC a
verified petition for review on certiorari pursuant to Rule 45 of the Rules.
***RA 9282 expanded the jurisdiction of the CTA and elevated the same
to the level of a collegiate court equivalent to the rank of the CA. Hence, the
CA no longer has jurisdiction to review the decisions of the CTA en banc.
l) Review of final judgments or final orders of the Comelec & COA

1. via R65 according to R64, but limited to 30 days from notice (not 60 days).
*******There is no mode of appeal from Comelec & COA decisions, only a
mode of review.
2. Note that for CSC (the third constitutional commission), it’s an appeal (not
review) under R43 filed with the CA.
3. A judgment, resolution or final order of the COMELEC and the COA may be
brought by the aggrieved party to the SC on certiorari under Rule 65 by filing the
petition within 30 days from notice of the judgment or final order (Sec. 2, Rule
64). On the other hand, judgments, final orders or resolutions of the CSC may be
taken to the CA under Rule 43 of the Rules of Court (Sec. 1, 3 Rule 43).
m) Review of final judgments or final orders of the Ombudsman

1. Distinguish the cases decided by the OMB527******
a. administrative/disciplinary: mode of appeal to CA under R43 [Fabian
vs. Disierto]
b. criminal case where OMB found probable cause: no mode of appeal, but a
mode of review by way of R65: GADALEJ.
2. Jurisdiction of CA to review the decisions in criminal and administrative cases
of the Ombudsman:
a. In administrative disciplinary cases, the rulings of the Office of the
Ombudsman are appealable to the CA under Rule 43.
b. Where the findings of the ombudsman on the existence of probable
cause in criminal cases is tainted with grave abuse of discretion amounting to lack
or excess of jurisdiction, the aggrieved party may file a petition for certiorari with
the SC under Rule 65 (Enemecio v. Office of the Ombudsman, G.R. No. 146731,
January. 13, 2004).
*In criminal cases, the ruling of the Ombudsman shall be elevated to the SC
by way of Rule 65.
3. Remedy of a Party aggrieved by the Decision of the Sandiganbayan: Decisions
and final orders of the Sandiganbayan shall be appealable to the SC by way of
certiorari under Rule 45 raising pure questions of law (Sec. 1, Rule 45).
527
Q: Does the Court of Appeals have jurisdiction to review the Decisions in criminal and
administrative cases of the Ombudsman? 2.5% (2006 bar Question) SUGGESTED ANSWER:
*****The Court of Appeals can only review the Decisions of the Ombudsman in
administrative cases in an appeal by petition for review under Rule 43 of the 1997 Revised Rules
of Civil Procedure. It has no jurisdiction to review Decisions of the Ombudsman in criminal cases,
the proper remedy being to file with the Supreme Court an original petition for certiorari under Rule 65
(Fabian v. Ombudsman Desierto, 295 SCRA 470 [1998J; Kuizon v. Ombudsman Desierto, 354 SCRA
158 [200lj: Mendoza- Arce v. Ombudsman, 380 SCRA 325 [20021).
n) Review of final judgments or final orders of the NLRC

1. *****There is no mode of appeal but only review under R65 to the CA [St
Martin’s Funeral Homes case]
2. The remedy is to promptly move for the reconsideration of the decision and
if denied, to timely file a special civil action of certiorari under Rule 65 within 60
days from notice of the decision. In observance of the doctrine of hierarchy of
courts, the petition for certiorari should be filed in the CA (St. Martin Funeral
Homes v. NLRC, G.R. No. 130866, September 16, 1998).
3. Those judgments and final orders or resolutions of the *****Employees
Compensation Commission should be brought to the CA through a petition for
review under Rule 43.
o) Review of final judgments or final orders of quasi-judicial agencies

1. RULE 43: Appeals From Quasi-Judicial Agencies to the CA
*NB: Quasi-judicial agency: It is an organ of the government other than a
court and other than a legislature, which affects the rights of private parties
through either adjudication or rule-making.
2. NB: ****Decision of DOJ: to CA via R65
3. RULE 43. Appeals From Quasi-Judicial Agencies to the Court of Appeals
Section 1. Scope. — This Rule shall apply to appeals from awards,
judgments, final orders or resolutions of or authorized by any QUASI-
JUDICIAL AGENCY in the exercise of its quasi-judicial functions. Among
these agencies are the
a. Civil Service Commission,528
b. Central Board of Assessment Appeals,529
c. Securities and Exchange Commission,
d. **Office of the President,
d. Land Registration Authority,
528
A party aggrieved by an interlocutory order of the Civil Service Commission (CSC) filed a petition
for certiorari and prohibition with the Court of Appeals. May the Court of Appeals take cognizance
of the petition? (2011 BAR)
(A) Yes, provided it raises both questions of facts and law.
(B) No, since the CSC Chairman and Commissioners have the rank of Justices of the Court of
Appeals.
(C) No, since the CSC is a Constitutional Commission.
(D) Yes, since the Court of Appeals has jurisdiction over the petition concurrent with the
Supreme Court.
529
State the steps for bringing up to the Supreme Court: (1994 Bar Question) xxx a decision of the
Board of Assessment Appeals of the Province of Rizal. xxx Answer: xxx
To bring up a decision of the Board of Assessment Appeals of the Province of Rizal to the
Supreme Court, it must first be brought to the Central Board of Assessment Appeals, after which
the decision of the CBAA may be brought to the Supreme Court In a special civil action for certiorari
[TOM: first file a petition for review under Rule 43 with the CA; then appeal by certiorari to SC under
Rule 45]
e. Social Security Commission,

f. Civil Aeronautics Board,
g. Bureau of Patents, Trademarks and Technology Transfer,
h. National Electrification Administration,
i. Energy Regulatory Board,
j. National Telecommunications Commission,
k. Department of Agrarian Reform under Republic Act No. 6657,
l. Government Service Insurance System,
m. Employees Compensation Commission,
n. Agricultural Invention Board,
o. Insurance Commission,
p. Philippine Atomic Energy Commission,
q. Board of Investments,
r. Construction Industry Arbitration Commission, and
s. voluntary arbitrators authorized by law. (n)
4. Where to appeal from judgments and final orders of quasi- judicial bodies:
Appeals from judgment and final orders of quasi- judicial bodies/agencies
enumerated in Rule 43 are now required to be brought to the CA under the
requirements and conditions set forth in Rule 43 (Carpio v. Sulu Resource Dev.
Corp., G.R. No. 148267, August 8, 2002).
5. Issues raised on appeal: The appeal under Rule 43 may raise issues involving
questions of fact, of law or mixed questions of fact and law (Sec. 3, Rule 43).
***Rule 43 is not applicable where the petition contains an allegation that
the challenged resolution is patently illegal and was issued with grave abuse
of discretion and beyond respondent’s jurisdiction. The appropriate remedy is
Rule 65 on certiorari.
6. Effect of appeal on the award, judgment, final order or resolution: The appeal
shall not stay the award, judgment, final order or resolution sought to be reviewed
unless the CA shall direct otherwise upon such terms as it may deem just (Sec.
12, Rule 43).
7. Remedy of a party aggrieved by the decision of a quasi-judicial agency—The
aggrieved party must file a verified petition for review under Rule 43 in 7 legible
copies within 15 days from:
a. Notice of the award, judgment, final order or resolution; or
b. Date of publication, if publication is required by law for its effectivity; or
c. Denial of petitioner’s MNT or MR (Sec. 4,
Rule 43).
***The appeal may involve questions of fact, of law, or mixed questions of
fact and law (Sec. 3, Ibid.).
8. Contents of comment to the petition—The comment shall:
a. Point out the insufficiencies or inaccuracies in petitioner’s statement of
b. State the reasons why the petition should be denied or dismissed (Sec. 9
Rule 43).
**It shall be filed within 10 days from notice in 7 legible copies and
accompanied by clearly legible certified true copies of such material portions of
the record referred to therein together with other supporting papers.
9. Extension of time to file Petition for Review [TOM: this refers to extension
of time to file a petition—only SC can extend the time to file an MR]: Upon
proper motion and the payment of the full amount of the docket fee before the
expiration of the reglementary period, the CA may grant additional period of 15
days only within which to file a petition for review. No further extension shall be
granted except for the most compelling reason and in no case to exceed 15 days
(Sec. 4, Rule 43).
10. Appeal from RTC as appellate court under Rule 42 vs. Appeal from quasi-
judicial agencies under Rule 43
RTC as Appellate Court (Rule 42) Appeal from Quasi-judicial agencies (Rule 43)
Decision is stayed by an GR: Decision is immediately executory. It is not stayed by an appeal;

appeal. XPN: CA shall direct otherwise upon such terms as it may deem just.
Factual findings not Factual findings are conclusive upon CA if supported by substantial
conclusive to CA. evidence.
MORE ON RULE 43
Section 2. Cases not covered. — This Rule shall not apply to judgments or
final orders issued under the Labor Code of the Philippines. (cf. infra)
Section 3. Where to appeal. — An appeal under this Rule may be taken to the
Court of Appeals within the period and in the manner herein provided, whether
the appeal involves **QUESTIONS OF FACT, OF LAW, OR MIXED
QUESTIONS OF FACT AND LAW. (n)
Section 4. Period of appeal. — The appeal shall be taken **within fifteen
(15) days from notice of the award, judgment, final order or resolution, or **from the
date of its last publication, if publication is required by law for its effectivity, or of the
denial of petitioner's motion for new trial or reconsideration duly filed in accordance with
the governing law of the court or agency a quo. **Only one (1) motion for
reconsideration shall be allowed. **Upon proper motion and the payment of
the full amount of the docket fee before the expiration of the reglementary
period, the Court of Appeals may grant an ADDITIONAL PERIOD of fifteen (15)
days only within which to file the petition for review. No further extension
shall be granted except for the MOST COMPELLING REASON and in no
case to exceed fifteen (15) days. (n)
Section 5. How appeal taken. — Appeal shall be taken by filing a
VERIFIED PETITION FOR REVIEW in seven (7) legible copies with the
Court of Appeals, with proof of service of a copy thereof on the adverse party
and on the court or agency a quo. The original copy of the petition intended for
the Court of Appeals shall be indicated as such by the petitioner.

Upon the filing of the petition, the petitioner shall pay to the clerk of court
of the Court of Appeals the docketing and other lawful fees and deposit the
sum of P500.00 for costs. Exemption from payment of docketing and other
lawful fees and the deposit for costs may be granted by the Court of Appeals
upon a verified motion setting forth VALID GROUNDS therefor. If the Court of Appeals
denies the motion, the petitioner shall pay the docketing and other lawful fees
and deposit for costs within fifteen (15) days from notice of the denial. (n)
Section 6. Contents of the petition. — The petition for review shall
(a) state the full names of the parties to the case, without impleading the
court or agencies either as petitioners or respondents;
(b) contain a concise statement of the facts and issues involved and the
grounds relied upon for the review;
(c) be accompanied by a clearly legible duplicate original or a certified
true copy of the award, judgment, final order or resolution appealed from, together with
certified true copies of such material portions of the record referred to therein and
other supporting papers; and
(d) contain a sworn certification against forum shopping as provided in
the last paragraph of section 2, Rule 42.
e. The petition shall state the specific material dates showing that it was
filed within the period fixed herein. (2a)
Section 7. Effect of failure to comply with requirements. — The failure of the
petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and the documents which should
accompany the petition shall be **SUFFICIENT GROUND FOR THE
DISMISSAL thereof. (n)
Section 8. Action on the petition. — The Court of Appeals may
a. require the respondent to file a comment on the petition not a motion
to dismiss, within ten (10) days from notice, or
b. **dismiss the petition if it finds the same to be patently without merit,
prosecuted manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration. (6a)
Section 9. Contents of comment. — The comment shall be filed within ten
(10) days from notice in seven (7) legible copies and accompanied by clearly
legible certified true copies of such material portions of the record referred to
therein together with other supporting papers. The comment shall
(a) point out insufficiencies or inaccuracies in petitioner's statement of
(b) state the reasons why the petition should be denied or dismissed.
A copy thereof shall be served on the petitioner, and proof of such
service shall be filed with the Court of Appeals. (9a)
Section 10. Due course. — If upon the filing of the comment or such
other pleadings or documents as may be required or allowed by the Court of

Appeals or upon the expiration of the period for the filing thereof, and on the
records the **Court of Appeals finds prima facie that the court or agency
concerned has committed errors of fact or law that would warrant reversal or
modification of the award, judgment, final order or resolution sought to be
reviewed, it may GIVE DUE COURSE to the petition; otherwise, it shall
DISMISS the same. **The FINDINGS OF FACT of the court or agency concerned,
WHEN SUPPORTED BY SUBSTANTIAL EVIDENCE, shall be BINDING on the
Court of Appeals. (n)
Section 11. Transmittal of record. — Within fifteen (15) days from notice
that the petition has been given due course, the Court of Appeals may require
the court or agency concerned to transmit the original or a legible certified
true copy of the entire record of the proceeding under review. The record to be
transmitted may be abridged by agreement of all parties to the proceeding. The
Court of Appeals may require or permit subsequent correction of or addition
to the record. (8a)
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. (10a)
Section 13. Submission for decision. — If the petition is given due course, the Court
of Appeals may SET THE CASE FOR ORAL ARGUMENT or REQUIRE THE
PARTIES TO SUBMIT MEMORANDA within a period of fifteen (15) days from
notice. The case shall be DEEMED SUBMITTED FOR DECISION upon the filing
of the last pleading or memorandum required by these Rules or by the court of
Appeals. (n)
———————————————————————————————
3.16.3. Relief from judgments, orders and other proceedings [Rule 38]
1. It is a legal remedy whereby a party seeks to SET ASIDE a judgment
rendered against him by a court whenever he was unjustly deprived of a hearing
or was prevented from taking an appeal because of fraud, accident, mistake
or excusable neglect (Sec. 1, Rule 38; Quelnan v. VHF Philippines, G.R. No.
138500, September 16, 2005).
*****It is an equitable remedy that is allowed only in exceptional cases
when there is no other available or adequate remedy (Trust International Paper
Corp. v. Pelaez, G.R. No. 164871, Aug. 22, 2006).
2. GROUNDS to avail of this remedy:
a. 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 (Sec. 1, Rule 38); or
[] Here, the petition shall be filed in such court and in the same
case (not in another or higher court). The petition shall pray that the judgment,
order or proceeding be SET ASIDE (Sec. 1, Rule 38).
b. The petitioner has been prevented from taking an appeal by fraud,

accident, mistake, or excusable negligence (Sec. 2, Rule 38).
*Here, the petition shall likewise be filed in such court and in the
same case (not in another or higher court) but the prayer this time is that the
APPEAL BE GIVEN DUE COURSE (Sec. 2, Rule 38).
c. ******added by TOM: the judgment/order is already final and executory,
that is, no longer appealable.530
3. Bar 1990: *****Motion for new trial/reconsideration v. Petition for Relief from
judgment:
Motion for New Trial / Reconsideration (Rule 37) Petition for Relief from Judgment (Rule 38)
Available before judgment becomes final and Available after judgment has become final and
executory. executory.
Applies to judgments or final orders only. Applies to judgments, final orders and other
proceedings:
Grounds—MNT: 1. Fraud, accident, mistake or Grounds: (FAME) Fraud, accident, mistake or
excusable negligence (FAME); Newly discovered excusable negligence.
evidence; MR: 1. The damages awarded are
excessive; 2. That the evidence is insufficient to
justify the decision or final order, or 3. That the
decision or final order is contrary to law (Sec. 1).
Filed within the time to appeal. Filed within 60 days from knowledge of the
judgment (not from the date he actually read the
same: Perez v. Araneta) and within 6 months
from entry of judgment**
Legal Remedy Equitable Remedy
The order of denial is not appealable. The remedy The order of denial is not appealable; the remedy
is to appeal from the judgment or final order on is appropriate special civil action under Rule
the merits. 65**
Motion need not be verified. Petition must be verified.
*NB: A party who has filed a timely motion for new trial ****CANNOT
FILE A PETITION FOR RELIEF after the former is denied. The two
remedies are EXCLUSIVE of one another (Sec. 9, Rule 38; Francisco v. Puno,
G.R. No. L-55694, October 23, 1981).
4. Who may avail: A petition for relief from judgment together with a MNT and
530
[] Bar 2007: May a defendant who has been declared in default right away avail of a petition for
relief from the judgment subsequently rendered in the case?
NO. The remedy of **petition for relief from judgment is available ONLY when the
judgment or order in question is ALREADY FINAL AND EXECUTORY, i.e., no longer appealable. It is
an equitable remedy allowed only in exceptional cases from final judgments or orders where no other
remedy is available (Palmares, et al. v. Jimenez, et al., G.R. No. L-4513, Jan. 31, 1952). It will **not
be entertained when the proper remedy is appeal or certiorari (Fajardo v. Bayona, et al., G.R. No.
L-8314, March 23, 1956).
MR are remedies available *****ONLY TO PARTIES in the proceedings where

the assailed judgment is rendered. A person who was never a party to the case, or
even summoned to appear therein, cannot avail of a petition for relief from
judgment (Alaban v. CA, G.R. No. 156201, September 23, 2005). NB: it is
applicable to probate cases.531
5. Proceedings after an answer is filed:
a. After the filing of the answer or the expiration of the period therefor,
the court shall HEAR the petition and if after such hearing it finds that the
allegations thereof are not true, the petition shall be DISMISSED.
b. If the allegations are true, the court shall SET ASIDE the judgment, final
order or proceeding complained of upon such terms as may be just. Thereafter, the
case shall STAND as if such judgment, final order or proceedings had never been rendered,
issued or taken. The court shall then proceed to HEAR AND DETERMINE the
case as if a timely motion for new trial or reconsideration had been granted
by it (Sec. 6, Rule 38).
*NB: ****Failure to file an answer to the petition for relief DOES NOT
CONSTITUTE DEFAULT—even without such answer, the court will still have to
hear the petition and determine its merits (Regalado, 2010).
6. Preliminary Injunction available pending the resolution of the Petition for
Relief: The court may grant such preliminary injunction as may be necessary for
the preservation of the rights of the parties upon the filing of a BOND in favor
of the adverse party (Sec. 5, Rule 38).
*The bond is conditioned that if the petition is dismissed or the petitioner fails on
the trial of the case upon its merits, he will pay the adverse party all damages and
costs that may be awarded to him by reason of issuance of such injunction or the
other proceedings following the petition (Ibid.).
7. Lien acquired over the property is NOT discharged by a subsequent issuance of a
writ of preliminary injunction: ******Where a writ of execution was already
issued and levy was made before the petition for relief was filed, the lien that
may have been acquired over the property is not discharged by the subsequent
issuance of a writ of preliminary injunction. Therefore, if the petition is denied,
531
A. May an order denying the probate of a will still be overturned after the period to appeal
therefrom has lapsed? Why? (3%) Yes, an order denying the probate of a will may be overturned
after the period to appeal therefrom has lapsed. A petition for relief may be filed on the grounds of
fraud, accident, mistake or excusable negligence within a period of sixty (60) days after the
petitioner learns of the judgment or final order and not more than six (6) months after such judgment
or final order was entered [Rule 38, secs. 1 end 3; Soriano v. Asl, 100 Phil. 785 (1957)]. An action for
annulment may also be filed on the ground of extrinsic fraud within four (4) years from its discovery,
and if based on lack of Jurisdiction, before it is barred by laches or estoppel. (Rule 47, secs. 2 and 3)
B. What should the court do if, in the course of intestate proceedings, a will is found and it is
submitted for probate? Explain. (2%) If a will is found in the course of intestate proceedings and it is
submitted for probate, the intestate proceedings will be suspended until the will is probated.
Upon the probate of the will, the intestate proceedings will be terminated. (Rule 32, sec. 1).
the COURT HAS THE POWER TO REINSTATE THE WRIT OF EXECUTION (Ayson
v. Ayson, G.R. No. L-10687, May 24, 1957).532
8. Execution of the judgment may proceed even if the Order denying the Petition
for Relief is pending appeal: Unless a writ of preliminary injunction has been issued,
execution of the judgment shall proceed even if the order denying the petition for
relief is pending on appeal. Said writ may be sought either in the trial or appellate
courts (Service Specialists, Inc. v. Sheriff of Manila, at. al., G.R. No. 74586,
October 17, 1986).
9. ******Order granting Petition for Relief is INTERLOCUTORY and non-
appealable533 [But Rule 41 refers to orders DENYING a petition for relief].
******NB: The dismissal of a petition for relief also dissolves the writ of
532
Q: The lifetime of a writ of execution is sixty (60) days from its receipt by the officer required to
enforce it. Suppose on the 60th day of the life of the writ the sheriff levied on the property of the
judgment debtor and sold it only a month after. Is the sale valid? Explain. (1995 Bar Question)
Answer: The writ of execution may be levied at any time up to and including the last day of the
writ. ****After the writ has been levied on the property within the lifetime of the writ, it may be sold
thereafter. (Alagar us. Pio de Roda, 29 Phil. 129)
Alternative Answer: The property may even be sold beyond the five-year period within which
the judgment may be executed on motion, but not beyond the ten-year period of prescription of
judgments. [Government vs. Echaus, 71 Phil. 318; Jalandoni us. Philippine National Bank, 105 SCRA 102)
533
Q: The defendant was declared in default in the RTC for his failure to file an answer to a complaint
for a sum of money. On the basis of the plaintiff’s ex parte presentation of evidence, judgment by
default was rendered against the defendant. The default judgment was served on the defendant on
October 1, 2001. On October 10, 2001, he filed a verified motion to lift the order of default and to set
aside the judgment. In his motion, the defendant alleged that, immediately upon receipt of the
summons, he saw the plaintiff and confronted him with his receipt evidencing his payment and that
the plaintiff assured him that he would instruct his lawyer to withdraw the complaint. The trial court
denied the defendant’s motion because it was not accompanied by an affidavit of merit. The defendant
filed a special civil action for certiorari under Rule 65 challenging the denial order.
A. Is certiorari under Rule 65 the proper remedy? Why? (2%) The petition for certiorari under
Rule 65 filed by the defendant is the proper remedy because appeal is not a plain, speedy and
adequate remedy in the ordinary course of law in appeal, the defendant in default can only
question the decision in the light of the evidence of the plaintiff. The defendant cannot invoke
the receipt to prove payment of his obligation to the plaintiff. ALTERNATIVE ANSWER: Under
ordinary circumstances, the proper remedy of a party wrongly declared in default is either to appeal
from the judgment by default or to file a petition for relief from judgment [Jeo, Inc. v. Court of
Appeals, 251 SCRA3S1 (1995)].
B. Did the trial court abuse its discretion or act without or in excess of its jurisdiction in
denying the defendant's motion to lift the order of default and to set aside the default judgment?
Why? (3%) (2002 Bar Question) Yes, the trial court gravely abused its discretion or acted without
or in excess of jurisdiction in denying the defendant’s motion because it was not accompanied
by a separate affidavit of merit, in his verified motion to lift the order of default and to set aside the
judgment, the defendant alleged that immediately upon receipt of the summons, he saw the
plaintiff and confronted him with his receipt showing payment and that the plaintiff assured him
that he would instruct his lawyer to withdraw the complaint. *****Since the good defense of the
defendant was already incorporated in the verified motion, there was no need for a separate
affidavit of merit [Capuz v. Court of Appeals, 233 SCRA 471 (1994); Mago v. Court of Appeals, 303
SCRA 600 (1999)]
preliminary injunction staying the enforcement of the judgment, even if the

dismissal is not yet final.534
10. Form and contents of Petition for Relief*****
a. The petition for relief must be verified;
b. It must be supported by affidavit showing FAME relied upon; and
c. The affidavit of merit accompanying the petition must also show facts
constituting the petitioner’s GOOD OR SUBSTANTIAL cause of action or defense (Sec. 3,
Rule 38). NB: Affidavit of Merit recites the nature and character of FAME on
which the motion is based. It serves as the jurisdictional basis for the court to
entertain a petition for relief. The ****absence of an affidavit of merits is a
FATAL DEFECT and warrants denial of the petition (Fernandez v. Tan Tiong
Tick, G.R. No. L-15877, April 28, 1961), unless the facts required to be set out in the
affidavit of merits also appear in the verified petition (Fabar, Inc. v. Rodelas, G.R. No. L-
46394, October 26, 1977).
11. Issuance by the Court of the Order to Answer: When the petition is sufficient
in form and substance to justify relief, the court in which it is filed, shall issue an
order requiring the adverse parties to answer the same within 15 days from the
receipt thereof (Sec. 4, Rule 38).
*The order shall be served in such manner as the court may direct, together
with copies of the petition and the accompanying affidavits (Ibid.).
12. When to file petition for relief from judgment******
a. Within 60 days after the petitioner acquired knowledge of the order,
judgment or proceedings and not from the date he actually read the same
(Perez v. Araneta, G.R. No. L-11788, May 16, 1958).
b. Not more than 6 months from entry of such judgment, order or other
*******These two periods must CONCUR535 and are also not extendible
534
A default judgment was rendered by the RTC ordering D to pay P a sum of money. The
judgment became final, but D filed a petition for relief and obtained a writ of preliminary
injunction staying the enforcement of the judgment. After hearing, the RTC dismissed D's petition,
whereupon P immediately moved for the execution of the judgment in his favor. Should P’s
motion be granted? Why? (3%) xxx SUGGESTED ANSWER:
P’s immediate motion for execution of the judgment in his favor should be granted because
the dismissal of D’s petition for relief also dissolves the writ of preliminary injunction staying the
enforcement of the judgment, even if the dismissal is not yet final. [Golez v. Leonidas, 107 SCRA 187
(1981)].
535
Q: A money judgment against Ernesto Golem in favor of Geraldine Bolos was rendered by the
Regional Trial Court of Binan, Laguna. The decision was received by Atty. Jose Maco, counsel for
Golem, on March 4. 1990. Atty. Maco did not inform Golem about the judgment. On March 10, 1990,
Atty. Maco migrated with his entire family to California, U.S.A. Entry of judgment was made on
March 20, 1990, Golem learned of the decision only on June 17, 1990 when the court sheriff
arrived at his residence to levy on his properties. You are consulted by Golem on July 31, 1990.
Assuming Golem has a. meritorious case, what legal remedies may you avail of in order to protect his
interests? Explain your answer. (1990 BarQuestion) Answer:
and never interrupted (Quijano v. Tameta, G.R. No. L-16473, April 20, 1961).
These periods cannot be subject to a condition or a contingency as they are
devised to meet a condition or a contingency (Vda. De Salvatierra v. Garlitos, 103
Phil. 157).
———————————————————————————————
3.16.4. Annulment of judgments or final orders and resolutions [Rule 47]

1. Section 1. Coverage. — This Rule shall govern the annulment by the Court of
Appeals of judgments or final orders and resolutions in CIVIL ACTIONS of
Regional Trial Courts for which the ORDINARY REMEDIES of new trial, appeal,
petition for relief or other appropriate remedies are NO LONGER
AVAILABLE THROUGH NO FAULT OF THE PETITIONER. (n)
[] *****A petition for annulment of judgment is a recourse that is
EQUITABLE in character. It is independent of the case and is “allowed only in
exceptional cases as where there is no available or other adequate remedy.”536
An action for annulment of judgment may be filed to assail Regional Trial Court
judgments when resort to other remedies can no longer be had through no fault
of petitioner. Section 1 of Rule 47 of the Rules of Civil Procedure provides: An
action for annulment of judgment may be based on only two grounds, supra.
2. It is a remedy in law independent of the case where the judgment sought to be

annulled was rendered.
a. Like a petition for relief, an action for annulment of a judgment is a
recourse equitable in character, allowed only in exceptional cases where there is no
available adequate remedy (Ramos v. Combong, G.R. No. 144273, October 20,
2005).
b. A co-equal court cannot annul the final judgment of a similar court.
***CA has exclusive jurisdiction over actions for annulment of judgments of
RTC. An action to annul a judgment or final order of MTC shall be filed in the
RTC having jurisdiction in the former and it shall be treated as an ordinary civil
action (Secs. 1 &10, Rule 47).
*****I will file a petition for relief from judgment with the Regional Trial Court of Binan,
Laguna. Such a petition should be filed within 60 days after the petitioner learns of the judgment
and not more than 6 months after its entry. (Sec. 3 of Rule 38). Since the entry of judgment was
made on March 20.1990, the period of 6 months had not yet expired on July 31, 1990 when I was
consulted by Golem.
While the period of 60 days is ordinarily counted from notice to the lawyer, this case may
be an exception because of the gross irresponsibility of Atty. Maco who did not inform Golem
about the judgment and migrated to California. Hence, the said period should be counted from July
17, 1990 when Golem actually learned of the Judgment. (PHHC v. Tiongco, 12 SCRA 471)
536
[] Annulment of judgment is a recourse equitable in character, allowed ONLY in
EXCEPTIONAL cases as where there is no available or other adequate remedy. Grounds of
extrinsic fraud and lack of jurisdiction or denial of due process. Biaco vs. Philippine Countryside Rural
Bank, February 8, 2007.
3. Purpose: To have the final and executory judgment set aside so that there will
be renewal of litigation.
4. Who may file: An action for annulment *****can be filed by one who was
not a party to the action in which the assailed judgment was rendered. It is a
remedy in law independent of the case where the judgment sought to be
annulled is promulgated (Villanueva v. Nite, G.R. No. 148211, July 25, 2006).
****A person need not be a party to the judgment sought to be
annulled. What is essential is that he can prove his allegation that the judgment
was obtained by the use of fraud and collusion and he would be adversely
affected thereby (Islamic Da’wah Council v. CA, G.R. No. 80892, September 29,
1989).
5. When available: The remedy of annulment of judgment may be availed of when
the ordinary remedies of new trial, appeal, petition for relief or other
appropriate remedies are no longer available through no fault of the petitioner (Sec.
1, Rule 47). NB: ***If the petitioner fails to avail of those other remedies without
sufficient justification, he cannot resort to the action for annulment provided in
the Rules, otherwise he would benefit from his own inaction or negligence
(Regalado, 2012).
6. Where filed:
Judgments of RTC Judgments of MTC
Filed with the CA Filed with the RTC

Basis – It has exclusive original jurisdiction over Basis – RTC as a court of general jurisdiction
said action under Rule 47 under Sec. 19 (6), BP 129
CA may dismiss the case outright; it has the *****RTC has no such discretion. It is
discretion on whether or not to entertain the required to consider it as an ordinary civil
petition. action.
7. Annulment of Judgments of quasi-judicial bodies: Annulment of judgment does

*****not apply to judgments rendered by quasi-judicial bodies. It does not
apply also to decisions or orders of the Ombudsman in administrative cases
whose decisions or orders may be appealed to the CA under Rule 43
(Macalalag v. Ombudsman, G.R. No. 147995, March 5, 2004).
The silence of BP 129 on the jurisdiction of the CA to annul judgments or
final orders and resolutions of quasi-judicial bodies like the DARAB indicates its
lack of such authority.
8. Contents of the Petition—
a. Verified petition alleging;
i. The facts and the law relied upon for annulment;
ii. As well as those supporting the petitioner’s good and substantial
cause of action or defense, as the case may be;
b. A certified true copy of the judgment or final order or resolution
intended for the court and indicated as such by the petitioner;
c. Affidavits of witnesses or documents supporting the cause of action or

defense;
d. Sworn certification against forum shopping (Sec. 4, Rule 47).
**The procedure in ordinary civil cases shall be observed. Should a trial be
necessary, the reception of the evidence may be referred to a member of the court
or a judge of a RTC (Sec. 6, Rule 47).
a) Grounds for annulment

[] Section 2. Grounds for annulment. — The annulment may be based ONLY on the
grounds of
1. EXTRINSIC FRAUD (EF)
a. EF is not valid if availed of or could have been availed of in a motion for
new trial or a petition for relief.537
Extrinsic or Collateral Fraud Intrinsic Fraud
It is the kind of fraud that prevents the It refers to the acts of a party at the trial that
aggrieved party from having a trial or prevents a fair and just determination of the case,
presenting his case to the court, or is used to and that could have been litigated and determined at the trial
procure the judgment without fair submission or adjudication of the case, such as falsification, false
of the controversy (Magno v. CA, et al., G.R. testimony and does not constitute a ground for
No. L-28486, September 10, 1981). new trial (Tarca v. Carretero, 99 Phil. 419).
b. EF refers to fraudulent acts committed by the prevailing party outside the
trial of the case, like keeping the losing party away from the court, including the
connivance of the party’s lawyer for his defeat.538 or the connivance of the other
party with the sheriff.539 Hence, the use of forged documents during trial is not an
extrinsic fraud (it does not preclude the other party from participation in the
proceedings).540
537
***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;
538
Extrinsic fraud exists when there is a fraudulent act committed by the prevailing party outside of the
trial of the case, whereby the defeated party was ***prevented from presenting fully his side of the case
by fraud or deception practiced on him by the prevailing party, as by keeping him away from court,
a false promise of a compromise; or where the defendant never had knowledge of the suit, being
kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without
authority assumes to represent a party and connives at his defeat; or where the attorney
regularly employed corruptly sells out his client’s interest to the other side. The overriding
consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having
his day in court.
539
*But there is extrinsic fraud here: Without ruling on petitioner’s allegation that her **husband and the
sheriff connived to prevent summons from being served upon her personally, we can see that
petitioner was denied due process and was not able to participate in the judicial foreclosure
proceedings as a consequence. The violation of petitioner’s constitutional right to due process arising
from want of valid service of summons on her warrants the annulment of the judgment of the trial
court.
540
The ***use of forged instruments during trial is NOT EXTRINSIC FRAUD because such
evidence does not preclude the participation of any party in the proceedings; EG: Petitioner’s
2. and LACK OF JURISDICTION.

a. It includes defective service of summons;541
b. But it may not always be available even if there are causes for annulling a
judgment like in the following cases:542
i. when the party has availed himself of the remedy of new trial,
appeal, petition for relief, or other appropriate remedy and lost; or
ii. when he has failed to avail himself of those remedies through his own
fault or negligence.”
iii. Also, lack of jurisdiction over the subject matter and over the
person of a party may be barred by estoppel by laches.543
3. From jurisprudence (not the Rules): Denial of due process544 (Alaban v. CA,
signature on the promissory notes was forged does not evince extrinsic fraud. Biaco vs. Philippine
Countryside Rural Bank, February 8, 2007
541
**Lack of jurisdiction being a valid ground for annulment of judgments, circumstances that negate
the court’s acquisition of jurisdiction — including defective service of summons — are causes for
an action for annulment of judgments.
542
However, this court had an occasion to say that an action for annulment of judgment **“may not
be invoked (1) where the party has availed himself of the remedy of new trial, appeal, petition for
relief, or other appropriate remedy and lost; or (2) where he has failed to avail himself of those remedies
through his own fault or negligence.” Thus, an action for annulment of judgment is NOT
ALWAYS readily available EVEN IF THERE ARE CAUSES FOR ANNULLING A JUDGMENT.
543
*Lack of jurisdiction over the subject matter and over the person – ***May be barred by
estoppels by laches, which is that failure to do something which should be done or to claim or
enforce a right at a proper time or a neglect to do something which one should do or to seek or
enforce a right at a proper time.
544
Q: Tom Wallis filed with the Regional Trial Court (RTC) a petition for Declaration of Nullity of
his marriage with Debi Wallis on the ground of psychological incapacity of the latter. Before filing
the petition, Tom Wallis had told Debi Wallis that he wanted the annulment of their marriage because
he was already fed up with her irrational and eccentric behaviour. However, in the petition for
declaration of nullity of marriage, the correct residential address of Debi Wallis was deliberately
not alleged and instead, the resident address of their married son was stated. Summons was
served by served by substituted service at the address stated in the petition. For failure to file an
answer, Debi Wallis was declared in default and Tom Wallis presented evidence ex-parte. The
RTC rendered judgment declaring the marriage null and void on the ground of psychological incapacity
of Debi Wallis. Three (3) years after the RTC judgment was rendered, Debi Wallis got hold of a
copy thereof and wanted to have the RTC judgment reversed and set aside. If you are the lawyer
of Debi Wallis, what judicial remedy or remedies will you take? Discuss and specify the ground or
grounds for said remedy or remedies. (2014)
A: Debi Wallis may file a Petition for Annulment of Judgment under Rule 47 of the Rules of
Court, on the grounds of lack of jurisdiction, extrinsic fraud and denial of the right to due
process (Leticia Diona v. Romeo Balange, G.R. No. 173589, January 7, 2013). An action for
annulment of judgment is a remedy in law independent of the case where the judgment sought to be
annulled was rendered. The purpose of such action is to have the final and executory judgment set
aside so that there will be a renewal of litigation. *****It is resorted to in cases where the ordinary
remedies of new trial, appeal, petition for relief from judgment, or other appropriate remedies
are no longer available through no fault of the appellant and is base on the grounds of extrinsic
fraud, and lack of jurisdiction (Aleban v. Court of Appeals, G.R. No. 156021, September 23, 2005).
Relative thereto, the act of Tom Wallis in deliberately keeping Debi Wallis away from the Court,
by intentionally alleging a wrong address in the complaint constitutes extrinsic fraud. Moreover, the
G.R. No. 156021, September 23, 2005).545
b) Period to file action [Sec 3]

******
1. If based on extrinsic fraud, the action must be filed WITHIN FOUR (4)
YEARS FROM ITS DISCOVERY;546
2. and if based on lack of jurisdiction, before it is barred by LACHES OR ESTOPPEL.
Estoppel Laches
failure of the Court to acquire jurisdiction over the person of the respondent, being an
indispensable party, necessitates the annulment of judgment of the Regional Trial Court. Likewise,
there is denial of the right to due process when Debi Wallis was not given an opportunity to be
heard in the case. Hence, the judgment rendered by the RTC may be annulled by the Court of
Appeals under Rule 47 of the Rules of Court. Moreover, it is evident that the ordinary remedies of
new trial, petition for relief or other appropriate remedies are no longer available through no
fault of Debi Wallis because she was able to obtain a copy of the Decision only three (3) years
after the same was rendered by the Trial Court. At any rate, *****the Court erred in declaring the
defendant in default because there is no default in a Petition for declaration of nullity of marriage
(Sec. 3, Rule 9). Thus, a Petition for Certiorari under Rule 65 of the Rules of Court could have been an
appropriate remedy within the reglementary period allowed by the Rules.
545
Q: B files a petition for cancellation of the birth certificate of her daughter R on the round of
the falsified material entries therein made by B’s husband as the informant. The RTC sets the case for
hearing and directs the publication of the order once a week for three consecutive weeks in a
newspaper of general circulation. Summons was served on the Civil Registrar but there was no
appearance during the hearing. The RTC granted the petition. R filed a petition for annulment of
judgment before the Court of Appeals, saying that she was not notified of the petition and hence,
the decision was issued in violation of due process. B opposed saying that the publication of the
court order was sufficient compliance with due process. Rule. (5%) (2007 Bar Question)
SUGGESTED ANSWER: R’s petition for annulment of judgment before the Court of
Appeals should be granted. Although there was publication of the court order acting the petition to
cancel the birth certificate, reasonable notice still has to be served on R as she has an a interest
affected by the cancellation. (Secs. 3 and 4, Rule 108, Rules of Court) She is an indispensable party
(Republic v. Benemerito, 425 SCRA 488 [2004]), and ******notice has to be served on her, not for
the purpose of vesting the court with jurisdiction, but to comply with the requirements of fair
play and due process (Ceruila v.Delantar, 477 SCRA 134 [2005]).
546
A decision of the Regional Trial Court adverse to Delia was received by her counsel on 13 January
1994. As Delia was leaving for Canada she forthwith instructed her counsel to appeal because
according to her she was prevented from fully presenting her case in the court through fraudulent acts
of the prevailing party. When Delia returned from abroad on 1 August 1994 she discovered that her
case was not appealed as her counsel had died a day after she left. Moreover, the other party has filed a
motion for issuance of a writ of execution which remains pending in court.
As the new counsel of Delia, what course or courses of action will you pursue to protect her interest?
Discuss fully. (1995 Bar Question)
Answer: I would file an action for annulment of the judgment with the Court of Appeals on
the ground of extrinsic and collateral fraud because my client was prevented from fully presenting
her case in court through fraudulent acts of the prevailing party. (Sec. 9(2), BP 129)
Alternative Answer: I would file a petition for relief under Rule 38 on the ground that my
client’s failure to appeal on time was due to the death of her lawyer one day after she left for Canada.
[TOM: he cannot file a petition for relief because more than 6 months have passed from entry of
judgment].
It is that failure to do something that It is such inexcusable delay in the assertion of

should be done or to claim or enforce a right rights or a failure to prosecute a claim, within a
at a proper time or a neglect to do something reasonable and proper period, which warrants the
which one should do or enforce a right at a presumption that the party has waived his right
proper time (Regalado, 2010 ).
3. Section 4. Filing and contents of petition. — The action shall be commenced

a. by filing a VERIFIED PETITION alleging therein WITH
PARTICULARITY the facts and the law relied upon for annulment, as well as those
supporting the petitioner's GOOD AND SUBSTANTIAL cause of action or
defense, as the case may be.
b. The petition shall be filed in seven (7) clearly legible copies, together with
sufficient copies corresponding to the number of respondents.
c. A certified true copy of the judgment or final order or resolution shall
be attached to the original copy of the petition intended for the court and
indicated as such by the petitioner.
d. The petitioner shall also submit together with the petition affidavits of
witnesses or documents supporting the cause of action or defense and a sworn
certification that he has not theretofore commenced any other action involving
the same issues in the Supreme Court, the Court of Appeals or different divisions
thereof, or any other tribunal or agency if there is such other action or proceeding,
he must state the status of the same, and if he should thereafter learn that a similar
action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any other tribunal or agency,
he undertakes to promptly inform the aforesaid courts and other tribunal or
agency thereof within five (5) days therefrom. (n)
4. Section 5. Action by the court. —
a. Should the court find no substantial merit in the petition, the same may
be DISMISSED OUTRIGHT with specific reasons for such dismissal.
b. Should prima facie merit be found in the petition, the same shall be
GIVEN DUE COURSE and SUMMONS shall be served on the respondent.
(n)
5. Section 6. Procedure. — The PROCEDURE IN ORDINARY CIVIL CASES shall be
observed. Should trial be necessary, the reception of the evidence may be referred
to a member of the court or a judge of a Regional Trial Court. (n)
c) Effects of judgment of annulment

1. If based on lack of jurisdiction - It shall have the effect of SETTING ASIDE the
questioned judgment or final order and rendering the same null and void but
the judgment of annulment is WITHOUT PREJUDICE TO THE
REFILLING of the original action in the proper court (Sec.7, Rule 47).
2. If based on extrinsic fraud- The court, upon motion, may ORDER THE
TRIAL COURT TO TRY the case as if a motion for new trial was granted (Sec. 9,
Rule 47).
3. Remedy in case of annulment on the ground of lack of jurisdiction: In case of
lack of jurisdiction over the subject matter of the case, the aggrieved party may
REFILE the action in the proper court. Where however, the reason for such
annulment was because of lack of jurisdiction over the defendant, the action may
be refiled in the same original court provided it has jurisdiction over the subject-
matter and is the court of proper venue or no issue on venue is raised (Regalado,
2010).
4. Section 8. Suspension prescriptive period. — The prescriptive period for the
refiling of the aforesaid original action shall be DEEMED SUSPENDED from
the filing of such original action until the finality of the judgment of annulment.
However, the **prescriptive period shall NOT be suspended where the
extrinsic fraud is ATTRIBUTABLE TO THE PLAINTIFF in the original action. (n)
**The prescriptive period for the refiling of the action shall be deemed suspended from
the filing of such original action until the finality of the judgment of annulment. But shall not
however, be suspended where the extrinsic fraud is attributable to the plaintiff in the
original action (Sec. 8, Rule 47).
*NB: For purposes of computing the prescriptive period within which the same original
action may be refiled as authorized by the Rules, the prescriptive period provided by law for
such type of action must first be considered. From that period shall be deducted the length of
time which transpired from the date when the action was originally filed in the trial court up to
the finality of the judgment which eventually annulled the questioned judgment of that trial
court. The resulting balance of the prescriptive period may then be availed of the by aggrieved
party for the refilling of the same action (Regalado, 2010).
5. Section 9. Relief available. — The judgment of annulment may include the
award of damages, attorney's fees and other relief.
If the questioned judgment or final order or resolution had already been
executed the court may issue such ORDERS OF RESTITUTION or
OTHER RELIEF as JUSTICE AND EQUITY may warrant under the
circumstances. (n)
6. Section 10. Annulment of judgments or final orders of Municipal Trial Courts. — An
action to annul a judgment or final order of a Municipal Trial Court shall be filed in the
Regional Trial Court having jurisdiction over the former. It shall be treated as
an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be
applicable thereto. (n)
———————————————————————————————
3.16.5. Collateral attack of judgments

1. Collateral attack: It is made in another action TO OBTAIN A DIFFERENT
RELIEF—an attack on the judgment is made as an incident in said action. This is
proper only when the judgment, ON ITS FACE IS NULL AND VOID, as
where it is patent that the court which rendered such judgment has NO
JURISDICTION (Co v. CA, G.R. No. 93687, May 6, 1991).
2. Direct attack on judgment: an INDEPENDENT ACTION must be filed to
challenge the validity of judgment whose NULLITY IS NOT PATENT on

its face.
3. DISTINCTION between a direct attack and a collateral attack:
DIRECT ATTACK COLLATERAL ATTACK
made through an action or proceeding the main made when, in another action to obtain a different
object of which is to annul, set aside or enjoin relief, an attack on the judgment is made as an
the enforcement of such judgment if not yet INCIDENT in said action (Co v. CA, G.R. No.
carried into effect; or if the property has been disposed 93687, May 6, 1991).
of, the aggrieved party may sue for recovery.
———————————————————————————————
3.17. Execution, satisfaction and effect of judgments [Rule 39]
EXECUTION 434
3.17.1. Difference between finality of judgment for purposes of appeal; for purposes of
execution 434
3.17.2. When execution shall issue 434
a) Execution as a matter of right 435
b) Discretionary execution <execution pending appeal> 435
3.17.3. How a judgment is executed 437
a) Execution by motion or by independent action 440
b) Issuance and contents of a writ of execution 440
c) Execution of judgments for money 443
d) Execution of judgments for specific acts 445
e) Execution of special judgments 448
f) Effect of levy on third persons 450
3.17.4. Properties exempt from execution 451
3.17.5. Proceedings where property is claimed by third persons 451
3.17.6. Rules on redemption 453
3.17.7. Examination of judgment obligor when judgment is unsatisfied 455
3.17.8. Examination of obligor of judgment obligor 457
3.17.9. Effect of judgment or final orders*** 458
3.17.10. Enforcement and effect of foreign judgments or final orders [Sec 48] 459
———————————————————————————————
EXECUTION
1. Execution is a PROCESS provided by law for the enforcement of a final
judgment.
2. It is FRUIT AND END of a suit (Cagayan de Oro Coliseum v. CA, G.R. No.
129713, Dec. 15, 1999; Ayo v. Violago-Isani, A.M. No. RTJ-99-1445, June 21,
1999).
3.17.1. Difference between finality of judgment for purposes of appeal; for

purposes of execution
Final Judgments for purposes of appeal Final Judgments for purposes of execution
Dispose of, adjudicate, or determine the Becomes final and executory by

rights of the parties. operation of law.
Still subject to appeal After lapse of period to appeal and no

appeal was perfected, no further
action can be had.
Execution of judgment is not a matter of Execution of judgment a matter of
right. right.
1. Final Judgment—The term “final” is used in two senses depending on whether

it is used on the issue of appeal ability or on the issue of binding effect (Regalado,
2010).
a. For the purposes of appeal, it refers to a judgment that disposes of a
case in a manner that leaves nothing more to be done by the court in respect
thereto. In this sense, a final judgment is distinguished from an interlocutory
order which does not finally terminate or dispose of the case (Rudecon Management
Corp. v. Singson, G.R. No. 150798, March 31, 2005).
b. For the purposes of Binding effect, the word “final” may refer to a
judgment that is no longer appealable and is already capable of being
executed because the period for appeal has elapsed without a party having perfected an
appeal or if there has been appeal, it has already been resolved by a highest possible
tribunal (PCGG v. Sandiganbayan, G.R. Nos. 151809-12, April 12, 2005). In this
sense, the judgment is commonly referred to as one that is FINAL AND
EXECUTORY.
2. 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. (4a)
Section 5. Effect of reversal of executed judgment. — Where the executed judgment is
REVERSED TOTALLY OR PARTIALLY, OR ANNULLED, on appeal or
otherwise, the trial court may, on motion, issue such ORDERS OF
RESTITUTION OR REPARATION OF DAMAGES as EQUITY AND
JUSTICE may warrant under the circumstances. (5a)
———————————————
3.17.2. When execution shall issue
a) Execution as a matter of right

1. When execution will issue as a matter of right:****
a. The judgment has become final and EXECUTORY (Sec. 1, Rule 39);
b. Judgment debtor has renounced or waived his right to appeal;
c. The period for appeal has lapsed without an appeal having been filed;
d. Having been filed, the appeal has been resolved and the records of the
case have been returned to the court of origin (Florendo v. Paramount
Insurance Corp, now MAA General Insurance Inc., G.R. No. 167976, January 20,
2010).
2. How issued: Once a judgment becomes final and executory, the prevailing party
can have it executed as a **matter of right, and the issuance of a writ of
execution becomes the MINISTERIAL DUTY of the court (Buaya v.
Stronghold Insurance Co., Inc., G.R. No. 139020, October 11, 2000).
3. But motion and hearing are still necessary for Execution to issue:
******Even in judgments which are immediately executory, there must be a
MOTION to that effect and a HEARING called for that purpose. A decision
which is immediately executory does not mean dispensing with 3-day notice
required by Sec, 10(c) of Rule 39 in the implementation of a writ of execution.
**Hence, a sheriff who enforces the writ without the required notice is
running afoul with rules (Calaunan v. Madolaria, A.M. No. P-10-2810 February 8,
2011).
4. Rule on the Refusal of the Court to issue a writ of execution
*GR: Execution of judgment is a matter of right on the part of the winning
party. The court cannot refuse execution.
*XPNs:
a. When execution is sought more than 5 years from its entry without the
judgment having been revived;
b. When the judgment has already been executed by the voluntary
compliance thereof by the parties (Cunanan v. CA, G.R. No. L-25511,
September 28, 1968);
c. When the judgment has been novated by the parties (Dormitorio v.
Fernandez, G.R. No. L-25897, August 21, 1976);
**The parties, despite the existence of a judgment, are at liberty
to novate a judgment by entering into a COMPROMISE. A compromise is a
contract recognized by substantive law (Art. 2028, NCC).
d. When a petition for relief is filed and a preliminary injunction is
granted in accordance with Sec. 5, Rule 38;
e. When the judgment sought to be executed is conditional or incomplete
(Cu Unjieng E Hijos v. Mabalacat Sugar Co., et al., G.R. No. L-32644, October 4,
1930; Del Rosario v. Villegas, G.R. No. L-25726, November 22, 1926);
f. When facts and circumstances transpire which would render execution
inequitable or unjust (Bacharach Corp. v. CA, G.R. No. 128349, September 25,
1998);
g. When execution is sought against property exempt from execution
under Sec. 13, Rule 39;
h. On equitable grounds, as when there has been change in the situation

of the parties which makes execution inequitable (Luna v. IAC, G.R. No. 68374,
June 18, 1985).
5. **REMEDY if a Motion for Execution is denied: MANDAMUS. The issuance
of writ of execution is a ministerial duty of court under Sec. 1 of Rule 39,
compellable by writ of mandamus (Greater Metropolitan Manila Solid Waste
Management Committee v. Jancom Environmental Corporation, G.R. No.
163663, June 30, 2006).
6. Codal [] Section 1. Execution upon judgments or final orders. — Execution shall issue
as a matter of right, ON MOTION, upon a judgment or order that disposes of
the action or proceeding upon the expiration of the period to appeal therefrom
if no appeal has been duly perfected. (1a)
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. (n)
—————————————————
b) Discretionary execution547 <execution pending appeal>

1. It constitutes an exception to the rule that a judgment cannot be executed before the
lapse of the period for appeal or during the pendency of an appeal. The execution of a
judgment under this concept is addressed to the discretionary power of the
court, hence, it cannot be insisted upon. NB: it does not apply to grant of moral
and exemplary damages, which must be determined upon finality of judgment.548
547
Codal [] 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. (2a)
548
The trial court rendered judgment ordering the defendant to pay the plaintiff moral and
exemplary damages. The judgment was served on the plaintiff on October 1, 2001 and on the
defendant on October 5, 2001. On October 8, 2001, the defendant filed a notice of appeal from the
2. Ground: Discretionary execution may only issue upon GOOD REASONS to

be stated in a special order after due hearing (Sec. 2, Rule 39).
**“Good reasons” have been held to consist of COMPELLING
CIRCUMSTANCES that justify immediate execution lest the judgment becomes
illusory. Circumstances must be SUPERIOR, OUTWEIGHING THE INJURY
OR DAMAGES that might result should the losing party secure a reversal of the judgment
(Florendo v. Paramount Insurance Corp., G.R. No. 167976, January 20, 2010).
3. REQUISITES for discretionary execution******
a. There must be a MOTION filed by the prevailing party WITH NOTICE
to the adverse party;
b. There must be a HEARING of the motion for discretionary execution;
c. There must be GOOD REASONS to justify the discretionary execution; and
d. The good reasons must be STATED IN A SPECIAL ORDER (Sec. 2, Rule 39).
4. ******INSTANCES when execution is DISCRETIONARY
a. Execution pending appeal; and
b. While trial court has jurisdiction over the case and is in possession of
either the original record or record on appeal; NB: Discretionary execution is
allowed only when the period to appeal has commenced but before the trial
court loses jurisdiction over the case.549 The period to appeal where a motion
for reconsideration has been filed commences only upon the receipt of the order
disposing of the MR. The pendency of the MR prevents the period to appeal
from even commencing. ******Thus, where there is pending MR, an order of
judgment, but the following day, October 8, 2001, the plaintiff moved for the execution of the
judgment pending appeal. The trial court granted the motion upon the posting by the plaintiff of a
bond to indemnify the defendant for damages it may suffer as a result of the execution. The court gave
as a special reason for its order the imminent insolvency of the defendant. Is the order of execution
pending appeal correct? Why? (5%) SUGGESTED ANSWER:
No, because awards for moral and exemplary damages cannot be the subject of
execution pending appeal. The execution of any award for moral and exemplary damages is
dependent on the outcome of the main case. Liabilities for moral and exemplary damages, as well
as the exact amounts remain uncertain and indefinite pending resolution by the Court of Appeals or
Supreme Court. [RCPI v. Lantin, 134 SCRA 395 (1985); International School, Inc. v. Court of Appeals,
309 SCRA 474 (1999)].
549
[] Q: In a complaint filed by Granger for rescission and damages, the RTC ruled against JP Latex,
defendant. On Aug. 5, 2006, Granger moved for the execution pending appeal of the decision. Upon
receipt of the decision, JP Latex filed an MR. The RTC granted the execution “pending appeal”
without acting on the motion for reconsideration. Is the order of the trial court correct? NO.
Discretionary execution is allowed only when the period to appeal has commenced but before
the trial court loses jurisdiction over the case. The period to appeal where a motion for
reconsideration has been filed commences only upon the receipt of the order disposing of the MR.
The pendency of a MR, therefore, prevents the running of the period to appeal. The MR filed by
JP Latex had not been acted upon by the RTC before it ruled on the motion for execution “pending
appeal.” The ****pendency of the MR has prevented the period to appeal from even
commencing. The period within which a party may move for an execution pending appeal of the
RTC’s decision has not yet started. Thus, ***where there is pending MR, an order of execution
pending appeal is IMPROPER AND PREMATURE (JP Latex Technology, Inc. v. Ballons
Granger Balloons, Inc., et al., G.R. No. 177121, March 16, 2009).
execution pending appeal is IMPROPER AND PREMATURE.

c. When trial court has lost jurisdiction but has not transmitted records
of the case to the appellate court; and
d. When trial court has lost jurisdiction and has transmitted records
(motion for execution pending appeal with appellate court); and
e. Execution of several, separate or partial judgment (Florendo v.
Paramount Insurance Corp, now MAA General Insurance Inc., G.R. No. 167976,
January 20, 2010).
5. Instances when judgment may issue before judgment has become executory and
before the appeal was perfected
a. Where the lapse of time would make the ultimate judgment ineffective,
as where the debtors were withdrawing their business and assets from the country;
b. Where the appeal is clearly dilatory;
c. Where the judgment is for support and the beneficiary is in need thereof;
d. Where the articles subject of the case would deteriorate;
e. Where the defendants are exhausting their income and have no other
property aside from the proceeds of a property subject of the action;
f. **Where the judgment debtor is in imminent danger of insolvency or is
actually insolvent;
g. Where the prevailing party is of advanced age and in a precarious state
of health, and the obligation in the judgment is non-transmissible; and
h. **Where the case involved escrow deposits and the prevailing party posts
sufficient bond to answer for damages in case of reversal of the judgment
(Regalado, 2010).
6. WHERE to file an application for discretionary execution—
a. The motion for discretionary execution shall be filed with the trial court:
i. While it has jurisdiction over the case; and
ii. While it is in possession of either the original record or the
record on appeal; or
b. After the trial court has lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court (Bangkok Republic Company
Limited v. Lee, G.R. No. 159806, January 20, 2006).
*In either instance, and whether it is a regular judgment or a special judgment such as
several, separate or partial judgment, the same procedure and the requirement of a
special order stating good reasons for discretionary execution shall be observed
(Regalado, 2010).
7. Remedy when the judgment is reversed or annulled: The trial court may, on
motion, issue such ORDERS OF RESTITUTION OR REPARATION OF
DAMAGES as equity and justice may warrant under the circumstances (Sec. 5,
Rule 39).
8. ******Staying the discretionary execution:550 It may be stayed upon approval

by the proper court of a SUFFICIENT SUPERSEDEAS BOND551 filed by
the party against whom execution 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 (Sec. 3 Rule 39).
———————————————
3.17.3. How a judgment is executed
a) Execution by motion or by independent action

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. (6a)
1. ******Modes of execution of final and executory judgment or order and
revived Judgment
a. EXECUTION BY MOTION – if the enforcement of the judgment is
sought within 5 years from the date of its entry; and
b. EXECUTION BY INDEPENDENT ACTION – if the five year
period has elapsed and before it is barred by statute of limitations (Sec. 6,
Rule 39).
*****The date of finality of judgment or final order shall be deemed to be
the date of its entry. Entry of judgment means the ministerial recording of a
court's final decision, usually by noting it in a judgment book or civil docket
(Black’s Law Dictionary, 8thed.). *****However, if the judgment is based upon
a compromise which is immediately final and executory, prescription runs
from the date of its rendition and not from date of entry (Jacinto v. IAC, G.R.
550
[] 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. (3a )
551
Q: While the ejectment case was pending before the Municipal Court, Juan Santos religiously
deposits ail current rentals. In due time, the judge ordered Juan Santos to pay all rents until he
vacates the premises as well as attorney’s fees in the amount of P5.000. Maria Cruz moves for
immediate execution on the ground that Juan Santos did not deposit the attorney’s fees of
P5.000.00 and that he did not put a supersedeas bond for the award. Should the court grant
immediate execution? Decide with reasons. (1990 Bar Question) Answer:
No, because a *****supersedeas bond covers only the rents unpaid up to this time of the
judgment. Since Juan Santos had deposited all current rentals while the ejectment case was pending
before the Municipal Court, a supersedeas bond was not required. (Once v. Gonzales, 76 SCRA
258). Attorney’s fees are not required to be deposited in order to stay execution.
No. 66478, August 28, 1988). If an amendatory and clarificatory judgment

was rendered, it is from the date of the entry thereof that the 10-year period is
reckoned (Sta. Romana v. Lacson, G.R. No. L-27754, April 8, 1981).
2. The 5 and 10 year periods *****do not apply to judgment for:
a. Support (Canonizado v. Benitez, G.R. Nos. L-49315 and 60966, February
20, 1984);
b. Special proceedings (Rodil v. Benedicto, G.R. No. L-28616, January 22,
1980).
3. ******Motion is indispensable even if judgment is immediately executory:
There must be a motion to that effect and a hearing called for the purpose (Lu v.
Siapno, A.M. MTJ-99-1199, July 6, 2000).
4. Execution by motion after the lapse of 5 years
*GR: Execution of a judgment can no longer be effected by filing a motion,
after 5 years. The remedy would be to file an independent action for the revival
of the judgment. When a writ of execution is issued by motion after 5 years from
the date of entry of judgment, such motion is considered null and void (Tag
Fibers, Inc. v. NLRC, G.R. No. 120931, Oct. 20, 2000; Terry v. People, G.R. No.
136203, Sept. 16, 1999)
***XPNs: However, the court in certain instances allowed execution of
the judgment by mere motion despite the lapse of the 5 year period where:
a. The delay in the execution of the judgment was through causes
attributable to the judgment debtor; 552or
b. When delay is incurred for his benefit.
5. Dormant Judgment: one which has not been enforced by motion within 5
years after its entry and is thus reduced to a mere right of action in favor of
judgment-obligee. It may be enforced by filing an action for revival of
judgment and enforcing the decision therein (Salvante v. Cruz, Salvante v. Cruz,
552
*****NB: Any interruption or delay occasioned by the debtor will extend the time within which
the writ may be issued without scire facias (Republic v. CA, G.R. No. L-43179, June 27, 1985).
[Latin: “make known”: a writ (old Englisg for ‘judicial order’) requiring a person to show why a
judgment regarding a record or patent should not be enforced or annulled; A scire facias writ
commands the person against whom it is brought to appear before the court and show why the
record should not be resolved in favor of the party who brought the writ. In modern practice, the
writ of scire facias is used in the enforcement and collection of judgments. When a plaintiff in a
civil case obtains a money judgment against a defendant, the court order to pay the judgment may
expire after a certain number of years if the judgment remains unpaid. State and federal laws allow the
plaintiff to make a motion to the court before the time period expires to continue the effect of
the court's order. If the plaintiff fails to make such a motion, she may file a writ of scire facias to
revive the judgment. The defendant would then have to appear before the court and explain
why the judgment should not be revived. If the defendant has already paid the plaintiff, or if the
defendant has evidence that he owes the plaintiff nothing, the defendant may present evidence and
shift the burden of proof to the plaintiff.]
No. L-2531, Feb. 28, 1951).553

6. Revival of Judgment: a procedural means of securing the execution of a
previous judgment which has become dormant after a passage of 5 years without
it being excuted upon motion of the prevailing party (Riano, 2014, citing
Saligumba v. Palanog G.R. No. 143365, Dec. 4, 2008).
a. ******An action to revive judgment is a personal one and not a quasi in
rem (Donelly v. CFI Manila, G.R. No. L-31209, April 11, 1972).
b. After 5 years and within 10 years from entry of judgment, such judgment
becomes a mere right of action and if unsatisfied, the prevailing party can file an
action for revival of judgment (PNB v, Perez, G.R. No. L-20412, February 28,
1966).
c. Nature of a revived judgment: A revived judgment is *****deemed a
new judgment separate and distinct from the original judgment (Riano,
2014, citing PNB v Bondoc, G.R. No. L-20236, July 30, 1965).
7. ******Judgments or final orders that are immediately final and executory
a. Judgments in summary judicial proceedings in the family law (Art. 247,
FC);
b. Compromise Judgments;
c. Judgments for direct contempt (Sec. 2, Rule 71);
d. Judgments in cases covered by the Rule of Procedure for Small Claims
Cases (Sec. 23, A.M. No. 08-8-7-SC).
8. Staying the period to execute judgment—The period to execute the judgment
may be stayed by:
a. Agreement of the parties;
b. Injunction;
c. Taking an appeal or writ of error.
9. Effect of an appeal to the execution of the judgment
*GR: An appeal perfected in due time stays the execution of a judgment.
******XPNs: There are judgments which by express provision of law are
not stayed by appeal:
a. Those judgments which by express provision of the rules are
immediately executory and are not stayed by appeal (Sec. 4, Rule 39), such as
judgment for [IRAS] ***INJUNCTION, RECEIVERSHIP, ACCOUNTING
AND SUPPORT unless the court rules otherwise or the appellate court on appeal
suspends, modifies, restores or grants the same. Judgments appealed under Rule
553
Q: A files a case against B. While awaiting decision on the case, A goes to the United States to work.
Upon her return to the Philippines, seven years later, A discovers that a decision was rendered by the
court in her favor a few months after she had left. Can A file a motion for execution of the judgment?
Reason briefly. (5%) (2007 Bar Question) SUGGESTED ANSWER:
On the assumption that the judgment had been final and executory for more than five (5)
years as of A’s return to the Philippines seven (7) years later, a motion for execution of the
judgment is no longer availing because execution of judgment by mere motion is allowed by the
Rules only within five (5) years from entry of judgment; thereafter, and within ten (10) years from
entry of judgment, an action to enforce the judgment is required.
43 not stayed unless ordered by the Court;

b. Those judgments that have become the *****object of discretionary
execution (Sec. 2, Rule 39).
10. Defenses available in an action for enforcement
a. Prescription;
b. Satisfaction of claim; and
c. Counterclaims.
11, Issuance of Execution in case of death of a party
a. Death of an obligee – execution will issue in any case, upon application
of his executor, administrator, or successor-in-interest;
b. Death of an obligor
i. Death before levy:
(a) Action for recovery of real or personal property or any lien
– execution shall issue against his executor or administrator or successor in interest.
(b) Action for a sum of money –*** execution will NOT
issue. The judgment obligee should file a claim against the estate of the
judgment obligor under Rule 86
ii. Death after levy: ***Execution will issue against his executor,
administrator, or successor-in-interest because the property is already
separated from the estate of the deceased and is deemed in custodia legis.
b) Issuance and contents of a writ of execution

Section
1. Writ of execution: It is a judicial writ issued to an officer authorizing him to
execute the judgment of the court.
2. Lifetime of a writ of execution: The writ is enforceable within 5 years554 from
554
Q: The writ of execution was returned unsatisfied. The judgment obligee subsequently received
information that a bank holds a substantial deposit belonging to the judgment obligor. If you were the
counsel of the judgment obligee, what steps would you take to reach the deposit to satisfy the
judgment? (3%) (2008 Bar Question) SUGGESTED ANSWER:
Since a writ of execution is valid for five years from its issuance, the sheriff should be
informed and requested to garnish or levy on execution the bank deposits belonging to the
judgment obligor (Sec. 9[c], Rule 39, Rules of Court). Then the judgment creditor move for a court
order directing the application of such bank deposit to the satisfaction of the judgment (Sec.
40, Rule 39, Rules of Court).
[] Q: If the bank denies holding the deposit in the name of the judgment obligor but your
client’s informant is certain that the deposit belongs to the judgment obligor under an assumed name,
what is your remedy to reach the deposit? (3%) (2008 Bar Question) SUGGESTED ANSWER:
To reach the bank deposit belonging to the judgment obligor but under an assumed name, a
motion may be filed for a court order requiring the proper bank officer to appear in court for
examination under oath as to such bank deposit, and subsequently move for a court order
authorizing the filing of an action against such bank for the recovery of the judgment obligor’s
deposit/interest therein and to forbid a transfer or other disposition of such deposit/interest
within 120 days from notice of the order (Secs. 37 and 43, Rule 39, Rules of Court).
the entry of judgment (Sec. 6, Rule 39).555

3. Contents of a writ of execution—The writ of execution is issued in the name of
the Philippines and shall state:
a. The name of the court which granted the motion;
b. The case number;
c. The dispositive portion of the judgment or order subject of the execution;
and
d. Shall require the sheriff or other proper officer to whom it is directed to
enforce the writ according to its terms, in the manner hereinafter provided:
e. If the execution be against the property of the judgment obligor, to satisfy
the judgment, with interest, out of the real or personal property of such judgment
obligor;
f. If it be against real or personal property in the hands of personal
representatives, heirs, devisees, legatees, tenants, or trustees of the judgment
obligor, to satisfy the judgment, with interest, out of such property;
g. If it be for the sale of real or personal property, to sell such property,
describing it, and apply the proceeds in conformity with the judgment, the
material parts of which shall be recited in the writ of execution;
h. If it be for the delivery of the possession of real or personal property, to
deliver the possession of the same, describing it, to the party entitled thereto, and
to satisfy any costs, damages, rents, or profits covered by the judgment out of the
personal property of the person against whom it was rendered, and if sufficient
personal property cannot be found, then out of the real property; and
i. **In all cases, the writ of execution shall specifically state the amount
of the interest, costs, damages, rents, or profits due as of the date of the
issuance of the writ, aside from the principal obligation under the judgment. For
this purpose, the motion for execution shall specify the amounts of the foregoing
reliefs sought by the movants (Sec. 8, Rule 39).
*The motion for execution and the writ of execution must state specifically
the amount of interest, costs, damages, rents, or profits due as of the date of
issuance of the writ, aside from the principal obligation.
4. Effect when the writ of execution does not conform to the judgment: If the
writ of execution is different from the judgment or exceeds the terms of the
judgment, it is a ***nullity and may be quashed on motion (Romero, et al. v.
CA, G.R. No. L-29659, July 30, 1971).
555
Q: “A" obtained a judgment against “B” for the payment of money. For failure to appeal, the
judgment became final on July 5, 1975 Writs of execution were returned unsatisfied, for the sheriff was
unable to find property of “B” subject to execution. On June 30, 1984, “A" located some property of
“B". Whereupon “A” immediately filed in July 1984 a motion for the issuance of an alias writ of
execution. If you were the judge, will you grant the writ? Why? (1987 Bar Question) Answer:
No, because a motion for the issuance of an alias writ of execution may be granted only
within five years from the entry of the judgment on July 5, 1975. It will be necessary for “A” to file
an action to enforce or revive the judgment before the lapse of ten years. (Sec. 6 of Rule 39)
5. Cases where a writ of possession may be issued

a. Land registration proceedings (in rem);
b. Extrajudicial foreclosure of a real estate mortgage;
c. Judicial foreclosure of mortgage, (quasi in rem) provided that the
mortgagor is in possession of the mortgaged realty and no third person, not a
party to the foreclosure suit, had intervened; and
d. Execution sale (Mabale v. Apalisok, G.R. No. L-46942, February 6, 1979).
****An order granting the issuance of a writ of execution of a final
judgment is not appealable, except when order varies in term, vague and wrong
interpretation of judgment (Socorro v. Ortiz, G.R. No. L-23608, December 24, 1964;
Molina v. De la Riva, 8 Phil 571; JM Tuazon & Co., Inc. v. Estabillo, G.R. No. L-
20610, January 10, 1975).
6. Grounds to quash the writ of execution
a. When the writ of execution varies the judgment;
b. When there has been a change in the situation of the parties making the
execution inequitable or unjust;
c. When execution is sought to be enforced against a property exempt from
execution;
d. When it appears that the controversy has never been submitted to the
judgment of the court;
e. When the terms of the judgment are not clear enough and there remains
room for interpretation thereof;
f. When it appears that the writ of execution has been improvidently issued;
g. When it appears that the writ of execution is defective in substance, or is
issued against the wrong party, or that the judgment debt has been paid or
otherwise satisfied or the writ is issued without authority (Reburiano v. CA, G.R.
No. 102965, Jan. 21, 1999).
c) Execution of judgments for money

1. Three Ways to enforce a judgment for money******
a. Immediate payment on demand;
b. Satisfaction by levy;
c. Garnishment of debts and credits.
2. Steps in executing a judgment for money
a. The officer shall demand from the obligor the immediate payment of the
full amount stated in the judgment including the lawful fees in cash, certified
check payable to the judgment obligee or any other form of payment acceptable to
him;
b. If the judgment obligor cannot pay all or part of the obligation in cash,
certified check or other mode of payment, the officer shall levy upon the
properties of the judgment obligor. *****The judgment obligor556 shall have

the option to choose which property or part thereof may be levied upon. If the
judgment obligor does not exercise the option, the officer shall first levy on
the personal properties, if any, and then on the real properties if the personal
properties are insufficient to answer for the personal judgment but the sheriff shall
sell only so much of the property that is sufficient to satisfy the judgment and
lawful fees;
c. The officer may levy on the debts due the judgment debtor including
bank deposits, financial interests, royalties, commissions and other
personal property not capable of manual delivery in the possession or control
of third parties. This is called GARNISHMENT (Sec. 9, Rule 39).
3. Discretion to choose which property to levy: The judgment obligor shall have
discretion to choose which property to levy. Therefore, the sheriff cannot and
should not be the one to determine which property to levy if the judgment
obligor cannot immediately pay because it is the judgment obligor who is
given the option to choose which property or part thereof may be levied upon
to satisfy the judgment (Leachon v. Pascua, A.M. No. P-11-2972, September 28,
2011).
4. Right to Choose may be waived by the judgment obligor: If the judgment
obligor does not exercise the option, he waives such right, and the sheriff shall
levy first on personal property, then on557 real property. The sheriff shall only
556
Q: Antique dealer Mercedes borrowed P1,000,000 from antique collector Benjamin. Mercedes
issued a postdated check in the same amount to Benjamin to cover the debt. On the due date of the
check, Benjamin deposited it but it was dishonored. As despite demands, Mercedes failed to make
good the check, Benjamin filed in January 2009 a complaint for collection of sum of money before
the RTC of Davao. Mercedes filed in February 2009 her Answer with Counterclaim, alleging that
before the filing of the case, she and Benjamin had entered into a dacion en pago agreement in which
her vintage P1,000,000 Rolex watch which was taken by Benjamin for sale on commission was applied
to settle her indebtedness; and that she incurred expenses in defending what she termed a "frivolous
lawsuit. She accordingly prayed for P50,000 damages.
Suppose there was no Counterclaim and Benjamin's complaint was not dismissed, and
judgment was rendered against Mercedes for P1,000,000. The judgment became final and
executory and a writ of execution was correspondingly issued. Since Mercedes did not have cash
to settle the judgment debt, she offered her Toyota Camry model 2008 valued at P1.2 million. The
Sheriff, however, on request of Benjamin, seized Mercedes 17th century ivory image of the La
Sagrada Familia estimated to be worth over P1, 000,000. Was the Sheriffs action in order? (3%) (2010
No, the Sheriff's action was not in order. He should not have listened to Benjamin, the
judgment obligee/creditor, in levying on the properties of Mercedes, the judgment obligor/debtor.
The option to immediately choose which property or part thereof may be levied upon,
sufficient to satisfy the judgment, is vested by law (Rule 39, Sec. 9 (b) upon the judgment
obligor, Mercedes, not upon the judgment obligee, Benjamin, in this case. Only if the judgment
obligor does not exercise the option, is the Sheriff authorized to levy on personal properties if any, and
then on the real properties if the personal properties are insufficient to answer for the judgment.
557
Q: A writ of execution was served by a sheriff upon defendant so that plaintiff may be placed in
possession of the property held by the former. The defendant refused to vacate and surrender the
sell property sufficient to satisfy the judgment and other lawful fees (Villarin v.
Munasque, G.R. No. 169444, Sept. 17, 2008).
5. Levy: It is the act by which an officer sets apart or appropriates a part or the
whole of the property of the judgment debtor for purposes of the execution sale.
6. Garnishment: a form of levy on the debts due the debtor including bank
deposits, financial interests, royalties, commissions and other personal
property not capable of manual delivery in the possession or control of third
parties (Riano, 2014).
Garnishment is a kind of attachment for reaching credits belonging to
the judgment debtor and owing to him from a stranger to the litigation. A writ
of attachment is substantially a writ of execution except that it emanates at the
beginning, instead of at the termination, of a suit. It places the attached
properties in custodia legis, obtaining pendente lite a lien until the
judgment of the proper tribunal on the plaintiff’s claim is established, when
the lien becomes effective as of the date of the levy.
***The garnishee or the third person who is in the possession of the
property of the judgment debtor is ****deemed a forced intervenor.
- Jurisprudence: It is a settled rule that upon service of the writ of
garnishment, the garnishee becomes a “virtual party” or “forced intervenor”
to the case and the trial court thereby acquires jurisdiction to bind the garnishee to
comply (BPI v. Carlito Lee, G.R. No. 190144, August 1, 2012).
6. Procedure in garnishment
a. A notice is served upon the third person or garnishee having in
possession or control of the credits in favor of the judgment obligor;
b. The garnishee shall make a written report to the court within 5 days from
service of notice of garnishment stating whether or not the judgment obligor has
sufficient funds to satisfy the judgment. If sufficient, the garnishee shall deliver the
amount in cash or certified check shall be delivered directly to the judgment oblige
within 10 working days from service of notice on garnishee;
c. The lawful fees shall be directly paid to the court;
d. If the amount is insufficient, the garnishee shall make a report as to the
amount he holds for the judgment creditor (Sec. 9, Rule 39).
7. Bar 1999: ***Distinction between attachment and garnishment
a. Attachment refers to corporeal property in the possession of the
judgment debtor.
premises to plaintiff. *****Can defendant be held for indirect contempt for disobedience of, or
resistance to a lawful writ issued by the court? Explain. (1995 Bar Question) Answer:
No, because it is the sheriff who must enforce the writ of execution for the delivery of
property by ousting therefrom the person against whom the Judgment is rendered and placing the
judgment creditor in possession. (Sec. 13. Rule 39). The writ of possession was directed to the
Sheriff who was to deliver the property to the plaintiff. The writ did not command the plaintiff
[TOM: must be the defendant] to do anything, hence he could not be held guilty of indirect
contempt. [Barrele vs. Amila, 230 SCRA 219)
b. Garnishment refers to money, stocks, credits and other incorporeal

property which belong to the judgment debtor but is in the possession or under
the control of a third person.
[] Bar 2008: The writ of execution was returned unsatisfied. The judgment
obligee subsequently received information that a bank holds a substantial
deposit belonging to the judgment obligor. If the bank denies holding the
deposit in the name of the judgment obligor but your client's informant is
certain that the deposit belongs to the judgment obligor under an assumed name,
what is your remedy to reach the deposit? A: A motion may be filed for a court
order requiring the proper bank officer to appear in court for examination
under oath as to such bank deposit, and subsequently move for a court order
authorizing the filing of an action against such bank for the recovery of the
judgment obligor’s deposit/interest therein and to forbid a transfer or other
disposition of such deposit/interest **within 120 days from notice of the order
(Secs. 37 and 43, Rule 39).
8. Implementation of Judgment if the obligee is absent at the time of payment:
When the judgment obligee is not present at the time the judgment obligor makes
the payment, the sheriff is authorized to receive it. However, the money
received must be remitted to the clerk of court within the same day or, if not
practicable, deposited in a fiduciary account with the nearest government
depository bank. ***Sheriffs are not permitted to retain the money in their
possession beyond the day when the payment was made or to deliver the
money collected directly to the judgment oblige (Peña, Jr. v. Regalado II, A.M.
No. P-10-2772, February 16, 2010).
d) Execution of judgments for specific acts

1. Specific Acts
a. Conveyance, delivery of deeds, or other specific acts vesting title;
b. Sale of real or personal property;
c. Delivery or restitution of real property;
d. Removal of improvements on property subject of execution; and
e. Judgments for the delivery of personal property (Sec. 10, Rule 39).
2. Remedy when a party refuses to comply with the judgment
a. Vacate the property – The sheriff must oust the party. A demolition
order from the court is required to effect removal of an improvement constructed
by the defeated party;
b. Deliver – The sheriff will take possession and deliver it to the wining
party;
c. Comply – The court can appoint some other person558 at the expense
558
Q: Aldrin entered into a contract to sell with Neil over a parcel of land. The contract stipulated a
P500,000.00 down payment upon signing and the balance payable in twelve (12) monthly
installments of Pl00,000.00. Aldrin paid the down payment and had paid three (3) monthly
of the disobedient party and the act shall have the same effect as if the required
party performed it.
3. Execution of Judgments for the following specific acts if the judgment debtor
refuses/fails to comply
Judgments for Manner of Execution
Specific Act
Conveyance, delivery Court can appoint some other person at the cost of the disobedient party and
of deeds, or other
specific acts, vesting the act when so done shall have the same effect as if done by the required party.
title.
Sale of real and Sell such property and apply the proceeds in conformity with the judgment.
personal property
Delivery or If the party refuses to deliver, a writ of execution directing the sheriff to cause the
restitution of real
property defendant to vacate is in the nature of a habere facias possesionem and authorizes the
sheriff to break open the premises where there is no occupant therein.
****If party refuses to vacate property, remedy is not contempt. The sheriff must
oust the party. But if demolition is involved, there must be a special order.
installments when he found out that Neil had sold the same property to Yuri for Pl.5 million
paid in cash. Aldrin sued Neil for specific performance with damages with the RTC. Yuri, with
leave of court, filed an answer-in-intervention as he had already obtained a TCT in his name. After
trial, the court rendered judgment ordering Aldrin to pay all the installments due, the
cancellation of Yuri's title, and Neil to execute a deed of sale in favor of Aldrin. When the
judgment became final and executory, Aldrin paid Neil all the installments but the latter refused
to execute the deed of sale in favor of the former. *****Aldrin filed a "Petition for the Issuance of a
Writ of Execution" with proper notice of hearing. The petition alleged, among others, that the
decision had become final and executory and he is entitled to the issuance of the writ of execution as a
matter of right. Neil filed a motion to dismiss the petition on the ground that it lacked the
required certification against forum shopping.
a. Should the court grant Neil’s Motion to Dismiss?(2015) A: NO. The motion to dismiss
should be denied because the certification against forum shopping is only required in a complaint or
other initiatory pleading (Sec. 5, Rule 7; Arquiza v. Court of Appeals, G.R. No. 160479, June 8,
2005). Since a petition for the issuance of the writ of execution is not an initiatory pleading, it does not
require a certification against forum shopping.
[] Q: Despite the issuance of the writ of execution directing Neil to execute the deed of sale
in favor of Aldrin, the former obstinately refused to execute the deed. What is Aldrin's remedy?
(2015) A: ******Aldrin may move for the issuance of a court order directing the execution of the
Deed of Sale by some other person appointed by it. Under Section 10, Rule 39 of the Rules of
Court, if a judgment directs a party to execute a conveyance of land or personal property, or to
deliver deeds, 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. *****The phrase “some other person appointed by the court” may refer to the
branch clerk of court, sheriff or even the Register of Deeds, and their acts when done under such
authority shall have the effect of having been done by Neil himself.
Removal of The officer may destroy, demolish or remove the improvements upon special order
improvements on
property subject of of the court, issued upon motion of the judgment obligee.
execution
Delivery of personal The officer shall take possession and deliver to the party entitled thereto.
property
4. Contempt in case of refusal to comply with the judgment of the court

*GR: No. The judgment debtor cannot be cited in contempt of court.
Generally, contempt is not a remedy to enforce a judgment.
*XPNs:
a. Refusal to perform a particular act or special judgments under Sec.
11 where he may be cited in contempt.
b. In case of the provisional remedy of support pendente lite under Rule
61, the judgment debtor may still be cited for contempt even if the decision is not
a special judgment and requires the latter to pay money.
***If a judgment requires a person to perform a specific act, said act must
be performed but if the party fails to comply within the specified time, the court
may direct the act to be done by someone at the cost of the disobedient
party and the act when so done shall have the effect as if done by the party
(Riano, 2014). In such case, the disobedient party incurs no liability for contempt
(Regalado, 2012).
e) Execution of special judgments

1. ******Special Judgment: One which requires the performance of any act,
other than the payment of money or the sale or delivery of real or personal
property, which a ***party must personally do559 because his personal
qualifications and circumstances have been taken into consideration (Sec. 11,
Rule 39; Regalado 2010).
2. Effect of failure to comply with special judgments: Failure to comply with
special judgment under Sec. 11 is punishable by IMPRISONMENT (Sec. 11,
Rule 39).
3. How executed: 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 (Sec. 11, Rule
39).
559
An example of a special judgment is one which orders: (2012 BAR)
a. thedefendanttodeliverandreconveypersonalpropertytotheplaintiff.
b. defendanttoexecuteaDeedofSaleinfavorofplaintiff.
c. defendant to paint a mural for the plaintiff.
d. Defendanttovacatetheleasedpremises.
f) Effect of levy on third persons

1. It creates a lien in favor of the judgment obligee over the right, title and interest
of the judgment obligor in such property at the time of the levy, subject to liens
and encumbrances then existing (Sec. 12, Rule 39).
2. ***Encumbered property may be levied: For purposes of the levy, a property
is deemed to belong to the judgment debtor if he holds a beneficial interest in
such property that he can sell or otherwise dispose of for value. In a contract of
mortgage, the debtor retains beneficial interest over the property
notwithstanding the encumbrance, since the mortgage only serves to secure
the fulfillment of the principal obligation. Indeed, even if the debtor defaults, this
fact does not operate to vest in the creditor the ownership of the property; the
creditor must still resort to foreclosure proceedings. Thus, a mortgaged
property may still be levied upon by the sheriff to satisfy the judgment debtor’s
obligations (Golden Sun Finance Corporation v. Albano, A.M. No. P-11-2888,
July 27, 2011).
3. Remedies available to a third-party claimant in levy of real property
a. Summary hearing before the court which authorized the execution;
b. Terceria or third party claim filed with the sheriff;
c. Action for damages on the bond posted by judgment creditors; or
d. Independent reivindicatory action (Sec. 16,
Rule 39)
****The remedies are cumulative and may be resorted to by the third party
claimant independently of or separately from the others. Availment of the
terceria is not a condition sine qua non to the institution of “separate action”
(Imani v. Metropolitan Bank & Trust Company, G.R. No. 187023, November 17,
2010).
The officer shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if there is a bond filed by the winning party.
If there is ***no bond, the sale cannot proceed. However, the judgment obligee
can claim damages against a third-party claimant who filed a frivolous or plainly
spurious claim, and such judgment obligee can institute proceedings therefor in
the same or separate action.
———————————————
3.17.4. Properties exempt from execution

1. 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. (12a)
2. Other properties exempt from execution outside the Rules of Court
a. Property mortgaged to DBP (Sec. 26, CA 458);
b, Property taken over by Alien Property Administration (Sec. 9(f), US
Trading with the Enemy Act);
c. Savings of national prisoners deposited with the Postal Savings Bank (Act
2489);
d. Backpay of pre-war civilian employees (RA 304);
e. Philippine Government backpay to guerillas (RA 897);
f. Produce, work animals, and farm implements of agricultural lessees,
subject to limitations (Sec. 21, RA 6389);
g. Benefits from private retirement systems of companies and
establishments, with limitations (RA 4917);
h. Labor wages, except for debts incurred for food, shelter, clothing, and
medical attendance (Art. 1708, NCC);
i. Benefit payments from the SSS (Sec. 16, RA 1161 as amended by PDs 24,
65, and 177);
j. Copyrights and other rights in intellectual property under the former

copyright law (PD 49 of Sec. 239.3, RA 8293); and
k. Bonds issued under RA1000 (NASSCO v. CIR, No. L-17874 31, August
1963; Regalado, 2012).
———————————————
3.17.5. Proceedings where property is claimed by third persons

1. When to file a Third-Party claim: At any time, so long as the sheriff has the
possession of the property levied upon, or before the property is sold under
execution (Sec. 14, Rule 57).
2. *****Requisites for a claim by a third person
a. The property is levied;560
b. The claimant is a person other than the judgment obligor or his agent;
c. Makes an affidavit of his title thereto or right to the possession thereof
stating the grounds of such right or title; and
d. Serves the same upon the officer making the levy and the judgment
oblige (Sec. 16, Rule 39).
3. Procedure for a third-party claim: The third-party should make an affidavit of
his title thereto, or right of possession thereof, and should serve such affidavit
upon the sheriff and a copy thereof to the judgment oblige (Sec. 16, Rule 39). This
remedy of the claiming party is also called ***“TERCERIA” (Riano, 2014).
4. Duty of the officer if the property sought to be levied on is claimed by another
person and proper proof of ownership or possession is served such officer: If the
property levied on is claimed by any person other than the judgment obligor
or his agent, and such person makes an affidavit of his title thereto or right to the
possession thereof, stating the grounds of such right or title, and serves the same
upon the officer making the levy and a copy thereof upon the judgment obligee,
the officer shall not be bound to keep the property, unless such judgment
obligee, on demand of the officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the
property levied on. In case of disagreement as to such value, the same shall be
determined by the court issuing the writ of execution. No claim for damages for
560
Q: JK’s real property is being attached by the sheriff in a civil action for damages against LM.
JK claims that he is not a party to the case: that his property is not involved in said case: and that he is
the sole registered owner of said property. Under the Rules of Court, what must JK do to prevent the
Sheriff from attaching his property? (5%) (2000 Bar Question) SUGGESTED ANSWER:
If the real property has been attached, the remedy is to file a third-party claim. *****The
third-party claimant should make an affidavit of his title to the property attached, stating the grounds
of his title thereto, and serve such affidavit upon the sheriff while the latter has possession of the attached
property, and a copy thereof upon the attaching party. (Sec. 14, Rule 57, 1997 Rules of Civil Procedure.)
*****The third-party claimant may also intervene or file a separate action to vindicate his claim to
the property involved and secure the necessary reliefs, such as preliminary injunction, which will not be
considered as interference with a court of coordinate Jurisdiction. (Ong v. Tating, 149 SCRA 265, (1987)
the taking or keeping of the property may be enforced against the bond unless the
action therefor is filed within 120 days from the date of the filing of the bond
(Sec. 16, Rule 39).
The officer shall not be liable for damages for the taking or keeping of the
property, to any third-party claimant if such bond561 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 (Ibid.).
5. When the writ of execution is issued in the Name of the Republic of the
Philippines : 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 (Ibid.).
a) In relation to third-party claim in attachment and replevin

*Certain remedies available to a third person not party to the action but whose
property is the subject of execution:
1. Terceria – By making an affidavit of his title thereto or his right to
possession thereof, stating the grounds of such right or title. The affidavit must
be served upon the sheriff and the attaching party (Sec. 14, Rule 57). Upon
service of the affidavit upon him, the sheriff shall not be bound to keep the
property under attachment except if the attaching party files a bond approved by
the court. The sheriff shall not be liable for damages for the taking or keeping of
the property, if such bond shall be filed.
2. Exclusion or release of property – Upon application of the third person
through a motion to set aside the levy on attachment, the court shall order a
summary hearing for the purpose of determining whether the sheriff has
acted rightly or wrongly in the performance of his duties in the execution of the
writ of attachment. The court may order the sheriff to release the property
from the erroneous levy and to return the same to the third person. In resolving
the application, the ***court cannot pass upon the question of title to the
property with any character of finality but only insofar as may be necessary to
561
What should the court sheriff do if a third party serves on him an affidavit of claim covering the
property he had levied? (2011 BAR)
(A) Ask the judgment obligee to file a court-approved indemnity bond in favor of the third-
party claimant or the sheriff will release the levied property.
(B) Ask the judgment obligee to file a court-approved bond for the sheriff’s protection in case he
proceeds with the execution.
(C) Immediately lift the levy and release the levied property.
(D) Ask the third-party claimant to support his claim with an indemnity bond in favor of the judgment
obligee and release the levied property if such bond is filed.
decide if the sheriff has acted correctly or not (Ching v. CA, G.R. No. 124642,
Feb. 23, 2004).
3. Intervention– This is possible because no judgment has yet been rendered
and under the rules, a motion for intervention may be filed any time before the
rendition of the judgment by the trial court (Sec. 2, Rule 19).
4. ****ACCION REIVINDICATORIA – The third party claimant is not
precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the
same or in a separate action. He may file a separate action to nullify the levy
with damages resulting from the unlawful levy and seizure. This action may be a
totally distinct action from the former case.
———————————————
3.17.6. Rules on redemption

1. Availability of the right of redemption: There is ***no right of redemption as
to personal properties for the SALE IS ABSOLUTE. Such right is available
only to real properties (Sec. 27, Rule 39).
2. *****The period of redemption is not suspended by an action to annul the
foreclosure sale. The periods for redemption are not extendible; but the parties may
agree on a longer period, in such case, it would be a conventional redemption.
3. Person/party to redeem the real property sold—Real property sold, or any part
thereof sold separately, may be redeemed by the following persons:
a. Judgment obligor, or his successor in interest in the whole or any part of
the property;
b. Redemptioner – 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 (Sec 27(b), Rule 39).
**There is no right of redemption in judicial foreclosure of mortgage under
Rule 68. The right of redemption exists only in execution sales and
extrajudicial foreclosures where there is always a right of redemption (Santos v.
Register of Deeds, G.R. No. L-26752, March 19, 1971).
4. Judgment Obligor v. Redemptioner
Judgment Obligor Redemptioner
Judgment obligor, or his successor in Does not only refer to judgment obligor. He may be a
interest (e.g. transferee, assignee, heirs, creditor having a lien by virtue of an attachment, judgment
joint debtors) or mortgage on the property sold, or on some part thereof,
subsequent to the lien under which the property was sold.
Such redeeming creditor is termed a redemptioner (Sec. 27,
Rule 39).
Within 1 year from the date of 1. Within 1 year from the date of registration of the
registration of the certificate of sale. certificate of sale if he is the first redemptioner; or
2. Within 60 days from the last redemption, if he be a
subsequent redemptioner, provided that the judgment debtor
has not exercised his right of redemption (Sec. 28, Rule 39).
Once he redeems, no further Further redemption is allowed, even after lapse of 1 year,
redemption is allowed. The person to as long as each redemption is made within 60 days after the last.
whom redemption was made must
execute and deliver to the judgment
obligor a certificate of redemption.
5. Requirements for the redemptioner or judgment obligor to redeem the real

property—The judgment obligor, or redemptioner, may redeem the property from
the purchaser at any time within 1 year from the date of the registration of the
certificate of sale by paying the purchaser:
a. The amount of his purchase;
b. Amount of any assessments or taxes which the purchaser may have paid
after purchase;
c. If the purchaser be also a creditor having a prior lien to that of the
redemptioner, other than the judgment under which such purchase was made, the
amount of such other lien; and
d. With **1 percent per month interest up to the time of redemption
(Sec. 28, Rule 39).
6. Rights of a judgment debtor
a. To remain in possession of the property until the expiration of period of
redemption;
b. To collect rents and profits until the expiration of period of redemption
(Sec. 32, Rule 39);
c. To use the property in the same manner it was previously used;
d. To make necessary repairs; and
e. Use it in the ordinary course of husbandry (Sec. 31 Rule 39).
7. Purchaser entitled to possession and conveyance of the property sold on
Execution: *****The purchaser is entitled to possession and conveyance of the
property if no redemption is made within 1 year from the date of the
registration of the certificate of sale (Sec. 33, Rule 39).
8. Instances when the purchaser may recover the purchase price from the
judgment obligor
a. If the purchaser or his successor-in-interest fails to recover possession
of the property sold on execution sale; or
b. Is evicted due to:
i. Irregularities in the proceedings concerning the sale;
ii. Reversal or setting aside of judgment;
iii. The fact that the property was exempt from execution; or
iv. If a third person has vindicated his claim to the property (Sec. 34,
Rule 39).
9. Remedy of a purchaser of real property sold on execution in instances when
purchaser may recover the purchase price562

a. Bring an action against the judgment creditor;
b. File a motion for revival of judgment in his name against the judgment
debtor; or
c. Bring an action to recover possession of property (Sec. 34, Rule 39).
———————————————
3.17.7. Examination of judgment obligor when judgment is unsatisfied

1. Bar 2008: ****Effect when the judgment was returned unsatisfied
a. The judgment creditor may cause examination of the judgment debtor
as to his property and income (Sec. 36, Rule 39);
b. The judgment creditor may cause examination of the debtors of the
judgment debtor as to any debt owed by him or to any property of the judgment debtor in his
possession (Sec. 37, Rule 39);
c. If the court finds, after examination, that there is property of the
judgment debtor either in his own hands or that of any person, the court may
order the property applied to the satisfaction of the judgment (Sec. 37, Rule 39);
d. If the court finds the earnings of the judgment debtor are more than
sufficient for his family’s needs, it may order payment in fixed monthly
installments (Sec. 40, Rule 39);
e. The court may appoint a receiver for the property of the judgment
debtor not exempt from execution or forbid a transfer or disposition or
interference with such property (Sec. 41, Rule 39);
f. If the court finds that the judgment debtor has an ascertainable interest
in real property either as mortgagor, mortgagee, or otherwise, and his interest can
be ascertained without controversy, the court may order the sale of such interest
(Sec. 42, Rule 39); and
g. If the person alleged to have the property of the judgment debtor or be
indebted to him, claims an adverse interest in the property, or denies the debt, the
court may authorize the judgment creditor to institute an action to recover the
property, forbid its transfer and may punish disobedience for contempt (Sec. 43,
562
Q: Having obtained favorable judgment in his suit for a sum of money against Patricio, Orencio
sought the issuance of a writ of execution. When the writ was issued, the sheriff levied upon a parcel of
land that Patricio owns, and a date was set for the execution sale.
xxx
[b] If Orencio is the purchaser of the property at the execution sale, how much does he have to
pay? Explain. (2%) (2009 Bar Question) SUGGESTED ANSWER: Orencio, the judgment creditor
should pay only the excess amount of the bid over the amount of the judgment, if the bid
exceeds the amount of the judgment.
[c] *****If the property is sold to a third party at the execution sale, what can Patricio do
to recover the property? Explain. (2%) (2009 Bar Question) SUGGESTED ANSWER: Patricio can
exercise his right of legal redemption within 1 year from date of registration of the certificate of sale
by paying the amount of the purchase price with interest of 1% monthly, plus assessment and
taxes paid by the purchaser, with interest thereon, at the same rate.
Rule 39).
[] Bar 2002: Anna, a Manila resident, sued Betsie resident of Malolos,
Bulacan, in the RTC Manila for a sum of money. The trial court rendered
judgment holding Anna liable for the entire amount prayed for in the complaint.
After the judgment had become final, a writ of execution was issued by the court.
As the writ was returned unsatisfied, Anna filed a motion for an order requiring
Betsie to appear before it and be examined regarding his property and income.
How should the court resolve the motion? A: The RTC Manila should deny the
motion. Betsie resides in Malolos, Bulacan. When a writ of execution is
returned unsatisfied, 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. However, ***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 (Sec. 36, Rule 39).
———————————————
3.17.8. Examination of obligor of judgment obligor563

1. When the return of a writ of execution against the property of a judgment
obligor shows that the judgment remains unsatisfied, in whole or in part, and
563
Q: The plaintiff, a Manila resident, sued the defendant, a resident of Malolos, Bulacan, in the
RTC-Manila for a sum of money. When the sheriff tried to serve the summons with a copy of the
complaint on the defendant at his Bulacan residence, the sheriff was told that the defendant had
gone to Manila for business and would not be back until the evening of that day. So, the sheriff
served the summons, together with a copy of the complaint, on the defendant's 18-year-old
daughter, who was a college student. For the defendant's failure to answer the complaint within the
reglementary period, the trial court, on motion of the plaintiff, declared the defendant in default. A
month later, the trial court rendered judgment holding the defendant liable for the entire amount
prayed for in the complaint.
A. After the judgment had become final, a writ of execution was issued by the court. As the
writ was returned unsatisfied, the plaintiff filed a motion for an order requiring the defendant to
appear before it and to be examined regarding his property and income. How should the court
resolve the motion? (2%) The RTC-Manila should deny the motion *****because it is in violation of
the rule that no judgment obligor shall be required to appear before a court, for the purpose of
examination concerning his property and income, outside the province or city in which such
obligor resides. In this case the judgment obligor resides in Bulacan. (Rule 39, sec. 36).
B. Seven years after the entry of judgment, the plaintiff filed an action for its revival. Can the
defendant successfully oppose the revival of the judgment by contending that it is null and void
because the RTC-Manila did not acquire jurisdiction over his person? Why? (3%) Yes. because the
sheriff did not exert sufficient effort to serve summons personally on the defendant within a e and
hence the RTC-Manila did not acquire jurisdiction over his person. [Rule 14, secs. 6 and 7; De
Guzman v. Court of Appeals, 271 SCRA 728 (1997)]. ALTERNATIVE ANSWER: No, the defendant
is deemed to have waived the lack of jurisdiction over his person because he did not raise this
issue: 1) in opposing the motion to declare him in default; 2) in a motion for reconsideration of
or appeal from the judgment by default; and 3) in opposing the motion requiring him to appear
and be examined regarding his property.
upon proof to the satisfaction of the court which issued the writ, that a person,
corporation, or other judicial entity has property of such judgment obligor or is
indebted to him (Sec. 37, Rule 39).
2. A party or other person may be compelled, by an order of subpoena, to appear
before the court or commissioner to testify as provided in Secs.36 & 37. Failure
to obey may be punished by CONTEMPT. If examination is before a
commissioner, he must take it in writing and certify it to the court. All
examinations and answers must be under oath.
———————————————
3.17.9. Effect of judgment or final orders***

1. If judgment or final order is on a specific thing, the same is conclusive upon
the title to thing;
2. If judgment or final order is in respect to the probate of a will, or the
administration of the estate of a deceased person, the same is conclusive upon
the will or administration but the probate of the will or the granting of letters of
administration shall only be prima facie evidence of the death of the testator or
intestate and ***not a conclusive presumption of death;
3. If judgment or final order is in respect to the personal, political or legal
condition or status of a particular person or his relationship to another, the
judgment or final order is ***conclusive upon the condition, status or
relationship;
4. In other cases, if the judgment be with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation thereto,
the judgment or final order is ***conclusive between the parties and their
successors in interest by title subsequent to the commencement of the action
or special proceeding, litigating for the same thing and under the same title and
the same capacity, relationship;
5. In any other litigation between the same parties or their successors in interest,
that only is deemed to be adjudged in a former judgment or final order which
appear upon its face to have been adjudged, or which was actually and necessarily
included therein or necessary thereto (Sec. 47, Rule 39).
6. ***Refusal to issue writ of execution after judgment has become final
*GR: Trial court has ministerial duty to order execution of final and
executory judgments. It cannot refuse execution and is compellable by mandamus.
*XPNs: (Same as grounds to Quash writ of execution)
a. Change in the situation of the parties which makes the execution
inequitable or unjust;
b. Writ of execution varies judgment;
c. Controversy was never submitted to the judgment of the court;
d. Execution is sought against property exempt from execution;
e. Terms of the judgment are not clear and leaves room for interpretation;
f. Writ of execution is improvidently issued;
g. Writ of execution is defective in substance;

h. Writ of execution is issued against the wrong party;
i. Judgment debtor has been paid or otherwise satisfied; and
j. Writ of execution was issued without authority.
****In the above exceptions, the proper remedy is petition for certiorari
under Rule 65.
7. Instances when execution of final and executory judgment is allowed
a. Upon filing of a petition for relief from judgment;
b. Attack against a judgment which is void for lack of jurisdiction, or
obtained through fraud;
c. On equitable grounds; and
d. In cases falling under the 10 exceptions above.
8. Modifying final and executory judgments
*GR: Final and executory judgments cannot be amended or modified. Any
amendment which substantially affects a final and executory judgment is null and
void for lack of jurisdiction.
***XPN: Judgment may be modified as to:
a. Clerical errors or mistakes - errors not as a result of exercise of judicial
functions;
b. To clarify ambiguity;
c. To enter ***nunc pro tunc [Latin: now for then] orders – to make a
present record of an order which the court rendered at a previous terms but, by
inadvertence has not been entered;
d. In judgments for support which can always be amended from time to
time, in light of the circumstances of the parties (Regalado, 2012).
9. As to res judicata, see grounds fro MTD, supra.
———————————————
3.17.10. Enforcement and effect of foreign564 judgments or final orders [Sec

48]
1. Effect of a Foreign Order565*****
564
(1997 Bar Question)
1. Give three instances when a Philippine court can take judicial notice of a foreign law. The
three instances when a Philippine court can take judicial notice of a foreign law are: (1) when the
Philippine courts are evidently familiar with the foreign law (Moran, Vol. 5, p. 34,1980 edition): (2)
when the foreign law refers to the law of nations (Sec. 1 of Rule 129) and, (3) when it refers to a
published treatise, periodical or pamphlet on the subject of law if the court takes judicial notice
of the fact that the writer thereof is recognized in his profession or calling as expert on the subject
(Sec. 4(5, Rule 130). Alternative Answers: 1. The Philippine court can also take judicial notice of a
foreign law: 1) when the foreign statute is accepted by the Philippine government. (Rep. v. Guanzon,
61 SCRA 360); 2) when a foreign judgment containing foreign law is recognized for enforcement
(Sec. 48, Rule 39); and 3) if it refers to common law doctrines and rules from which many of our laws
were derived (Alzua v. Johnson (21 Phil. 308]).
2. How do you prove a written foreign law? A written foreign law may be evidenced by an
official publication thereof or by a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody, if the office in which the record is kept is in a foreign
country, the certificate may be made by a secretary of the embassy or legation, consul general, consul,
vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated by the seal of his office (Sec. 24, Rule
132, Zalamea v. CA, 228 SCRA 23).
3. Suppose a foreign law was pleaded as part of the defense of defendant but no evidence was
presented to prove the existence of said law, what is the presumption to be taken by the court as to the
wordings of said law? The presumption is that, the wordings of the foreign law are the same as the
local law. (Northwest Orient Airlines v. Court of Appeals. 241 SCRA 192; Moran, Vol. 6, page 34,
1980 edition; Urn v. Collector of Customs, 36 Phil. 472). This is known as the processual
presumption.
565
Q: What are the rules on the recognition and enforcement of foreign judgments in our courts? (6%)
Judgments of foreign courts are given recognition in our courts thus: *****In case of judgment
upon a specific thing, the judgment is conclusive upon the title to the thing, unless otherwise repelled by
evidence of lack of jurisdiction, want of due notice to the party, collusion, fraud, or clear mistake of law or fact (Rule 39,
Sec. 48 [a], Rules of Court); and
In case of judgment against a person, the judgment is presumptive evidence of a right as
between the parties and their successors in interest by subsequent title, unless otherwise repelled by
evidence on grounds abovestated (Rule 39, Sec. 48 [b], R,ules of Court).
However, judgments of foreign courts may only be enforced in the Philippines through an
action validly heard in a Regional Trial Court. Thus,*****it is actually the judgment of the
Philippine court enforcing the foreign judgment that shall be executed.
[] Q: Can a foreign arbitral award be enforced in the Philippines under those rules? Explain
briefly. (2%)(2007 Bar Question) SUGGESTED ANSWER: No, a foreign arbitral award cannot be
enforced in the Philippines under the rules on the recognition and enforcement of foreign
judgments above-stated. *****A foreign arbitral award is not a foreign judgment, and pursuant to the
Alternative Dispute Resolution Act of 2004 (R.A. No. 9285), in relation to 1958 New York
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the recognition and
enforcement of the foreign arbitral awards shall be in accordance with the rules of procedure
a. Against a specific thing – conclusive upon title to the thing.

b. Against a person – presumptive evidence of a right as between the
parties and their successors in interest by a subsequent title (Sec. 48, Rule 39).
****In both instances, the judgment may be repelled by evidence of want
of jurisdiction, notice, collusion, fraud,566 or clear mistake of law or fact.
2. Bar 2007: Enforcement of a Judgment of a foreign court:567 Judgment of
foreign courts may only be enforced in the Philippines through an action validly
heard in a RTC. Thus, it is actually the judgment of the Philippine court
enforcing the foreign judgment that shall be executed.
3. Roehr v. Rodriguez: Before our courts can give the effect of res judicata to a
foreign judgment [of divorce] x x x, it must be shown that the parties opposed to
the judgment had been given ample opportunity to do so on grounds allowed
under Rule 39, Section 50 of the Rules of Court (now Rule 39, Section 48, 1997
Rules of Civil Procedure), to wit:
to be promulgated by the Supreme Court. At present, the Supreme Court is yet to promulgate rules of
procedure on the subject matter.
[] Q: How about a global injunction issued by a foreign court to prevent dissipation of
funds against a defendant therein who has assets in the Philippines? Explain briefly. (2%)(2007 Bar
Question) SUGGESTED ANSWER: *****Yes, a global injunction issued by a foreign court to
prevent dissipation of funds against a defendant who has assets in the Philippines may be enforced in
our jurisdiction, subject to our procedural laws. *****As a general rule, no sovereign is bound to
give effect within its dominion to a judgment or order of a tribunal of another country. However,
under the rules of comity, utility and convenience, nations have established a usage among
civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally
respected and rendered efficacious under certain conditions that may vary in different countries (St.
Aviation Services Co., Pte.,Ltd. v. Grand International Airways, Inc., 505 SCRA 30 [2006]; Asiavest
Merchant Bankers (M) Berhad v. Court of Appeals, 361 SCRA 489 [2001]).
566
What defenses may be raised in a suit to enforce a foreign judgment? (2011 BAR)
(A) That the judgment is contrary to Philippine procedural rules.
(B) None, the judgment being entitled to full faith and credit as a matter of general comity among nations.
(C) That the foreign court erred in the appreciation of the evidence.
(D) That extrinsic fraud afflicted the judgment.
567
Q: Under Article 1144 of the New Civil Code, an action upon a judgment must be brought within
10 years from the time the right of action accrues. Is this provision applicable to an action filed in the
Philippines to enforce a foreign judgment? Explain. (2005 Bar Question) SUGGESTED ANSWER:
Article 1144 of the Civil Code is applicable because it is merely an action in a domestic
court to enforce a foreign judgment. Foreign judgments should be treated in the same manner as
domestic judgments.
ALTERNATIVE SUGGESTED ANSWER: Article 1144 of the Civil Code which requires
that an action upon a judgment (though without distinction) must be brought within 10 years from the
time the right of action accrues, does not apply to an action filed in the Philippines to enforce a foreign
judgment. While we can say that where the law does not distinguish, we should not distinguish, still the
law does not evidently contemplate the inclusion of foreign judgments. A domestic judgment may be
enforced by motion within five years and by action within the next five years. That is not the case with
respect to foreign judgments which cannot be enforced by mere motion. A foreign judgment, in fact, is
merely presumptive evidence of a right between the parties and their successors in interests. (Van Dorn
v. Romillo, Jr., 139 SCRA 139 [19851). The word “judgment” refers to one mentioned ill Section 1,
Rule 36, which is filed with the clerk of court. If no period is fixed in our law, the period of
prescription is five (5) years under Art. 1149 of the Civil Code.
[] SEC.50. Effect of foreign judgments.—The effect of a judgment of a

tribunal of a foreign country, having jurisdiction to pronounce the judgment is as
follows: (a) In case of a judgment upon a specific thing, the judgment is conclusive
upon the title to the thing; (b) In case of a judgment against a person, the
judgment is presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title; but the judgment 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.
*It is essential that there should be an opportunity to challenge the
foreign judgment, in order for the court in this jurisdiction to properly determine
its efficacy. In this jurisdiction, our Rules of Court clearly provide that with
respect to actions in personam, as distinguished from actions in rem, a foreign
judgment merely constitutes prima facie evidence of the justness of the claim
of a party and, as such, is subject to proof to the contrary.
———————————————————————————————
3.18. PROVISIONAL REMEDIES
3.18.1. Nature of provisional remedies 464

3.18.2. Jurisdiction over provisional remedies 465
———————————————————————————————
On Provisional remedies
1. They are writs and processes available during the pendency of the action
which may be resorted to by a litigant to preserve and protect certain rights and
interests therein pending rendition, and for purposes of the ultimate effects, of
a final judgment in the case (1996 Bar Question).
2. Provisional remedies under the Rules of Court (PP-RR-S)
a. Preliminary Attachment (Rule 57);
b. Preliminary Injunction (Rule 58);
c. Receivership (Rule 59);
d. Replevin (Rule 60);
e. Support (Rule 61).
*The provisional remedies in civil actions may be availed of in connection
with the civil aspect of a criminal case, insofar as there are applicable (Sec. 1,
Rule 127).
3. Other provisional remedies
a. Temporary Protection Order (TPO) (RA 9262, Anti-Violence Against
Women and Their Children; Rule on Writ of Amparo);
b. Witness Protection Order (WPO) (RA 6981; Rule on the Writ of
Amparo);
c. Inspection Order (IO) (AM 07-9-12, Rule on Writ of Amparo);
d. Production Order (PO) (AM 07-9-12, Rule on Writ of Amparo);
e. Administration of Common Property (AM 02-11-12, Rule on Provisional
Orders);
f. Inspection, Examination of Accounts and Freeze Order (RA 9372,
Human Security Act);
g. Freeze Order under RA 9160 as amended by RA 9194 (Anti-Money
Laundering Act);
h. Seizure and Sequestration of Accounts and Assets (RA 9372, Human
Security Act);
i. Restriction of Travel (RA 9372, Human Security Act);
j. Stay Order (AM 00-8-10, Rules of Procedure on Corporate
Rehabilitation);
k. Hold Departure Order (Criminal cases under Circular 39-97 and Family
cases under AM 02-11-12);
l. Temporary Visitation Rights (AM 02-11-12, Rule on Provisional Orders);

m. Guardian Ad Litem of Child (AM 02-1-19, Rule on Involuntary
Commitment of Children);
n. Temporary Custody of Child (AM 01-1-19 and AM 02-11-12);
o. Spousal and Child Support (AM 02-11-12, Rule on Provisional Orders).
p. Deposit in Reyes v. Lim on DEPOSIT: where there is a hiatus in the law and in
the Rules. If left alone, the hiatus will result in unjust enrichment.
4. Provisional Remedies vs. Special Civil Actions
Provisional Remedies Special Civil Actions
Temporary, auxiliary, and ancillary Basically ordinary civil proceedings; what makes them
remedies available to a litigant for the special are the distinct peculiarities inherent in their
protection and preservation of his rights very nature not found in ordinary civil actions
while the main action is pending
They are writs and processes which They are actions in themselves, but possessing special
presuppose the existence of a main matters that require special procedures (De Fiesta v. Llorente,
action. 25 Phil. 544).
5. Common requirements
a. Affidavits are required to support the issuance of these remedies, except
i. preliminary injunction and
ii. receivership;
b. A bond is required to answer for damages by reason of the improvident
issuance of the writ except on
i. support pendente lite,
ii. inspection of accounts and freeze order (Human Security Act),
iii. inspection and production orders (Rule on the Writ of Amparo),
iv. seizure and sequestration of accounts and assets (Human Security
Act),
v. restriction of travel (Human Security Act) and
vi. hold departure order (Circular 39-97 and AM 01-11-12).
**Recovery of damages from the bond is governed by Sec. 20, Rule 57.
3.18.1. Nature of provisional remedies

1. Nature of PR: Provisional remedies are temporary, auxiliary and ancillary
remedies available to a litigant for the protection of his rights while the main
action is pending. They are writs and processes which are not the main actions
and they presuppose the existence of a main action. They are temporary
measures availed of during the pendency of the action and ancillary because
they are mere incidents and are dependent upon the result of the main action
(Regalado, 2010). They are INTERIM, ANCILLARY AND PROVISIONAL.
*NB: Injunction can be a main action if it seeks to permanently enjoin
the defendant through a final injunction (not preliminary) issued by the court and
contained in the judgment (PEZA v. Carantes, et al., G.R. No. 181274, June 23,
2010).
2. Purpose of provisional remedies568
a. To preserve or protect their rights or interests while the main action is
pending;
b. To secure the judgment;
c. To preserve the status quo; or
d. To preserve the subject matter of the action.
3.18.2. Jurisdiction over provisional remedies

1. GR: Applications must be filed with the court having jurisdiction over the
pending principal action. Even an inferior court may grant such remedy.
However, where the main action is for support, the provisional remedy of support
may not be granted by a Municipal Trial Court because the main action is within the jurisdiction
of the Family Court (Riano, 2012).
2. XPN: In criminal actions, as long as the civil aspect is tried together with it,
the RTC or MTC having jurisdiction may also issue the remedy of support
pendente lite (EG: Art 345 (3) RPC, in crimes against chastity, “in every case to
support the offspring…”).
3. When available:
a. Attachment, injunction and support – may be availed of before final
judgment;
b. Replevin – may be availed of anytime before the answer;
c. Receivership – may be availed at any stage of the action and even after
final judgment.
4. When to apply and in what principal actions available****
PR When to Apply In What Principal Action/s
Preliminary At the commencement of the 1. Recovery of liquidated sum of money

Attachment
(Rule 57) action or at any time before entry 2. Recovery of possession of property unjustly
of judgment or fraudulently taken, detained or converted
Preliminary At any stage of the action prior to Action for injunction, whether or not coupled
Injunction
(Rule 58) the judgment or final order with other prayers
Receivership At any stage of the proceedings 1. Receivership action

(Rule 59)
and even up to the stage after the 2. Real action involving title to or possession
judgment has become final and of realty
executory as means of enforcing 3. Foreclosure of mortgage
judgment 4. Dissolution of corporation
568
What is the purpose of provisional remedies? (1996 Bar Question) *****The purpose of provisional
remedies is to preserve or protect the rights or interests of the parties during the pendency of the
principal action. (Calo vs. Roldan, 76 Phil. 445)
Replevin At the commencement of the 1. Recovery of possession of personal property

(Rule 60)
action or at any time before 2. Recovery of personal property subject of
answer chattel mortgage as a preliminary step to
extrajudicial foreclosure
Support At the commencement of the prior 1. Support, whether as the main case or as one
Pendente
Lite action or proceeding or at any of several causes of action
(Rule 61) time prior to judgment or final 2. Criminal actions where the civil liability
order includes support of the offspring as a
consequence of the crime, i.e. rape, seduction
———————————————————————————————
3.18.3. Preliminary attachment [Rule 57]
a) Grounds for issuance of writ of attachment 468

b) Requisites 470
c) Issuance and contents of order of attachment; affidavit and bond 471
d) Rule on prior or contemporaneous service of summons 472
e) Manner of attaching real and personal property; when property attached is claimed by third
person 473
f) Discharge of attachment and the counter-bond 476
g) Satisfaction of judgment out of property attached 480
———————————————————————————————
ON PRELIMINARY ATTACHMENT
1. It is a provisional remedy issued upon order of the court where an action is
pending to be levied upon the property or properties of the defendant therein, the
same to be held thereafter by the sheriff as security for the satisfaction of
whatever judgment that might be secured in the said action by the attaching
creditor against the defendant (Sofia Torres v. Satsatin, G.R. No. 166759,
November 25, 2009).
2. It is strictly construed against the applicant (Wee v. Tankiansee, G.R. No.
171124, February 13, 2008).
*NB: There is no separate action called preliminary attachment. It is
not a distinct proceeding and is availed of within a principal action because it is a
mere provisional remedy. The grant of remedy is addressed to the discretion of
the court (Riano, 2012).
3. Nature of proceeding: It is a proceeding in rem; it is against the particular
property, enforceable against the whole world (Binan Steel Corporation v. Court
of Appeals, G.R. No. 142013, October 15, 2002).
*****Jurisdiction over the person of the defendant is NOT
REQUIRED as long as the court acquires jurisdiction over the res (Biaco v.
Countryside Rural Bank, G.R. No. 161417, Feb. 8, 2007). When availed of and is
granted in an action purely in personam, it **converts the action to one that
is quasi in rem. This transformation of the nature of the action dispenses with
the need for acquiring jurisdiction over the person of the defendant. Since
attachment is directed against the property of the defendant, the court may
validly proceed with the action as long as jurisdiction over the property is
acquired (4 Am. Jur., 556-557).
4. Purposes of preliminary attachment
a. To seize the property of the debtor in advance of final judgment and to
hold it for purposes of satisfying said judgment; or
b. To enable the court to acquire jurisdiction over the action in those

instances where personal service of summons on the creditor cannot be effected
(Mabunag v. Gallimore, 81 Phil 354).
5. Who may apply for a preliminary attachment? Any party can avail of
preliminary attachment as long as any of the grounds therefor exists. He may be:
a. The defendant on his counterclaim;
b. A co-party on his cross-claim; and
c. A third-party plaintiff on his third-party claim (Sec. 1, Rule 57; Regalado,
2010).
6. When to apply for preliminary attachment
a. At the commencement of the action; or
b. At any time before entry of judgment (Sec. 1, Rule 57).
*The application may be incorporated in the verified complaint alleging all
the grounds, and complying with all the requisites for the grant of the application.
7. Kinds of Attachment569******570
569
Distinguish attachment from garnishment. (2%) Attachment and garnishment are distinguished
from each other as follows: *****Attachment is a provisional remedy that effects a levy on property
of a party as security for the satisfaction of any judgment that may be recovered, while garnishment
is a levy on debts due the judgment obligor or defendant and other credits, including bank
deposits, royalties and other personal property not capable of manual delivery under a writ of execution or a
writ of attachment.
570
Q: Briefly discuss/differentiate the following kinds of Attachment: preliminary attachment,
garnishment, levy on execution, warrant of seizure and warrant of distraint and levy. (2012 BAR)******
A: Preliminary attachment is a provisional remedy under Rule 57 of the Rules of Court. It
may be sought at the commencement of an action or at any time before entry of judgment where
property of an adverse party may be attached as security for satisfaction of any judgment, where
this adverse party is about to depart from the Philippines, where he has intent to defraud or has
committed fraud, or is not found in the Philippines. An affidavit and a bond is required before the
preliminary attachment issues. It is discharged upon payment of a counter bond.
Garnishment is a manner of satisfying or executing judgment where the sheriff may levy
debts, credits, royalties, commissions, bank deposits and other personal property not capable
of manual delivery that are in the control or possession of third persons and are due the
judgment obligor. Notice shall be served on third parties. The third party garnishee must make a
written report on 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 (Section 9[c], Rule 39).
Levy on execution is a manner of satisfying or executing judgment where the sheriff may
sell property of the judgment obligor if he is unable to pay all or part of the obligation in cash,
certified bank check or any other manner acceptable to the obligee. If the obligor does not
chose which among his property may be sold, the sheriff shall sell personal property first and
then real property second. He must sell only so much of the personal or real property as is
sufficient to satisfy judgment and other lawful fees (Sec. 9 [b], Rule 39).
Warrant of seizure is normally applied for with a search warrant, in criminal cases. The
warrant of seizure must particularly describe the things to be seized. While it is true that the
property to be seized under a warrant must be particularly described therein and no other property can
be taken thereunder, yet the description is required to be specific only insofar as the circumstances will ordinarily
allow. An application for search and seizure warrant shall be filed with the following: (a) Any court
within whose territorial jurisdiction a crime was committed; (b) For compelling reasons stated in
Prelimi It is one issued at the commencement of the action or at any time before entry of the
nary
Attach judgment as SECURITY for the satisfaction of any judgment that may be recovered in the
ment cases provided for by the rules. The court takes custody of the property of the party
against whom the attachment is directed. This is the regular form of attachment which refers
to corporeal property in the possession of the party
Levy on It is the act of taking possession and control by the sheriff or proper officer of sufficient
executi
on property of the losing party to satisfy the decision, order, or award. A sale not preceded by
a valid levy is void and the purchaser acquires no title.
Garnis It is the levy of money, goods, or chattels, and/or an interest thereon, belonging or owing
hment
to a losing party in the possession or control of a third party. The proceeding by garnishment
is a specie of attachment for reaching credits belonging to the judgment debtor and owing to him
from a stranger to the litigation. By means of the citation the stranger becomes a forced
intervenor; and the court, having acquired jurisdiction over him by means of the citation,
requires him to pay his debt, not to his former creditor, but to the new creditor, who is
creditor in the main litigation (Bautista v. Barredo 1965). **Garnishment does not involve the
actual seizure of the property which remains in the hands of the garnishee. It refers to money,
stocks, credits and other incorporeal property which belong to the party but are in the
possession or under control of a third person. Garnishment does not lie against the funds of the
regular departments or offices of the Government, but funds of public corporations are not
exempt from garnishment (PNB v. Palaban 1978)
a) Grounds for issuance of writ of attachment

1. Depart571 – Actions for the recovery of a specified amount of money or
damages, other than moral and exemplary, on a cause of action arising from law,
contract, quasi contract, delict or quasi-delict against a party who is about to
depart from the Philippines which intent to defraud his creditors;
the application, any court within the judicial region where the crime was committed if the place of the
commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.
However, if the criminal action has already been filed, the application shall only be made in the court
where the criminal action is pending.
Warrant of distraint and levy is remedy available to local governments and the BIR in tax
cases to satisfy deficiencies or delinquencies in inheritance and estate taxes, and real estate
taxes. Distraint is the seizure of personal property to be sold in an authorized auction sale. Levy is
the issuance of a certification by the proper officer showing the name of the taxpayer and the tax,
fee, charge or penalty due him. Levy is made by writing upon said certificate the description of the
property upon which levy is made.
571
Q: On June 18, 1989, Mario Reyes executed a promissory note for P50,000.00 payable to Norma
Alajar not later than June 18,1990. Mario Reyes defaulted in the payment of the promissory note and a
collection suit was filed against him before the Regional Trial Court of Quezon City. After the
complaint had been filed, Norma Alajar discovers that Mario Reyes petition for the issuance of an
immigrant visa was approved by the United States Embassy, and that Mario Reyes had been
disposing of all his properties. What remedy may be availed of by Norma Alajar to protect her interest?
Explain your answer. (1990 Bar Question) Answer:
Norma Alajar should file a verified application for the Issuance of a writ of preliminary
attachment on the ground that Mario Reyes is about to depart from the Philippines and had been
disposing of all his properties with the intent to defraud his creditors. (Sec. 1(a) and (e) of Rule 57).
2. Embezzlement – Actions for money or property embezzled or fraudulently

misapplied or converted to his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker agent, or clerk, in the course of his
employment as such, or by other person in a fiduciary capacity, or for a willful
violation of duty;
3. Recover possession – Actions to recover the possession of property unjustly or
fraudulently taken, detained or converted, when the property, or any part thereof,
has been concealed, removed, or disposed of to prevent its being found or taken
by the applicant or an authorized person;
4. Fraud – Actions against a party who has been guilty of a fraud in contracting
the debt or incurring the obligation upon which the action is brought or in the
performance thereof; NB: *****Includes both kinds of fraud, i.e. fraud in
contracting the obligation and fraud in the performance572 thereof (Regalado,
2012).
5. Defraud creditors- Actions against a party who has removed or disposed of his
property, or is about to do so, with intent to defraud his creditors;
6. Actions against non-resident not found in the Philippines, or person upon
whom summons may be served by publication (Sec. 1 Rule 57).
b) Requisites
1. An affidavit executed by the applicant, or of some other person who personally
knows the facts showing that:
a. A sufficient cause of action exists;
b. The case must be any of those where preliminary attachment is proper;
c. There is no sufficient security for the claim sought to be enforced;
d. The amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for which the
order is granted above all legal counterclaims.
*****Failure to allege matters required under Sec. 3, Rule 57 renders the
writ totally defective as the judge issuing the writ acts in excess of jurisdiction
(K.O Glass Construction Co., Inc. v. Valenzuela, et al., G.R. No. L-48756,
September 11, 1982; Regalado, 2012).
572
Arthur, a resident foreigner sold his car to Bren. After being paid but before delivering the car,
Arthur replaced its original sound system with an inferior one. Bren discovered the change, rejected the
car, and demanded the return of his money. Arthur did not comply. Meantime, his company reassigned
Arthur to Singapore. Bren filed a civil action against Arthur for contractual fraud and damages. Upon
his application, the court issued a writ of preliminary attachment on the grounds that (a) Arthur is a
foreigner; (b) he departed from the Philippines; and (c) he was guilty of fraud in contracting with Bren.
Is the writ of preliminary attachment proper? (2011 BAR)
(A) No, Arthur is a foreigner living abroad; he is outside the court’s jurisdiction.
(B)Yes, Arthur committed fraud in changing the sound system and its components before
delivering the car bought from him.
(C) Yes the timing of his departure is presumptive evidence of intent to defraud.
(D) No, since it was not shown that Arthur left the country with intent to defraud Bren.
2. Attachment bond – a bond executed to the adverse party in an amount to be

fixed by the judge, not exceeding the plaintiff’s claim, conditioned that the latter will
pay all the costs which may be adjudged to the adverse party and all damages
which he may sustain by reason of the attachment, if the court shall finally adjudge
that the applicant was not entitled thereto (Secs. 3 and 4, Rule 57).
****NB: A hearing on a motion or application for preliminary attachment
is not generally necessary unless otherwise directed by the trial court (Toledo
v. Burgos, GR. No. 75466, December 19, 1988). This is because an **order of
attachment may also be issued ex parte.
c) Issuance and contents of order of attachment; affidavit and bond

1. Stages in the issuance of a writ of attachment (OWI)
a. The court issues the order granting the application;
b. The writ of attachment is issued pursuant to the order granting the writ; and
c. The writ is implemented.
**For the initial two stages, it is not necessary that jurisdiction over
the person of the defendant should first be obtained. However, to validly
implement the writ, it is required that the court acquire jurisdiction over the
defendant for without such jurisdiction, the court has no power and authority to
act in any manner against the defendant. Thus, any order issued by the court
will not bind the defendant (Mangila v. CA, G.R. No. 125027, August 12, 2002).
2. Issuance of order of attachment—The writ of preliminary attachment may be
issued:
a. Ex parte573 and even before574 summons is served upon the defendant.
573
Q: As a rule, courts may not grant an application for provisional remedy without complying with
the requirements of notice and hearing. These requirements, however, may be dispensed with in an
application for: (2014)
(A) writ of preliminary injunction
(B) writ for preliminary attachment
(C)an order granting support pendente lite
(D)a writ of replevin
A: (B) writ for preliminary attachment. Under Section 2, Rule 57 of the Rules of Court, preliminary
attachment may be issued ex parte or upon motion with notice and hearing.
(D) writ of replevin. Under Section 3, Rule 60, the Court shall issue an order and the
corresponding writ of replevin, upon the filing of such affidavit and approval of the bond. There are
no requirements of prior notice and hearing.
574
Q: Upon failure of X to pay the promissory note for P100,000.00 which he executed in favor of
Y, the latter filed a complaint for a sum of money with application for the issuance of a writ of
preliminary attachment alleging therein that X is about to dispose of his properties in fraud of his
creditors. (1991 Bar Question)
(a) May the court issue the writ immediately upon the filing of the complaint and before
service of summons? Answer: (a) Yes, because Sec. 1 of Rule 57 provides that writ of preliminary
attachment may be obtained at the commencement of the action. Another Answer: In the case of
Sievert v. CA, 168 SCRA 692, it was ruled that a hearing on the application for a writ of preliminary
attachment may not be held without prior service of summons.
An ex parte issuance of the writ is **intended to pre-empt575 any possible

disposition of property by the adverse property to the detriment of the attaching
creditor and thus defeat the very purpose of attachment (Mindanao Savings &
Loan Association, Inc. v. CA, G.R. No. 84481, April, 18, 1989). The application
for preliminary attachment ex parte may be denied because the fundamental
requisites under Rule 57, Section 1 did not exist, and not because ex parte
applications are per se illegal (Davao Light & Power Co., Inc v. CA, G.R. No.
93262 December 29, 1991).
b. Upon motion and notice of hearing, by the court in which the action is
pending and may even be issued by the CA or the SC (Sec. 2, Rule 57); A
hearing on a motion or application for preliminary attachment is not generally
necessary unless otherwise directed by the trial court (Toledo v. Burgos, G.R.
No. L-75466, December 19, 1988).
3. Contents of the order of attachment: It must require the sheriff of the court to
attach so much of the property in the Philippines of the party against whom it is
issued, not exempt from execution, as may be sufficient to satisfy the
applicant’s demand, unless such party makes deposit or gives a bond in an amount equal to
that fixed in the order, which may be the amount sufficient to satisfy the
applicant’s demand or the value of the property to be attached as stated by the
applicant, exclusive of costs.
*Several writs may be issued at the same time to the sheriffs of the
courts of different judicial regions.
d) Rule on prior or contemporaneous service of summons

1. An order of attachment may be granted ex parte. Its grant or denial rests
upon the sound discretion of the court.
2. ******Enforcement of the writ of preliminary attachment must be
(b) If service of summons is indispensable before the writ may be issued, is hearing on the
application necessary? Answer: No, because a writ of preliminary attachment maybe issued ex-
parte. {Toledo v. Judge Burgos, 164 SCRA 513: Cosiquien v. CA, 188 SCRA 619)
(c) If the writ was issued and X filed a motion to quash the attachment, may this motion be
granted ex-parte? Answer: (c) No, because whether the basis of the motion to quash the attachment
is a cash deposit or counterbond on the ground that the same was improperly or irregularly issued, a
hearing is necessary. (Secs. 12 and 13 of Rule 57; Mindanao Savings & Loan Association u. CA, 172
SCRA 480)
575
Bar 2001: The reason why the order may be issued ex parte is: that requiring notice to the adverse
party and a hearing would defeat the purpose of the provisional remedy and enable the adverse
party to abscond or dispose of his property before a writ of attachment issues. (Mindanao Savings
and Loan Association, Inc. v. Court of Appeals, 172 SCRA 480).
PRECEDED by or576 SIMULTANEOUSLY ACCOMPANIED577 by service

of summons, copy of complaint, application and affidavits for the attachment
and the bond upon the adverse party. Jurisdiction must first be acquired
through valid service of summons first before a preliminary attachment may be
enforced. *****Hence, it is possible that the issuance of the writ of preliminary
attachment ex-parte was valid but the implementation thereof was not effective
without the service of summons. The subsequent service of summons does
not cure the irregularities that attended the enforcement of the writ.578
*NB: Writ of preliminary attachment may be granted and issued even
576
Q: Bayani, an overseas worker based in Dubai, issued in favor of Agente, a special power of
attorney to sell his house and lot. Agente was able to sell the property but failed to remit the
proceeds to Bayani, as agreed upon. On his return to the Philippines, Bayani, by way of a demand
letter duly received by Agente sought to recover the amount due him. Agente failed to return the
amount as he had used it for the construction of his own house. Thus, Bayani filed an action
against Agente for sum of money with damages. Bayani subsequently filed an ex- parte motion for
the issuance of a writ of preliminary attachment duly supported by an affidavit. The court granted
the ex-parte motion and issued a writ of preliminary attachment upon Bayani’s posting of the required
bond. Bayani prayed that the court’s sheriff be deputized to serve and implement the writ of
attachment. On November 19, 2013, the Sheriff served upon Agente the writ of attachment and
Agente levied on the latter’s house and lot. On November 20, 2013, the Sheriff served upon Agente
summons and a copy of the complaint. On November 22, 2013, Agente filed an Answer with
Motion to Discharge the Writ if Attachment alleging that at the time the writ of preliminary
attachment was issued, he has not been served with summons and, therefore, it was improperly issued.
(2014) a. Is Agente correct?
A: NO. Agente is not correct. Section 2, Rule 57 provides that a writ of attachment may be
issued ex parte or upon motion with notice and hearing by the Court in which the action is pending.
Under the Rules, the applicant of the writ is only required to (i) submit an affidavit and (ii) post a
bond before the court can validly issue the writ of attachment. The Rules do not require prior
service of summons for the proper issuance of a writ of attachment. (Sofia Torres v. Nicanor
Satsatin, G.R. No. 166759, November 25, 2009). Accordingly, the issuance of the writ of attachment
is valid notwithstanding the absence of a prior service of summons to Agnete.
b. Was the writ of preliminary attachment properly executed?A: NO. The writ of preliminary
attachment was not properly executed. Although a writ of attachment may issue even before
summons is served upon the defendant, the same, however, may not bind and affect the
defendant until jurisdiction over his person is obtained (Davao Light and Power Co., Inc. v. Court
of Appeals, G.R. No. 93262 December 29, 1991). *****Thus, the writ of preliminary attachment must
only be served simultaneous or at least after the service of summons to the defendant (Sofia
Torres v, Nicanor Satsatin, G.R. No. 166759, November 25, 2009).
577
Q: A sues B for collection of a sum of money. Alleging fraud in the contracting of the loan, A
applies for preliminary attachment with the court. The Court issues the preliminary attachment after A
files a bond. While summons on B was yet unserved, the sheriff attached B's properties. Afterwards,
summons was duly served on B. 8 moves to lift the attachment. Rule on this. (2012 BAR)
A: I will grant the motion since no levy on attachment pursuant to the writ shall be enforced
unless it is preceded or contemporaneously accompanied by service of summons. There must the prior
or contemporaneous service of summons with the writ of attachment (Sec. 5, Rule 57).
578
The writ of attachment should be re-served after the service of summons. (Davao Light and Power
Co., Inc. Vs. Court of Appeals, 204 -SCRA 343; Onate vs. Abrogar, 241 SCRA 659)
before summons is served upon the defendant.579 However, the writ may not be
enforced and may not be validly implemented unless preceded by a service
of summons upon the defendant, or simultaneously accompanied by service of
summons, a copy of the complaint, the application for attachment, the order of
attachment and the attachment bond (Davao Light & Power Co., Inc. v. CA, G.R.
No. 93262, December 29, 1991).
*NB: Where the writ of preliminary attachment had already been
implemented, the **subsequent service of summons does not confer a
retroactive acquisition of jurisdiction over her person because the law does
not allow for retroactivity of a belated service (Torres v. Satsatin, G.R. No.
166759, November 25, 2009).580
3. *****Instances when prior or contemporaneous service of summons does not
find application
579
[] Bar 2005: Alfred filed an action against Banjo for collection of sum of money with an ex-parte
application for a writ of preliminary attachment which was granted by the trial court. A notice of
garnishment was served by the sheriff upon the bank and summons was subsequently served upon
Banjo. Banjo then filed a motion to dissolve the writ of preliminary attachment on the ground that
the court did not acquire jurisdiction over his person as the writ was served ahead of the
summons. Should the motion be granted? A: No, the motion should be denied. ******The fact that
the writ of preliminary attachment was served ahead of the summons did not affect the
jurisdiction of the court over his person. It makes the writ unenforceable, however, all that is
required is to re-serve the writ.
580
[] Bar 2005: Katy filed an action against Tyrone for collection of the sum of P1 Million in the
Regional Trial Court, with an ex-parte application for a writ of preliminary attachment. Upon
posting of an attachment bond, the court granted the application and issued a writ of preliminary
attachment. Apprehensive that Tyrone might withdraw his savings deposit with the bank, the sheriff
immediately served a notice of garnishment on the bank to implement the writ of preliminary
attachment. The following day, the sheriff proceeded to Tyrone's house and served him the
summons, with copies of the complaint containing the application for writ of preliminary attachment,
Katy's affidavit, order of attachment, writ of preliminary attachment and attachment bond. Within 15
days from service of the summons, Tyrone filed a motion to dismiss and to dissolve the writ of
preliminary attachment on the following grounds: (i) the court did not acquire jurisdiction over his
person because the writ was served ahead of the summons; (ii) the writ was improperly implemented;
and (iii) said writ was improvidently issued because the obligation in question was already fully paid.
Resolve the motion with reasons.
A: The motion to dismiss and to dissolve the writ of preliminary attachment should be denied.
******The fact that the writ of attachment was served ahead of the summons did not affect the
jurisdiction of the court over his person. It makes the writ unenforceable (Sec. 5, Rule 57).
However, all that is needed to be done is to re-serve the writ (Onate v. Abrogar, G.R. No. 197393,
February 23, 1985).
The writ was improperly implemented. Serving a notice of garnishment, particularly before
summons is served, is not proper. It should be a copy of the writ of attachment that should be served
on the defendant, and a notice that the bank deposits are attached pursuant to the writ (Sec. 7(d), Rule
57).
The writ was improvidently issued if indeed it can be shown that the obligation was already
fully paid. The writ is only ancillary to the main action (Sec. 13, Rule 57). The **alleged payment of
the account cannot serve as a ground for resolving the improvident issuance of the writ,
because this matter delves into the merits of the case, and requires full-blown trial. Payment, however,
serves as a ground for a motion to dismiss.
a. Summons could not be served personally or despite diligent efforts

b. Summons could not be served by substituted service despite diligent
efforts
c. The defendant is a resident of the Philippines temporarily absent there
from
d. The defendant is a non-resident of the Philippines
e. ****The action is one in rem or quasi in rem
e) Manner of attaching real and personal property; when property attached

is claimed by third person
1. Duty of Sheriff: The sheriff enforcing the writ shall without delay and with all
reasonable diligence attach, to await judgment and execution in the action, only
so much of the property in the Philippines of the party against whom the writ is
issued, not exempt from execution, as may be sufficient to satisfy the applicant’s
demand, unless the former makes a deposit with the court from which the writ is issued, or gives
a counter-bond executed to the applicant, in an amount equal to the bond fixed by
the court in the order of attachment or to the value of the property to be attached,
exclusive of costs.
No levy on attachment pursuant to the writ shall be enforced unless it is
preceded, or contemporaneously accompanied, by service of summons,
together with a copy of the complaint, the application for attachment, the
applicant’s affidavit and bond, and the order and writ of attachment, on the
defendant within the Philippines (Sec. 5, Rule 57).
2. Manner of attaching real and personal property—Real and personal property
shall be attached by the sheriff executing the writ in the following manner:
a. Real property, growing crops thereon, or interest therein;
i. By filing with the Registry of Deeds a copy of the order;
ii. Together with a description of the property attached;
iii. A notice that it is attached, or that such real property and any
interest therein held by or standing in the name of such other person are attached; and
iv. By leaving a copy of such order, description, and notice with the
occupant of the property, if any, or with such other person or his agent if found
within the province (Sec. 7(a), Rule 57).
**Where the property has been brought under the operation of either
the Land Registration Act or the Property Registration Decree, the notice shall
contain a reference to the number of the certificate of title, the volume and page in the
registration book where the certificate is registered, and the registered owner or
owners thereof (Ibid.).
b. Personal property capable of manual delivery: Sheriff taking into
custody and safely keeping it after issuing the corresponding receipt therefor.
c. Stocks, shares or interest in stocks or shares of any corporation or
company: By leaving with the president or managing agent thereof, a copy of
the writ and a notice stating that the stock or interest of the party against whom
the attachment is issued, is attached in pursuance of such writ;

d. Debts and credits, bank deposits, financial interests, royalties,
commission and other personal property not capable of manual delivery: By
leaving copy of the writ and notice of attachment with person owing or having
custody over the property
e. Interest in the estate of a decedent: By serving copy of writ and notice
of attachment upon the:
i. Executor or administrator of estate or other personal
representative of the decedent;
ii. Clerk of Court where estate is being settled; and
iii. Heir, devisee, or legatee;
f. *****Property in custodia legis:581 a copy of writ shall be filed with the
proper court or quasi-judicial agency and notice of the attachment serves upon the
custodian of such property (Sec. 7, Rule 57).
3. Salary subject of attachment: It can only be attached at the end of the month
or on the payday provided by contract or law, as, prior thereto; the same do not
constitute money “due” to the debtor from his employer. Furthermore, **if
the employer is the Government, before payday, such funds are public funds and are exempt
from attachment or execution (Garcia v. Castillo, 43 Phil 364; Regalado, 2012).
4. Wages due to a laborer
*GR: The laborer's wage shall not be subject to execution or attachment
(Art. 1708, NCC).
**XPN: For debts incurred for food, shelter, clothing and medical
attendance (Gaa v. CA, G.R. No. L-44169, December 3, 1985).
*NB: Art. 1708 used the word “wage" and not "salary" in relation to
"laborer" when it declared what are to be exempted from attachment and
execution. The term “WAGES” as distinguished from "salary", applies to the
compensation for manual labor, skilled or unskilled, paid at stated times,
and measured by the day, week, month, or season, while "SALARY" denotes a
higher degree of employment, or a superior grade of services, and implies a
position of office: by contrast, the term wages " indicates considerable pay for a
lower and less responsible character of employment, while "salary" is suggestive
of a larger and more important service (35 Am. Jur. 496).
5. Government funds:
a. If government enters into commercial business, it abandons its sovereign
capacity and is to be treated like any other corporation. Consequently, its
funds may be subject to a duly issued writ of garnishment or writ of execution.
b. If intended for a public purpose, public funds of a municipality are not
subject to levy or execution and such funds cannot be disbursed without a
581
[] Bar 1999: In a case, the property of an incompetent under guardianship was in custodia legis. Can
it be attached? YES. In such case, a copy of the writ of attachment shall be filed with the proper
court and the notice of the attachment shall be served upon the custodian of such property.
lawful appropriation or statutory authority as required by law. **Even when

the immunity of state is relaxed, the power of the court ends when judgment is rendered
and state is at liberty to determine whether or not to appropriate funds for the satisfaction of the
judgment (Malong v. PNR, et al., G.R. No. L-49930, August 7, 1985; PNB v. CIR,
G.R. No. L-032667, January 31, 1978; Regalado, 2012).
6. **PRINCIPLE OF SENIORITY OF LIENS: Where property attached by
the judgment creditor had previously been mortgaged, the judgment
creditor’s lien is inferior to that of the mortgagee, which must first be
satisfied in the event of foreclosure. In reality, what was attached by the
judgment creditor was merely the judgment debtor’s right or equity of
redemption (Top Rate International Services, Inc. v. IAC, G.R. No. 67496, July
7, 1986).
7. Preference between duly registered attachment by levy and lis pendens:
**Preference is given to a duly registered attachment over a subsequent notice of lis
pendens, even if the beneficiary of the notice acquired the subject property before
registration of the attachment. Such notice does not establish a lien or an
encumbrance on the property affected. As the name suggests, a **notice of lis
pendens with respect to a disputed property is intended merely to inform
third persons that any of their transactions in connection therewith -- if entered into subsequent
to the notation -- would be subject to the result of the suit (Du v. Stronghold Insurance Co.,
Inc., G.R. No. 156580, June 14, 2004).
8. Preference between duly registered attachment by levy and prior sale of
property: ******A levy on execution duly registered takes preference over a
prior unregistered sale; and that even if the prior sale is subsequently
registered before the sale in execution but after the levy was duly made, the validity of the
execution sale should be maintained, because it **retroacts to the date of the
levy; otherwise, the preference created by the levy would be meaningless and
illusory (Defensor v. Brillo, G.R. No. L-7255, February 21, 1956).582
582
Q: As the decision of the Regional Trial Court became final and executory on November 15,1987,
plaintiff, the prevailing party, filed a motion for a writ of execution. The writ of execution was issued
on December 1, 1987. Pursuant to the writ, the sheriff levied upon the house and lot of defendant
and scheduled the sale thereof for public auction on January 26, 1988. The auction sale was repeatedly
postponed upon request of defendant who, in the meantime, was making partial payments to
plaintiff. The last scheduled auction sale was on November 3, 1992 but the same did not materialize
because of the request of the defendant which was granted by plaintiff on account of the partial
payment made by defendant on the date. As there still remained an unpaid balance as of July 15. 1993,
plaintiff filed a motion for the issuance of an alias writ of execution of that date. Defendant opposed
the motion on the ground that more than five years had lapsed from the finality of the decision such
that plaintiffs remedy is to file a new action for revival of judgment. Should the motion for issuance of
an alias writ of execution be granted? Explain. (1993 Bar Question) Answer:
Yes, because the running of the five-year period from the date the decision became final
and executory on November 15, 1987 within which the judgment could be executed on motion, was
interrupted or suspended by the agreement of the parties to suspend enforcement of the
8. ******Remedies available if the property is being claimed by third person (TII).

Difference among the three is the timing583 to file the action.
a. ******A TERCERIA or third party claim584 - The third person whose
property was levied on must make an affidavit of his title thereto, or right to the
possession thereof stating the grounds of such right and title and serves such
affidavit upon the sheriff while the latter has possession of the attached property and a
copy thereof upon the attaching property;585
*GR: The sheriff is not bound to keep the property.
*XPN: The sheriff is bound to keep the property when the attaching
party, on demand of the sheriff, files a bond approved by the court to indemnify
judgment on account of partial payments made by defendant. (Torralba us. De Los Angeles, 96
SCRA 69).
Alternative Answer: Since there was already a levy on execution, there was no need for an
alias writ of execution.
583
*****NB: The timing of the filing of the third-party claim is important because the timing
determines the remedies that a third party is allowed to file. A third party claimant under Section 16
of Rule 39 may vindicate his claim to the property in a separate action since intervention is no longer
allowed upon rendition of judgment. A third party claimant under Section 14 of Rule 57, on the other
hand, may vindicate his claim to the property by intervention because he has a legal interest in the matter in
litigation (Fort Bonifacio Development Corporation v. Yllas Lending Corporation, G.R. No. 158997,
October 6, 2008).
584
[] Bar 2000: Andrei's real property is being attached by the sheriff in a civil action for damages
against Bernard. Andrei claims that he is not a party to the case; that his property is not involved in
said case; and that he is the sole registered owner of said property. Under the Rules of Court, what
must Andrei do to prevent the sheriff from attaching his property? If the real property has been
attached, the remedy is to **file a third-party claim. The third-party claimant should make an
affidavit of his title to the property attached stating the grounds of his title thereto and serve such
affidavit upon the sheriff while the latter has possession of the attached property and a copy thereof upon the
attaching party. The **third-party claimant may also intervene or file a separate action to
vindicate his claim to the property involved and secure the necessary reliefs such as preliminary
injunction which will not be considered as interference with a court of coordinate jurisdiction.
585
Q: Enforcing a writ of execution issued by the Pasig Regional Trial Court in a civil action, the
sheriff attached several pieces of machinery and equipment found in defendant’s place of
business. Antonio Sadalay filed with the sheriff an affidavit of third-party claim stating that the
attached properties belong to him, not to the defendant. (1991 Bar Question)
(a) Can Sadalay intervene in the case and ask the Pasig RTC to resolve his third- party claim?
Answer: *****No, Sadalay may not intervene in the case because intervention is allowed only before
or during the trial of the case. In this case there is already a final and executory Judgment. (Sec. 1
of Rule 12; Bayer Phils. v.Agana. 63 SCRA 355) However, he may ask the Pasig RTC to resolve
prelimi-narily whether the sheriff acted rightly or wrongly in levying execution on the properties in
question. (Ong v. Tating, 149 SCRA 265)
(b) If Sadalay decides to file a separate action in the Regional Trial Court in Makati to
vindicate his claim, may he validly obtain a writ of injunction from the Makati RTC to enjoin the sale
in execution of the levied properties? Answer: Yes, because a judgment rendered in his favor by the
Makati court declaring him to be the owner of the properties levied on would not constitute
interference with the powers or processes of the Pasig Court which rendered the judgment to
enforce the execution. If that is so, an interlocutory order such as the writ of preliminary
injunction against the sheriff, upon a claim and prima facie showing of ownership, cannot be
considered as such interference. (Abiera v. CA, 45 SCRA 314; Sy v. Discaya, 181 SCRA 378)
the third-party claimant in a sum not less than the value of the property levied upon.
b. INDEPENDENT ACTION to recover his property; or
c. MOTION FOR INTERVENTION – available only before
judgment is rendered (Ong v. Tating, G.R. No. L-61042, April 15, 1987).
9. Sale of property covered by a writ of preliminary attachment before entry of
judgment
*GR: Property may not be sold. A writ of preliminary attachment is a
provisional remedy and its issuance does not have the effect of a final
judgment over the property attached.
*XPN: An attached property may be sold after levy on attachment and
before entry of judgment whenever it shall be made to appear to the court in
which the action is pending, upon hearing with notice to both parties,
a. that the attached property is perishable or
b. that the interests of all the parties to the action will be subserved by the
sale of the attached property (Sec. 11, Rule 57; China Banking Corporation v.
Asian Corporation and Development Corporation, G.R. No. 158271, April 8,
2008; Riano, 2009).
f) Discharge of attachment and the counter-bond586

1. After a writ of attachment has been enforced, the party whose property has
been attached, or the person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the security given.
2. How to prevent the attachment******
a. By making a deposit or giving a bond in an AMOUNT EQUAL to that
fixed in the order, which may be the amount sufficient to satisfy the applicant’s
demand or the value of the property to be attached as stated by the applicant,
exclusive of costs (Sec. 2, Rule 57);
b. By raising the defense that the property covered is exempt from
execution (Ibid.).
3. Two ways of discharging the attachment
a. To file a counter-bond587 in accordance with Sec 12 of Rule 57;
586
[] Bar 2002: Roy obtained a writ of preliminary attachment upon a bond of P1 million. The writ was
levied on Ronald's property, but it was discharged upon the posting by Ronald of a counter-bond
in the same amount of P1 million. After trial, the court rendered judgment finding that Roy had no
cause of action against Ronald and that he had sued out the writ of attachment maliciously.
Accordingly, the court dismissed the complaint and ordered Roy and its surety to pay jointly to
Ronald P1.5 million as actual damages, P0.5 million as moral damages and P0.5 million as exemplary
damages. Evaluate the soundness of the judgment from the point of view of procedure.
A: The judgment against the surety is not sound if due notice was not given to him of the
application for damages. Moreover, the *****judgment against the surety cannot exceed the amount
of its counter-bond of Php 1 million.
587
So you won’t be accused, it’s better to use the term “bond” when the money is deposited by the
attaching party to the court to answer for damages that may be incurred by the property owner by
b. To quash588 the attachment on the ground that it was irregularly or

improvidently issued, as provided for in Section 13 of the same rule (Torres, et
al. v. Satsatin, G.R. No. 166759, November 25, 2009).
*These grounds for the dissolution of an attachment are fixed in Rule 57 of
the Rules of Court and the power of the Court to dissolve an attachment is
circumscribed by the grounds specified therein (Vicente B. Chuidian v.
Sandiganbayan, G.R. No. 139941, January 19, 2001).
*****NB: A discharge of attachment must be made only after hearing.589
An ex parte discharge or suspension of the attachment is a disfavor to the orderly
administration of justice and nullifies the underlying role and purpose of
preliminary attachment in preserving the rights of parties as an ancillary remedy
(Peroxide Philippines Corp., v. CA, et al., G.R. No. 92813, July 21, 1991).590
4. Effects if the judgment was rendered in favor of the party against whom
attachment was issued: The order of attachment will be discharged and all the
proceeds of sales and money collected or received by the sheriff, under the
order of attachment, and all property attached remaining in any such officer’s
virtue of the attachment; now, if the property owner files a bond to prevent the attachment, it is called
a “counter-bond”.
588
Discharge of Order of Attachment that has already been ISSUED: The party whose property
has been ordered attached may file a MOTION TO QUASH the ORDER by filing a motion with the
court in which the action is pending, before or after levy or even after the release of the attached
property, for an order to set aside or discharge the attachment on the ground
a. that the same was IMPROPERLY OR IRREGULARLY ISSUED OR ENFORCED,
or
b. that the bond is INSUFFICIENT.
*If the attachment is excessive, the discharge shall be limited to the excess.
If the motion be made on affidavits on the part of the movant but not otherwise, the
attaching party may oppose the motion by counter-affidavits or other evidence in addition to
that on which the attachment was made. After due notice and hearing, the court shall order the setting
aside or the corresponding discharge of the attachment if it appears that it was improperly or
irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and
the defect is not cured forthwith (Sec. 13, Rule 57).
589
COUNTER-BONDS are replacements of the property formerly attached, and just as the latter,
may be levied upon after final judgment (Security Pacific Assurance Corporation v. Tria-Infante, G.R.
No. 144740, August 31, 2005). ******The mere posting of the counter-bond does not
automatically discharge the writ of attachment. It is only after the hearing and after judge has
ordered the discharge of attachment that the same is properly discharged (Security Pacific
Assurance Corporation v. Tria-Infante, G.R. No. 144740, August 31, 2005).
590
Discharge of attachment already ENFORCED: The party whose property has been attached may
file a motion to discharge the attachment wholly or in part on the security given. This motion shall
be with notice and hearing. After notice and hearing, the court shall discharge the attachment if the
movant makes a cash deposit or files a counter-bond executed to the attaching party with the clerk
of court where the application is made in an amount equal to that fixed by the court in the order of
attachment, exclusive of costs (Sec. 12, Rule 57).
*Should the counter-bond for any reason be found to be or become insufficient, and the party
furnishing the same fail to file an additional counter-bond, the attaching party may apply for a new
order of attachment.
hands, shall be delivered to the party against whom attachment was issued (Sec.
19, Rule 57); The whole sum deposited must be refunded to him or his assignee if
the party against whom attachment had been issued has deposited money instead
of giving counter-bond (Sec. 18, Rule 57).
6. Duty of the surety or sureties on counter-bond when the judgment becomes
executory: When the judgment has become executory, the surety or sureties on
any counter-bond591 given to secure the payment of the judgment shall
become charged on such counter-bond and bound to pay the judgment
obligee upon demand the amount due under the judgment, which amount may
be recovered from such surety or sureties after notice and summary hearing in
the same action (Sec. 17, Rule 57).592
591
[] Q: After his properties were attached, defendant Porfirio filed a sufficient counter-bond. The
trial court discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice due to the
unwarranted attachment. In the end, the trial court rendered a judgment in Porfirio's favor by
ordering the plaintiff to pay damages because the latter was not entitled to the attachment. Porfirio
moved to charge the plaintiff's attachment bond. The plaintiff and his sureties opposed the motion,
claiming that the filing of the counter-bond had relieved the plaintiff's attachment bond from all
liability for damages. Should Porifio’s motion be granted? A: Yes, Porfirio’s motion to charge
plaintiff’s attachment bond is proper and can be granted. *****It is not correct to contend that
Porfirio’s filing of a counter-bond constitutes a waiver of his right to proceed against the
attachment bond for the damages he suffered from the unwarranted attachment. It is a
CONDITION INTER ALIA of the applicant’s attachment bond that he will pay all the costs
which may be adjudged to the adverse party and all damages which the latter may sustain by reason of
the attachment, if the court shall finally adjudge that the applicant was not entitled thereto (DM
Wenceslao and Associates, Inc. v. Readycon Trading and Construction Corp., G.R. No. 156104, June
29, 2004).
592
Q: C, with D as bondsman, secured the attachment of the properties of defendant, X, who by filing
a counterbond, had the attachment dissolved. Defendant X after judgment was rendered in his favor
now holds D liable on his bond for the damages he (X) suffered for the unwarranted suit and the
wrongful and malicious attachment. D moves to dismiss the damage suit on the ground that the
dissolution of the attachment rendered the attachment bond void and ineffective under Sec. 12 of Rule
57, which provides that upon the filing of the counterbond, the attachment is discharged or dissolved.
Decide the case with reasons. Answer: If the claim for damages was made in the same action before
the judgment became final and executory, I would deny the motion to dismiss the claim for damages,
*****because the dissolution of the attachment by the filing of a counterbond does not
invalidate the attachment bond, which remains liable for damages suffered by reason of the
wrongful attachment. (Calderon vs. IAC, Nov. 11, 1987; Del Rosario vs. Nava, 95 Phil.
637).However, if the claim for damages was made in a separate action (which the question seems to
imply because of the words “damage suit”, I would grant the motion to dismiss, because such a claim
can only be made in the same action. (Sec. 20 of Rule 57; Pioneer Insurance & Surety Co, vs.
Hontanosas, 78 SCRA 447).
[]Who may issue an order of attachment and what are the contents of such an order?(1988 Bar
Question). An order of attachment may be granted by the judge of any court in which the action is
pending, or by a Justice of the Court of Appeals or the Supreme Court, and must require the sheriff
or other proper officer of the province to attach all the property of the party against whom it is
issued within the province not exempt from execution, or so much thereof as may be sufficient
to satisfy the applicant’s demand, the amount of which must be stated in the order, unless such party
makes deposit or gives bond as hereinafter provided in an amount sufficient to satisfy such demand,
besides costs, or in an amount equal to the value of the property which is about to be attached.
7. Award of damages: ******Damages may be awarded on account of improper,

irregular or excessive attachment.593 Application for damages—The application
for damages must be filed:
a. Before the trial;
b. Before appeal is perfected; or
c. Before the judgment becomes executory.
**There must be notice to the attaching party and his surety of sureties (Sec.
20, Rule 57; Riano, 2012).
8. When property is wrongfully attached: Where there is wrongful attachment,
the attachment **defendant may recover actual damages even without proof
that the attachment plaintiff acted in bad faith in obtaining the attachment.
*****However, if it is alleged and established that the attachment was not
merely wrongful but also malicious, the attachment defendant may recover
**moral damages and exemplary damages as well (Spouses Yu v. Ngo Yet Te,
G.R. No. 155868, February 6, 2007).594
g) Satisfaction of judgment out of property attached

1. If judgment is in favor of the attaching party and execution has issued thereon,
the sheriff may cause the judgment to be satisfied out of the property
attached, if it be sufficient for that purpose, in the following manners:
a. Payment to judgment creditor of all sales of perishable or other property;
b. If any balance remains, selling property as may be necessary to satisfy the
judgment;
c. Collecting from all persons having possession of credits belonging to the
judgment debtor and paying the proceeds to judgment creditor (Sec. 15, Rule 57);
Ordinary execution (Sec. 16, Rule 57).
**If it remains unsatisfied, recovery may be had on the counter-bond upon
demand and notice and hearing to surety (Sec. 17, Rule 57).
2. When the property attached is not sufficient to satisfy the judgment: Any
balance shall remain due; the sheriff must proceed to collect such balance as
upon ordinary execution.
3. When there is excess after applying the proceeds thereof: Upon reasonable
Several orders may be issued at the same time to the sheriffs or other proper offices of different
provinces (Sec. 2 of Rule 57)
593
Bar 1999: May damages be claimed by a party prejudiced by a wrongful attachment even if the
judgment is adverse to him? Explain. (2%) Yes, damages may be claimed by a party prejudiced by a
wrongful attachment even if the judgment is adverse to him. This is authorized by the Rules. A claim
for damages may be made On account of improper, irregular or excessive attachment, which
shall be heard with notice to the adverse party and his surety or sureties. (Sec. 20, Rule 57, 1997
Rules of Civil Procedure; Javellana D. O. Plaza Enterprises Inc., 32 SCRA 281.)
594
*****Damages may be claimed even by the losing party where the attachment caused him
damage where the attachment was improper, irregular or excessive. An improper, irregular or
excessive attachment is not validated by the fact that the attaching party prevailed in the main
action (1999 Bar Question).
demand, must return to the judgment obligor the attached property remaining
in his hands, and any proceeds of the sale of the property attached not applied to
the judgment (Sec. 16, Rule 57).
4. When the party against whom attachment had been issued deposited money
instead of giving counter-bond: it shall be applied under the direction of the
court to the satisfaction of any judgment rendered in favor of the attaching party,
and after satisfying the judgment, the balance shall be refunded to the
depositor or his assignee (Sec. 18, Rule 57).
———————————————————————————————
3.18.4. Preliminary injunction595 [Rule 58]
a) Definitions and differences: preliminary injunction and temporary restraining order; status quo
ante order 485
b) Requisites 485
When injunction may or may not be issued 487
3. Actions where preliminary injunction will not lie**** 489
c) Kinds of injunction 491
d) When writ may be issued 493
e) Grounds for issuance of preliminary injunction 495
f) Grounds for objection to, or for the dissolution of injunction or restraining order 495
g) PMI vs. Temporary Restraining Order (TRO)** 496
h) In relation to R.A. No. 8975, ban on issuance of TRO or writ of injunction in cases involving
government infrastructure projects 496
i) Rule on prior or contemporaneous service of summons in relation to attachment 500
———————————————————————————————
a) Definitions and differences: preliminary injunction and temporary

restraining order; status quo ante order
1. Preliminary injunction: an order granted at any stage of an action or proceeding
PRIOR TO THE JUDGMENT OR FINAL ORDER, requiring a party or a court,
agency or a person****
a. to REFRAIN from a PARTICULAR act or acts (PRELIMINARY
PROHIBITORY INJUNCTION) or
b. to REQUIRE the performance of a PARTICULAR act or acts
(PRELIMINARY MANDATORY INJUNCTION) (Sec. 1, Rule 58).
2. Nature of preliminary injunction: an ANCILLARY OR PREVENTIVE
remedy where a court requires a person, a party or even a court or tribunal either
to REFRAIN from (prohibitory) or to PERFORM (mandatory) particular acts
during the PENDENCY of an action. It is merely a temporary remedy subject
to the final disposition of principal action (Dungog v. CA, G.R. No. 139767,
595
Q: Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the
Philippines from entering into a peace agreement with the National Democratic Front? (2003 Bar
No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the President of
the Philippines from entering into a peace agreement with the National Democratic Front, which is a
purely political question. (Madarang v. Santamaria, 37 Phil. 304 [1917]). The President of the
Philippines is immune from suit.
August 5, 2003).596
3. COMPARED to MANDATORY INJUNCTION: *****The ACTION FOR
INJUNCTION is distinct from the ANCILLARY REMEDY OF
PRELIMINARY INJUNCTION which cannot exist except only as part or
an incident of an independent action or proceeding. As a matter of course, in an
action for injunction, the auxiliary remedy of preliminary injunction, whether prohibitory or
mandatory, may issue. Under the present state of the law, the main action of
injunction seeks a judgment embodying a final injunction which is distinct
from, and should not be confused with the provisional remedy of preliminary injunction, the sole
object of which is to preserve the status quo until the merits can be heard
(Urbanes v. CA, G.R. No. 117964, March 28, 2001).
a. GR: Inasmuch as a mandatory injunction tends to do more than to
maintain the status quo, it is generally improper to issue such an injunction
prior to the final hearing (Manila Electric Railroad and Light Co. vs. Del
Rosario, 22 Phil. 433).
b. XPN: It may, however, issue
i. in cases of extreme urgency;
ii. where the right is very clear;
iii. where considerations of relative inconvenience bear strongly
in complainant's favor;
iv. where there is a willful and unlawful invasion of plaintiff's right
against his protest and remonstrance, the injury being a continuing one; and
v. where the effect of the mandatory injunction is rather to
reestablish and maintain a preexisting continuing relation between the
parties, recently
4. Purpose of preliminary injunction: to prevent threatened or continuous
irremediable injury to some of the parties before their claims can be thoroughly
studied and adjudicated (Medina v. Greenfield Development Corporation, G.R.
No. 140228, November 19, 2004).
a. ******Its sole aim is to PRESERVE THE STATUS QUO until the
merits of the case can be heard fully (Cortez-Estrada v. Samut, G.R. No. 154407,
February 14, 2005). IOW, The sole object of a preliminary injunction, whether
prohibitory or mandatory, is to PRESERVE THE STATUS QUO until the
merits of the case can be heard.
b. *****LAPUS: The status quo is the last actual peaceable uncontested
596
As an ancillary and preventive remedy, a writ of preliminary injunction may be resorted to by a party
to protect or preserve his rights during the pendency of the principal action, and for no other
purpose. Such relief will accordingly protect the ability of the court to render a meaningful
decision; it will further serve to guard against a change of circumstances that will hamper or prevent
the granting of proper relief after a trial on the merits. *******Verily, its essential function is to
preserve the status quo between the parties until the merits of the case can be heard. (BPI v.
Hontanosas, G.R. No. 157163, 25 June 2014, J. Bersamin, citing Saulog v. Court of Appeals [262
SCRA 51, 1996])
status which preceded the controversy (Rodulfa vs. Alfonso). It is the situation
existing at the time of the filing of the case (Riano, 2009; Preysler Jr. v. CA,
G.R. No. 158141, July 11, 2006).
5. It may only be resorted to by a litigant **for the preservation or protection of
his rights or interests and for NO OTHER PURPOSE during the PENDENCY of
the principal action (Calo vs. Roldan, 76 Phil. 445).
*****It should only be granted if the party asking for it is clearly entitled
thereto (Climaco vs. Macaraeg, 4 SCRA 930; Subido vs. Gopengco, 27 SCRA 455;
Police Commission vs. Bello, 37 SCRA 230).
and arbitrarily interrupted by the defendant, than to establish a new relation.
(Commissioner of Customs vs. Cloribel, et al., 19 SCRA 235.)
6. Relate injunction with the Doctrine of Judicial Stability: details supra.
a. GR: No court has the power to interfere by injunction with the
judgments or decrees of a court of concurrent or coordinate jurisdiction.
b. XPN: if there is a third-party claim (TERCERIA)
7. Quantum of evidence required in a preliminary injunction: *****Mere
PRIMA FACIE evidence is needed to establish the applicant’s rights or interests
in the subject matter of the main action because the applicant is required to
show only that he has an ostensible right to the final relief prayed for in his
complaint (Republic v. Evangelista, G.R. No. 156015, August 11, 2005).
*Findings of the trial court granting or denying a petition for a writ of preliminary
injunction based on the evidence on record are merely provisional until after the
trial on the merits of the case shall have been concluded (Sps. Nisce v. Equitable-
PCI Bank, G.R. No. 167434, February 19, 2007).
8. Who may grant preliminary injunction?
a. Supreme Court in its original and appellate jurisdiction;
b. Court of Appeals; Sandiganbayan; Court of Tax Appeals
b. Trial Court in cases pending before it; (Sec. 2, Rule 58).
b) Requisites597
1. *******Requisites of preliminary injunction whether mandatory or
prohibitory injunction
a. The applicant must have a clear and unmistakable right, that is a
597
Q: What are the requisites for the issuance of
(a) a writ of preliminary injunction: The requisites for the issuance of a writ of preliminary
injunction are: (1) a right in esse or a clear and unmistakable right to be protected; (2) a violation
of that right; (3) that there is an urgent and permanent act and urgent necessity for the writ to
prevent serious damage (Tayag v. Lacson, 426 SCRA 282 [20041).
(b) a final writ of injunction? 2.5% (2006 Bar Question) *****A final writ of injunction may be
granted if after trial of the action, it appears that the applicant is entitled to have the act or acts
complained of permanently enjoined (Sec. 9, Rule 58 of the 1997 Revised Rules on Civil Procedure)
RIGHT IN ESSE;598
b. There is a material and substantial INVASION of such right;
c. There is an URGENT need for the writ to PREVENT
IRREPARABLE INJURY to the applicant;599 and
d. No other ORDINARY, SPEEDY, AND ADEQUATE REMEDY exists to
prevent the infliction of irreparable injury (Marquez v. Sanchez, 515 SCRA 577).
2. Compare: Requisites of mandatory injunction:******
a. Material and substantial INVASION of RIGHT;
b. CLEAR and unmistakable RIGHT of complainant;
c. Urgent and paramount NECESSITY for the writ to PREVENT
SERIOUS DAMAGES (Bautista v. Barcelona, G.R. No. 11885, March 29, 1957);
d. The EFFECT would not be to create a NEW RELATION between the
parties (Alvaro v. Zapata, G.R. No. L-56025, November 25, 1982; Regalado,
2008).
3. Procedural requisites of writ of preliminary injunction or temporary restraining
order:
a. Verified application stating the grounds for its issuance (Sec. 4, Rule 58);
b. Applicant must establish that he has a right to relief, a right in esse or a
right to be protected and the act against which the injunction is directed is
violative of such right;
c. Applicant must establish that there is a need to restrain the commission
or continuance of the acts complained of and if not enjoined would work
injustice to the applicant;
d. Applicant must post a bond, unless exempted by the court.600 This bond is
598
BPI v. HONTANOSAS, 2014: Spouses Silverio et al filed a complaint against Bank of the
Philippine Islands (BPI) for the declaration of nullity of the promissory notes, real estate and
chattel mortgages and continuing surety agreement the parties had executed. They further sought
damages and applied for a temporary restraining order (TRO) or writ of preliminary injunction
to prevent the petitioner from foreclosing on the mortgages against their properties. *******The
RTC granted the application for preliminary injunction: is it proper? NO. They had admittedly
constituted the real estate and chattel mortgages to secure the performance of their loan
obligation to the petitioner, and, as such, they were fully aware of the consequences on their
rights in the properties given as collaterals should the loan secured be unpaid. The foreclosure of the
mortgages would be the remedy provided by law for the mortgagee to exact payment.
*******Injunction should not issue except upon a clear showing that the applicant has a right in
esse to be protected, and that the acts sought to be enjoined are violative of such right. A preliminary
injunction should not determine the merits of a case, or decide controverted facts, for, being a
preventive remedy, it only seeks to prevent threatened wrong, further injury, and irreparable
harm or injustice until the rights of the parties can be settled.
599
The plaintiff praying for the writ must further establish that he has a present and unmistakable
right to be protected and there is a special and paramount necessity for the writ to PREVENT
SERIOUS DAMAGE (Riano, 2012).
600
[] Bar 2006: May the RTC issue an injunction without the posting of a bond? **YES, if the
injunction issued is a final injunction. *****Generally, however, a preliminary injunction may not be
executed in favor of the person enjoined to answer for all damages which the latter
may sustain by reason of injunction or restraining order if the court should finally
decide that the applicant was not entitled to the writ or order;
4. On service of summons:
a. GR: *****CONTEMPORANEOUS SERVICE of summons, i.e, The
enforcement of the writ of preliminary injunction must be preceded by or
simultaneously accompanied by service of summons, copy of complaint,
application and affidavits for the preliminary injunction and the bond upon the
adverse party.
b. ******XPNs: when the requirement of prior or contemporaneous service
of summon shall not apply (Sec. 4(c), Rule 58)601
i. Summons could not be served personally or by substituted service
despite diligent efforts;
ii. Adverse party is a resident but is temporarily absent from the
Philippines;
iii. Adverse party is a non-resident;
When injunction may or may not be issued

1. Instances when a writ of preliminary injunction may be issued
a. In petitions for relief from judgment entered through FAME;
b. In petitions for certiorari, prohibition, and mandamus;
c, In actions for annulment of judgments obtained through fraud;
d. In actions for annulment of judgment which are not patent nullity (i.e.
issued without the posting of a bond, unless exempted by the trial court or otherwise provided for by
law.
601
[] Q: S.P. Corporation filed a complaint for Recovery of Property with application for temporary
restraining order and/or preliminary injunction against the heirs of Mr. B. The case was then raffled to
Branch 253 of RTC of Las Piñas. Mr. G, one of the heirs of Mr. B, filed an Omnibus Motion praying
for another raffle of the case be held because they were not able to receive any notice of raffle to
which S.P. Corporation didn't oppose. S.P. Corporation then filed a Motion for Service of Summons
by Publication on all the heirs of Mr. B except Mr. G because the addresses could not be
ascertained despite diligent inquiry. On the day of the raffle date requested by Mr. G, both
counsels where present. However, the counsel of Mr. G opposed the said raffle for the reason that the
other defendants were not duly notified. When the case reached the Supreme Court, Mr. G contends
that under §4(c), Rule 58, a case may be raffled only after notice to and in the presence of the
adverse party. These requisites according to him are mandatory. Furthermore, he maintains that the
latter part of the rule, which allows service of summons to be dispensed with in case the adverse party
cannot be located despite diligent efforts, should not be isolated from other related provisions. Decide
the case: Mr. G's argument is incorrect. Under par. 2 § 4 Rule 58, **the required prior or
contemporaneous service of summons may be dispensed with in the following instances: see (i
to iii, supra). *****In such event, the NOTICE of raffle and the PRESENCE of the adverse party
must ALSO BE DISPENSED with. The requirement of notice of the raffle to the party whose
whereabouts are unknown does not apply because the case will have to be raffled first before the
court can act on the motion for leave to serve summons by application (isn’t this publication?) (Gonzalo R. Gonzales
v. State Properties Corporation, G.R. No. 140765, January 25, 2001).
want of jurisdiction, lack of due process of law) (Banco Espanol v. Palanca, 37

Phil. 921);
e. To restrain continued breach of valid negative obligation;
f. To enjoin repeated trespass on land;
g. To restrain city from proceeding with abatement of nuisance per accidens
before it has been judicially declared as such;
h. To restrain voting of disputed shares of stocks;
i. To restrain sheriff from selling property on execution not belonging to
judgment debtor.
2. ******Issuance of writ of injunction to enjoin criminal prosecution602
a. GR: Public interest requires that criminal acts be immediately
investigated and prosecuted for the protection of society.
b. XPNs:603
i. To afford adequate protection to the constitutional rights of the
accused (Hernandez v. Albano, et al., G.R. No. L-19272, January 25, 1967);
ii. When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions (Dimayuga, et al. v. Fernandez, 43
Phil. 304; Hernandez v. Albano, supra; Fortun v. Labang, et al., G.R. No. L-
38383, May 27, 1981);
iii. When there is a pre-judicial question which is subjudice (De Leon
v. Mabanag, 70 Phil. 202);
iv. When the acts of the officer are without or in excess of
602
Will injunction lie to restrain the commencement of a criminal action? Explain. (2%) (1999 Bar
As a general rule, injunction will not lie to restrain a criminal prosecution except:
1. To afford adequate protection to the constitutional rights of the accused;
2. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions;
3. When double jeopardy is clearly apparent;
4. Where the charges are manifestly false and motivated by the lust for vengeance;
5. Where there is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied. (See cases cited in Roberts, Jr., vs. Court of Appeals, 254 SCRA 307
[1996] and Brocka v. Enrile, 192 SCRA 183 [1990].)
603
As a general rule, the courts will not issue writs of prohibition or injunction – whether
preliminary or final – in order to enjoin or restrain any criminal prosecution. But there are
extreme cases in which exceptions to the general rule have been recognized, including: (1) when the
injunction is necessary to afford adequate protection to the constitutional rights of the accused; (2)
when it is necessary for the orderly administration of justice or to avoid oppression or multiplicity
of actions; (3) when there is a prejudicial question that is sub judice; (4) when the acts of the officer
are without or in excess of authority; (5) when the prosecution is under an invalid law,
ordinance or regulation; (6) when double jeopardy is clearly apparent; (7) when the court has no
jurisdiction over the offense; (8) when it is a case of persecution rather than prosecution; (9) when
the charges are manifestly false and motivated by the lust for vengeance; and (10) when there is
clearly no prima facie case against the accused and a motion to quash on that ground has been
denied. NB: *******the the issuance by the RTC of the writ of preliminary injunction to enjoin
the petitioner from instituting criminal complaints for violation of BP No. 22 against the
respondents was unwarranted. BPI v. HONTANOSAS, 2014:
authority (Planas v. Gil, 67 Phil. 62);

v. Where the prosecution is under an invalid law, ordinance or
regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng v. Trinidad, 47 Phil. 385,
389);
vi. When double jeopardy is clearly apparent (Sangalang v. People
and Avendia, 109 Phil. 1140);
vii. Where the court has no jurisdiction over the offense (Lopez v.
City Judge, G.R. No. L-25795, October 29, 1966);
viii. Where there is a case of persecution rather than prosecution
(Rustia v. Ocampo, CA-G.R. No. 4760, March 25, 1960);
ix. Where the charges are manifestly false and motivated by the lust
for vengeance (Recto v. Castelo, 18 L.J. [1953], cited in Rañoa v. Alvendia, CA-
G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al. v. City Fiscal, G.R. No.
L-60033, April 4, 1984, 128 SCRA 577);
x. When there is clearly no prima facie case against the accused and
a motion to quash on that ground has been denied (Salonga v. Paño, et al., G.R.
No. L-59524, February 18, 1985);
xi. Preliminary injunction has been issued by the SC to prevent the
threatened unlawful arrest of petitioners (Rodriguez v. Castelo, G.R. No. L-
6374, August 1, 1953, People of the Philippines v. Grey, G.R. No. 180109, July 26,
2010).
3. Actions where preliminary injunction will not lie****
a. GR: Against Department of Public Works and Highways to stop
government infrastructure604 projects (Secs. 3 & 4, RA 8975; PD 1818);
**XPNs:
i. Extreme urgency;
ii. Matter involves a constitutional issue;
iii. Grave injustice and irreparable injury will arise;
iv. Supreme Court may issue the writ of preliminary injunction:
******Only the SC605 may issue injunction against the government, officials or
any person or entity whether public or private acting under the government
direction, to restrain, prohibit, or compel acts pursuant to the implementation
and completion of infrastructure projects (Sec 3, RA 8975).
604
Preliminary Prohibitive Injunction will not lie: (2012 BAR)
a. toenjoinrepeatedtrespassonland.
b. inpetitionsforcertiorariandmandamus.
c. to restrain implementation of national government infrastructure project.
d. torestrainvotingofdisputedsharesofstock.
605
The Court of Appeals cannot issue a temporary restraining order in the following cases except:
(2012 BAR)
a. bidding and awarding of a project of the national government.
b. against any freeze order issued by the AMLC under the antimoneylaundering law.
c. against infrastructure projects like the SLEX extension.
d. against the DAR in the implementation of the CARL Law.
*see infra for more details under RA 8975 (gov’t projects).

b. Act/s perpetrated outside the inferior courts’ territorial jurisdiction;
c. **Against judgments of coordinate courts and quasi-judicial bodies of
equal rank; NB: QJA are of equal rank as RTC, hence, their decisions are
appealable to the CA under Rule 43.
d. Issuance will effectively dispose of the main case without trial and/or
due process (Boncodin v. Nat’l Power Corporation Employees Consolidated
Union, G.R. No. 162716, September 27, 2006);
e. **Labor disputes;
f. In issuance of licenses, concessions as to disposition, exploitation,
utilization, exploration and/or development of natural resources (Sec. 1, P.D. 605);
g. **Implementation of Comprehensive Agrarian Reform Program,
collection of taxes, criminal prosecutions;
h. GR: Mandatory foreclosure of a mortgage by a government financial
institution (Sec. 2, P.D. 385);
**XPN: After hearing, it is established that 20% of outstanding
arrearages is paid after the filing of the foreclosure proceedings.
i. GR: Act/s sought to be enjoined already consummated;
**XPN: Acts which are continuing in nature and were in
derogation of plaintiff’s rights at the outset, preliminary mandatory injunction
may be availed of to restore the parties to the status quo (Dayrit v. De Los Santos,
18 Phil. 275).
j. GR: To transfer the property in litigation from the possession of one
party to another where the legal title is in dispute and the party having
possession asserts ownership thereto (Almeida v. CA and Sy, G.R. No. 159124,
January 17, 2005);606
*****XPN: Forcible entry and unlawful detainer cases: preliminary
mandatory injunction may be issued (Sec. 15, Rule 70).
k. Generally, injunction will not be granted to take property out of the
possession of one party and place it in another whose title not clearly
established;
l. **When ACTION FOR DAMAGES would ADEQUATELY COMPENSATE
injuries caused (Golding v. Balatbat, 36 Phil. 941);
606
Q: ABC Cattle Corporation is the holder of a pasture lease agreement since 1990 covering 1.000
hectares of pasture land surrounded with fences. In 1992. D was issued a pasture lease agreement
covering 930 hectares of land adjacent to ABC’s. A relocation survey showed that the boundaries of
D’s land extended 580 hectares into ABC’s pasture land. Thereupon, D removed ABC’s fence and
started to set up his own boundary fence 580 hectares into ABC’s pasture area. As ABC persistently
blocked D’s ad vances into its property, D filed a complaint with preliminary injunction to enjoin
ABC from restricting him in the exercise of his lease rights. If you were the judge, would you issue a
preliminary injunction? Explain. (1996 Bar Question) Answer:
No, because a preliminary injunction may not be issued to take property out of the
possession and control of one party and place it in the control of another whose right has not
been clearly established.
m. To prevent directors from discharging their offices and restoring

former directors;
n. To restrain criminal prosecution where the Ombudsman had authorized the
Special prosecutor to conduct a preliminary investigation or to file an injunction;
o. Generally, **injunction does not lie to restrain the enforcement of a
law alleged to be unconstitutional except if it will result in injury to rights in private
property (J.M Tuazon v. Co. et al., G.R. No. L-18128, December 26, 1961);
p. GR: Restrain collection of taxes (Valley Trading v. CFI of Isabela, G.R.
No. L-49529, March 31, 1989)
*XPN: There are special circumstances that bear the existence of
IRREPARABLE INJURY (Churchill & Tait v. Ratterty, G.R. No. L-10572,
December 21, 1915).
q. **When the monetary board subjects a bank to undergo conservatorship
or receivership. Remedy? Rule 65 against the MB.
r. *****Purely political questions.607
4. ******Instances when mandatory injunction does not lie:
a. To compel cohabitation (Arroyo v. Vasquez, G.R. No. L-17014, August
11, 1921);
b. Cancellation of attachment (Levy Hermanos v. Lacson, G.R. No. L-
47506, December 14, 1940);
c. Release imported goods pending hearing before the Commissioner of
Customs (Commissioner of Customs v. Cloribel, G.R. No. L-19796, January 31,
1967);
d. To take property out of the possession or control of one party and place
it into that of another whose title has not clearly been established (Pio v. Marcos,
G.R. No. L-27980, April 30, 1974).
c) Kinds of injunction
1. PRELIMINARY Injunction vs. FINAL Injunction
Preliminary Injunction (Sec. 1, Rule 58) Final Injunction (Sec. 9, Rule 58)
An order granted at any stage of the Is one issued in the judgment in the case permanently
action prior to the judgment or final restraining the defendant or making the preliminary
order therein. injunction permanent.
607
Q: Can a suit for injunction be aptly filed with the Supreme Court to stop the President of the
Philippines from entering into a peace agreement with the National Democratic Front? (2003 Bar
*****No, a suit for injunction cannot aptly be filed with the Supreme Court to stop the
President of the Philippines from entering into a peace agreement with the National Democratic Front,
which is a purely political question. (Madarang v. Santamaria, 37 Phil. 304 [1917]). The President of
the Philippines is immune from suit.
2. Preliminary Injunction vs.608 Main Action for Injunction

Preliminary Injunction (Ancillary Remedy) Main Action for Injunction
Provisional remedy; not a cause of action in itself but Independent/Primary Action

merely an adjunct to a main suit
Seeks to preserve the status quo until the merits Perpetually restraining or commanding the
can be heard performance of an act after trial
3. Kinds of Preliminary Injunction

Preliminary Prohibitory Injunction Preliminary Mandatory Injunction
Requires a person to refrain from a Requires a person to perform a particular act

particular act
The act has not yet been performed The act has already been performed and this act
has violated the rights of another (Riano, 2012)
4. Prohibitory Injunction v. Prohibition

Prohibitory Injunction Prohibition
Provisional remedy, Rule 58 Special Civil Action, Rule 65
Directed against a party litigant in the Directed against a court, tribunal or person
action exercising judicial powers
It does not involve the jurisdiction of the Ground: without or in excess of jurisdiction or
court GADALEJ.
5. Mandatory injunction v. Mandamus

Mandatory Injunction Mandamus
Provisional remedy, Rule 58 Special Civil Action, Rule 65

Directed to a party litigant to Seeking a judgment commanding a tribunal, corporation,
perform an act to restore the board, officer or person to perform a ministerial duty
LAPUS preceding the controversy. required to be performed by law (Sec. 3, Rule 65; Riano,
2012).
6. Injunction against acts already consummated

a. GR: No, because injunction contemplates acts being committed or
about to be committed (Romulo v. Yñiguez, G.R. No. 71908, February 4, 1986).
b. XPN: If such acts complained of are **CONTINUING IN NATURE
and were in derogation of plaintiff’s rights at the outset, preliminary mandatory
608
Q: Distinguish between injunction as an ancillary remedy and injunction as a main action. 2.5%
*****Injunction as an ancillary remedy presupposes the existence of a principal or a main
action (Vallangca v. Court of Appeals, 1 73 SCRA 42 [1989]). Its main function is to preserve the
status quo until the merits can be heard and resolved (Urbanesv. Court of Appeals, 335 SCRA 537
120011). On the other hand, an injunction as the main action is brought specifically to obtain a
judgment perpetually restraining or commanding the performance of an act after trial (Del Mar v.
PAGCOR, 346 SCRA 485 [2000])
injunction may be availed of to restore the parties to the status quo (Regalado, 2008).
c. NB: It was settled that INJUNCTIVE RELIEFS ARE
PRESERVATIVE REMEDIES for the protection of substantive rights and
interest. Injunction is not a cause of action in itself, but merely a provisional
remedy, an adjunct to a main suit. **When the act sought to be enjoined has become fait
accompli, the prayer for provisional remedy should be denied. (Caneland Sugar
Corporation vs. Alon, G.R. No. 142896, September 12, 2007)
d) When writ may be issued
1. Issuance of writ of preliminary injunction—A preliminary injunction or TRO
may be granted only when (relate them with the requisites, supra)
a. The application in the action or proceeding is verified, and shows facts
entitling the applicant to the relief demanded;
b. Unless exempted by the court the applicant files with the court where the
action or proceeding is pending, a bond executed to the party or person enjoined,
in an amount to be fixed by the court (Sec. 4, Rule 58);
c. When an application for a writ of preliminary injunction or a TRO is
included in a complaint or any initiatory pleading, the case, if filed in a multiple-
sala court, shall be raffled only after notice to and in the presence of the adverse
party or the person to be enjoined. In any event, such notice shall be preceded, or
contemporaneously accompanied by service of summons, together with a copy of
the complaint or initiatory pleading and the applicant’s affidavit and bond, upon
the adverse party in the Philippines. However, where the summons could not be
served personally or by substituted service despite diligent efforts, or the adverse
party is a resident of the Philippines temporarily absent therefrom or is a
nonresident thereof, the requirement of prior or contemporaneous service of
summons shall not apply;
d. The application for a TRO shall thereafter be acted upon only after all
parties are heard in a summary hearing which shall be conducted within 24
hours after the sheriff’s return of service and/or the records are received by the
branch selected by raffle and to which the records shall be transmitted
immediately.
2. The notes here are incorporated, supra, to avoid redundancy.
e) Grounds for issuance of preliminary injunction

1. That the applicant is ENTITLED to the relief demanded, and the whole or
part of such relief consists in RESTRAINING the commission or continuance of
the act or acts complained of, or in REQUIRING the performance of an act or
acts either for a limited period or perpetually;
2. That the commission, continuance or non-performance of the act or acts
complained of during the litigation would PROBABLY work injustice to the
applicant; or
3. That a party, court, agency or a person is doing, threatening, or is
attempting to do, or is procuring or suffering to be done some act or acts

PROBABLY in violation of the rights of the applicant respecting the subject of
the action or proceeding, and tending to render the judgment ineffectual (Sec. 3,
Rule 58).
f) Grounds for objection to, or for the dissolution of injunction or

restraining order
1. DISSOLUTION of writ of preliminary injunction or restraining order: The
party enjoined may FILE A MOTION TO DISSOLVE the injunction or TRO
with notice and hearing of the motion upon showing by affidavits that
a. the person enjoined would suffer IRREPARABLE DAMAGE
b. while the applicant can be FULLY COMPENSATED for such damages
as he may suffer.
2. The movant must also file a BOND conditioned upon the payment of all
damages which the applicant may suffer by the dissolution of the injunction or
restraining order (Sec. 6, Rule 58).
3. GROUNDS for objections or dissolution of injunction or restraining order
a. INSUFFICIENCY of application for injunction or restraining order;
b. Issuance or continuance of injunction or restraining order causes
IRREPARABLE INJURY while applicant may be fully compensated for damages by
bond;
c. Extent of injunction or restraining order is TOO GREAT;
*Effect: modification (Sec. 6, Rule 58)
d. Insufficiency or defective BOND (Sec. 7, Rule 58).
**Filing of VERIFIED MOTION and BOND as well as HEARING are
required
g) PMI vs. Temporary Restraining Order (TRO)**

1. PRELIMINARY INJUNCTION609 vs.610 TRO
Preliminary Injunction Temporary Restraining Order
609
In Petition for Certiorari, the Court of Appeals issues a Writ of Preliminary Injunction against the
RTC restraining the latter from trying a crucial case. The Court of Appeals should therefore: (2012
BAR)
a. decidethemaincasewithin60days.
b. decidethecertioraripetitionwithin6months.
c. decide the main case or the petition within 60 days.
d. decide the main case or the petition within 6 months from issue of the preliminary
injunction.
610
*****A Writ of Preliminary Injunction cannot be granted without notice to the defendant or
adverse party, whereas a Temporary Restraining Order may be issued if it shall appear from the facts
shown by affidavits or by the verified complaint that great and irreparable injury would result to
the applicant before the matter can be heard on notice. (BP 224)
A Writ of Preliminary Injunction requires a bond to be filed by the applicant (Sec. 4 of Rule
58), whereas a Temporary Restraining Order does not.
Effective during the pendency of the action ******Duration (non-extendible) (Sec. 5, Rule 58):
unless earlier dissolved. The trial court, CA, 1. If issued by RTC/MTC: 20 days from notice to
Sandiganbayan or CTA that issued a writ of person restrained; 2. If issued by CA: 60 days from
preliminary injunction against a lower court, board, notice; 3. If issued by SC: until lifted. Prohibition
officer, or quasi-judicial agency shall decide the main against the renewal applies only if the same is sought
case or petition within 6 months from the under and by reason of the same ground for
issuance of the writ (Sec. 5, Rule 58 aa A.M. which it was originally issued (Regalado, 2008).
No. 07-7-12-SC).
Restrains or requires the performance of *****Maintain status quo ante
particular acts.
******Notice and hearing always required (Sec. GR: Notice and hearing required
5, Rule 58). XPN: To prevent urgent/irreparable injury,
******TRO may be issued by an Executive Judge or
Presiding Judge for 72 hours and a summary
hearing be subsequently conducted within such period
Can be issued to compel the performance of Cannot be issued to compel the performance of
an act an act
2. ******NO Ex parte writ of preliminary injunction:611 No preliminary

injunction shall be granted without HEARING AND PRIOR NOTICE to the
party or person sought to be enjoined. The reason is that a preliminary injunction
may cause GRAVE AND IRREPARABLE INJURY612 to the PARTY
ENJOINED.
NB: It’s GADALEJ if the trial court issues a WPI based solely on the applicant’s
evidence.613
611
May a writ of preliminary injunction be issued ex parte? Why? (2%) SUGGESTED ANSWER:
xxx No, a writ of preliminary Injunction may not be issued ex parte. As provided in the Rules, no
preliminary injunction shall be granted without hearing and prior notice to the party or person sought
to be enjoined. (Sec. 5 of Rule 58, 1997 Rules of Civil Procedure) The reason is that a preliminary
injunction may cause grave and irreparable injury to the party enjoined.
612
**If it shall appear from facts shown by affidavits or by the verified application that GREAT OR
IRREPARABLE INJURY would result to the APPLICANT before the matter can be heard on notice,
the COURT MAY ISSUE EX PARTE A TRO. If the matter is of EXTREME URGENCY and the
applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala
court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order
EFFECTIVE FOR ONLY 72 HOURS from issuance but he shall immediately comply with
the provisions as to service of summons and the documents to be served therewith.
*****Thereafter, within the aforesaid 72 hours, the judge before whom the case is pending shall CONDUCT
A SUMMARY HEARING to determine whether the temporary restraining order shall be extended until the
application for preliminary injunction can be heard. *****In no case shall the total period of effectivity of the
temporary restraining order exceed 20 days, including the original seventy-two hours provided
herein. NB: In the event that the application for preliminary injunction is denied or not resolved
within the said period, the TRO is DEEMED AUTOMATICALLY VACATED.
613
Trial Court cannot issue a writ of preliminary injunction based solely on the applicant’s
evidence. The trial court commits **grave abuse of discretion when it issues such writ prior to
the termination of the presentation of evidence by the party against whom the injunction shall be
3. *****A second application for injunction, which rests in the sound

discretion of the court, will ordinarily be denied unless it is based on facts
unknown at the time of the first application (Reyes v. Court of Appeals and Sun
Life Insurance Office, Ltd., G.R. No. 87647, May 21, 1990).
4. TRO v. Status Quo Order [Garcia v. Mojica, G.R. No. 139043, September 10, 1999]
TRO Status Quo Order
Summary hearing *****Issued motu proprio on equitable considerations.

Prevents the doing of an act More in the nature of a cease and desist order since it neither directs
the doing or undoing of acts
Requires the posting of a bond, Does not require the posting of a bond
unless exempted by court
a. Temporary Restraining Order:614 *****an INTERLOCUTORY

ORDER issued as a restraint to the defendant to PRESERVE THE STATUS
QUO on the GROUND OF IRREPARABLE INJURY and is granted to a party
UNTIL the HEARING of the application for preliminary injunction. The
grant, denial or lifting of restraining order does not in any way preempt the court’s
power to decide the issue in the main case (DFA and BSP v. Falcon and BCA
Int’l Corp., G.R. No. 176657, September 1, 2010).
b. Status Quo Order: It is resorted to when the projected proceedings in
the case makes the CONSERVATION of the status quo DESIRABLE OR
ESSENTIAL but ******the affected party NEITHER SOUGHT such relief NOR
DID THE ALLEGATIONS in his pleading sufficiently make out a case for a
TRO (Bar 2006).****
5. Duration of a TRO****
When available Executive Judge / Presiding Judge CA/CA Justice SC/SC Justice
If great or irreparable If the matter is of extreme urgency and Effective Effective

injury would result to the the applicant will suffer grave injustice for 60 days until
applicant before the matter can and irreparable injury: 1. TRO effective from further
be heard on notice, the court only for 72 hours from issuance; 2. Its service on orders
may issue ex parte a TRO, effectivity may be extended after the party
effective only for 20 days conducting a summary hearing within the sought to be
from service on the party 72 hour period until the application for enjoined
sought to be enjoined. preliminary injunction can be heard
a. *****Only the Executive Judge can issue immediately a TRO
issued. The order to show cause why the injunction should not be granted as stated in Sec. 5, Rule
58 of the Rules of Court is precisely directed to such party, not on the injunction’s applicant (Lee v. CA, G.R. No.
147191, July 27, 2006).
614
Define a temporary restraining order (TRO). 2% (2006 Bar Question) SUGGESTED ANSWER:
******A temporary restraining order is an interlocutory order issued to preserve the status quo, and
is granted to a party until the hearing of the application for preliminary injunction (Sec. 5, par. 2,
Rule 58 of the 1997 Rules of Civil Procedure).
effective for 72 hours from issuance.615 No other judge has the right or power
to issue a TRO ex parte. The JUDGE TO WHOM THE CASE IS ASSIGNED will then
conduct a SUMMARY HEARING to determine whether the TRO shall be
extended, but in NO CASE BEYOND 20 DAYS INCLUDING THE ORIGINAL
72-hour period.616
b. Period of TWENTY DAYS NON EXTENDIBLE:617 The rule against
the non-extendibility of the 20 day effectivity of a TRO is absolute if issued by
RTC.618 *****The failure of the trial court to fix the period in the TRO does not
615
Q: What is the duration of a TRO issued by the Executive Judge of a Regional Trial Court? 2%
The duration of the TRO issued by the executive judge of a Regional Trial Court is seventy-
two (72) hours from issuance, which is issued only if the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury, and the duration of the TRO issued by
him as the judge assigned to the case, may be effective for a total of twenty (20) days, including the
original period of 72 hours.
616
[] Bar 2001: An application for a writ of preliminary injunction with a prayer for a TRO is included
in a complaint and filed in a multi-sala RTC consisting of Branches 1, 2, 3, and 4. Being urgent in
nature, the Executive Judge, who was sitting in Branch 1, upon the filing of the application aforesaid,
immediately raffled the case in the presence of the judges of Branches 2, 3 and 4. The case was
raffled to Branch 4 and the judge thereof immediately issued a TRO. Is the temporary restraining
order valid? NO. It is ****only the Executive Judge who can issue immediately a TRO effective
for 72 hours from issuance. No other judge has the right or power to issue a TRO ex parte. The
JUDGE TO WHOM THE CASE IS ASSIGNED will then conduct a SUMMARY HEARING to
determine whether the TRO shall be extended, but in NO CASE BEYOND 20 DAYS
INCLUDING THE ORIGINAL 72-hour period.
617
Q: What is the life span of a temporary restraining order issued by a trial court? May this life span be
extended? Explain fully. (1989 Bar Question) Answer:
The lifespan of a restraining order is twenty days. This life span may not be extended. A
preliminary injunction may no longer be granted without notice to the adverse party. However, if it
appears that great or irreparable injury would result to the applicant before his application for
preliminary injunction could be heard on notice, the judge may issue a temporary restraining order with
a limited life span of twenty days from date of issue. If no preliminary injunction is granted within
said period, the temporary restraining order would automatically expire on the 20th day. If before
the expiration of the 20-day period, the application for preliminary injunction is denied, the temporary
restraining order would also be deemed automatically deemed vacated. (Sec. 5 of Rule 5 as
amended by BP 224; Dionisio vs. CFI of South Cotabatoy 124 SCRA 222).
618
BAR 2017: Q: A temporary restraining order (TRO) was issued on September 20, 2017 by the RTC
against defendant Jeff enjoining him from entering the land of Regan, the plaintiff. On October 9,
2017, upon application of Regan, the trial court, allegedly in the interest of justice, extended the TRO
for another 20 days based on the same ground for which the TRO was issued. On October 15, 2017,
Jeff entered the land subject of the TRO. May Jeff be liable for contempt of court? Why?
SUGGESTED ANSWER: No, Jeff may not be liable for contempt. Under the Rule on Preliminary
Injunction, a TRO is effective only for a period of 20 days from service on the person sought to
be enjoined. It is deemed automatically vacated if the application for preliminary injunction is
denied or not resolved within the said period and no court shall have the authority to extend or
renew the TRO on the same ground for which it was issued. [S5 R58] Here the extension of the
TRO by the RTC was invalid since it was for the same ground for which the TRO was issued. Hence
convert it to a preliminary injunction (Bacolod City vs. Labayen, G.R. No.

157494, December 10, 2004).
c. Duty of the court within 20 day period: The court must order said
party or person to show cause why the injunction should not be granted. Also,
within the same period, the court shall determine whether or not the preliminary
injunction shall be granted and then issue the corresponding order (Australian
Professional, Inc. vs. Municipality of Padre Garcia, G.R. No. 183367, March 14,
2012).
d. A CA justice619 may issue a TRO, subject to the ratification, modification
and recall of the other members of his Division.
h) In relation to R.A. No. 8975, ban on issuance of TRO or writ of

injunction in cases involving government infrastructure projects
1. Preliminary injunction or TRO in cases involving government infrastructure
projects:
*GR: No court shall issue any TRO, preliminary injunction or preliminary
mandatory injunction against the government, or any of its subdivisions,
officials or any person or entity, whether public or private acting under the government
direction, to restrain, prohibit or compel the following acts:
a. Acquisition, clearance and development of the right-of-way and/or site or
location of any national government project;
b. Bidding or awarding of contract/project of the national government
as defined under Sec. 2 hereof;
c. Commencement prosecution, execution, implementation, operation
of any such contract or project;
d. Termination or rescission of any such contract/project; and
The undertaking or authorization of any other lawful activity necessary for such
contract/project (Sec. 3, RA 8975).
*NB: The law further provides that any TRO or preliminary injunction
issued in violation of Sec. 3 is VOID AND OF NO FORCE AND EFFECT
(Sec. 4, Ibid.).
**XPNs: The prohibition does not apply when:
i. Issued by the Supreme Court;
ii. The matter is of extreme urgency;
the TRO was deemed automatically vacated and thus Jeff may not be liable for contempt for ignoring
it. (Jurist Review Center, Inc.)
619
May a justice of a Division of the Court of Appeals issue a TRO? 2% (2006 Bar Question)
SUGGESTED ANSWER: *****Yes, a Justice of a Division of the Court of Appeals may
issue a TRO, as authorized under Rule 58 and by Section 5, Rule IV of the IRCA which additionally
requires that the action shall be submitted on the next working day to the absent members of
the division for their ratification, modification or recall (Heirs of the late Justice Jose B.L. Reyes v.
Court of Appeals, 338 SCRA 282 [2000]).
iii. Involves a constitutional issue; and

iv. Grave injustice and irreparable injury will arise unless a temporary
restraining order is issued. In this case, the applicant shall file a BOND in an amount
to fixed by court and which shall accrue in favor of the government if the court
should finally decide that the applicant was not entitled to the relief sought (Sec. 3, Ibid.).
i) Rule on prior or contemporaneous service of summons in relation to

attachment
1. Just as in levy on preliminary attachment, there must be proof of prior or
contemporaneous service of summons with a copy of the complaint or
initiatory pleading and applicant’s affidavit and bond on the adverse party
(Regalado, 2010).
2. For preliminary injunction, supra, under requisites (e).
———————————————————————————————
3.18.5. Receivership [Rule 59]
a) Cases when receiver may be appointed 502

b) Requisites****** 503
c) Requirements before issuance of an order 504
d) General powers of a receiver 504
e) Two kinds of bonds 505
f) Termination of receivership 505
———————————————————————————————
PRELIMINARIES ON RECEIVERSHIP
1. It is a provisional remedy wherein the court appoints a representative to
preserve, administer, dispose of and prevent the loss or dissipation of the
real or personal property during the pendency of an action. It may be the principal
action itself or a mere provisional remedy; it **can be availed of even after the
judgment has become final and executory as it may be applied for to aid
execution or carry judgment into effect.
*NB: Receivership, like injunction may also be a principal action as the
one referred to in Sec. 4 of Rule 39. Rule 59 is a receivership that is ancillary to a
main action (Riano, 2012).
2. Purpose of Receivership: Its object is the prevention of imminent danger to
the property. **If the action does not require such protection or preservation,
the remedy is not receivership (Evelina Chavez v. Court of Appeals, G.R. No.
174356, January 20, 2010). The receivership under rule 59 is directed to the
property which is the subject of the action and does not refer to the
receivership authorized under the banking laws and other rules or laws. Rule
59 presupposes that there is an action and that the property subject of the action
requires its preservation (Riano, 2012).
3. When to file receivership
a. At any stage of the proceedings;
b. ******Even after finality of judgment.620
620
Which of the following is in accord with the applicable rules on receivership? (2011 BAR)
(A) The court may appoint the plaintiff as receiver of the property in litigation over the defendant’s
objection.
(B) A receiver may be appointed after judgment if the judgment obligor refuses to apply his
property to satisfy the judgment.
(C) The trial court cannot appoint a receiver when the case is on appeal.
(D) The filing of bond on appointment of a receiver is mainly optional.
a) Cases when receiver may be appointed

1. A receiver is not a representative party under Rule 3 but a real party in
interest. However, he cannot file a case without the consent of the
receivership court. NB: **A party to an action may not be appointed as a
receiver unless consented to by all parties.
*The appointment of a receiver is necessary since the court is not provided
with adequate machinery and resources for dealing with the situation presented by
the appointment of a receiver and all the details connected therewith (Velasco v.
Gochuico, G.R. No. L-10173, February 1, 1916).
2. Who may appoint a receiver
a. Court where action is pending;
b. Court of Appeals; or
c. **Supreme Court or a member thereof (Sec. 1, Rule 59).
**During the pendency of an appeal, the appellate court may allow an
application for the appointment of a receiver to be **filed in and decided by
the court of origin and the receiver appointed to be subject to the control of the latter
court (Sec.1, Rule 59).
3. ******Grounds for appointment of a receiver
a. The property or fund is in danger of being lost, removed or materially
injured;
b. The mortgaged property is in danger of being wasted or dissipated or
materially injured, and that its value is probably insufficient to discharge the
mortgaged debt;621
c. There is stipulation in the contract of mortgage;
d. After judgment, to preserve the property during the pendency of an
appeal, or to dispose according to judgment;
621
[] Bar 2001: Paula filed a complaint against Jolly for the foreclosure of a mortgage of a furniture
factory with a large number of machinery and equipment. During the pendency of the foreclosure
suit, Paula learned from reliable sources that Jolly was quietly and gradually disposing of some of
his machinery and equipment to a businessman friend who was also engaged in furniture
manufacturing such that from confirmed reports Paula gathered, the machinery and equipment left
with Jolly were no longer sufficient to answer for the latter's mortgage indebtedness. In the
meantime, judgment was rendered by the court in favor of Paula but the same is not yet final.
Knowing what Jolly has been doing, if you were Paula's lawyer, what action would you take to
preserve whatever remaining machinery and equipment are left with Jolly? Why?
A: Paula’s lawyer should file a verified application for the appointment by the court of one
or more receivers. Receivership is proper in an action by the mortgagee for the foreclosure of a
mortgage when it appears that the property is in danger of being wasted or dissipated or
materially injured and that its value is probably insufficient to discharge the mortgage debt. The same
could be file even if judgment has already been rendered.
ALTERNATIVE (original names): To preserve whatever remaining machinery and equipment
are left with Jose, Joaquin's lawyer should file a verified application for the appointment by the court
of one or more receivers. The Rules provide that receivership is proper in an action by the
mortgagee for the foreclosure of a mortgage when it appears that the property is in danger of
being wasted or dissipated or materially injured and that its value is probably insufficient to
discharge the mortgage debt. (Sec. l[b] of Rule 59, 1997 Rules of Civil Procedure).
e. To aid execution when execution has been returned unsatisfied;

f. Judgment obligor refuses to apply his property in satisfaction of the
judgment; or
g. When it appears that the appointment of a receiver is the most
convenient and feasible means of preserving administering, or disposing of the
property (Sec. 1, Rule 59).
4. Instances when receivership will not lie******
a. Receivership cannot be effected on a property in custodia legis
(Lizarraga Hermanos. v. Abada, 40 Phil 124). But a receiver can be appointed
where a property in custody of an administrator or executor is in danger of imminent loss
or injury (Dolor v. Sindian, G.R. No. L-27631, April 30, 1971);
b. Where the action is merely to obtain a money judgment on unpaid
credits and not to enforce a lien upon specific property or funds in the
possession of the defendant (Bonaplata v. Ambler et al., 2 Phil 392; Regalado,
2012);
c. In actions involving possession of or title to real property, the
appointment of receiver may be made only if there is clear necessity to protect the
applicant from grave or irremediable damages.
5. Effect of a contract executed by a receiver **without court approval: Such
contract will constitute his personal undertakings and obligations (Pacific
Merchandising Corp. v. Consolacion Insurance & Surety Co., G.R. No. L-30204,
October 29, 1976).
6. Liability of a person who refuses or neglects to deliver property to the
receiver: **May be punished for contempt and shall be liable to the receiver for
the money or the value of the property and other things so refused or neglected to
be surrendered, together with all damages that may have been sustained by the
party or parties entitled thereto as a consequence of such refusal or neglect (Sec. 7, Rule
59).
b) Requisites******
1. Party applying for receivership has an existing interest in the property in
litigation;
2. Verified application filed at any stage of the proceedings even after final
judgment, prior to the satisfaction of judgment (Sec. 1, Rule 59);
3. Posting of bond (Sec. 2, Rule 59);
4. That the property or funds is in danger of being lost, wasted or dissipated
(Sec. 1, Rule 59);
5. Receiver must be sworn to perform his duties faithfully (Sec. 4, Rule 58).
c) Requirements before issuance of an order

*The applicant must file:
1. A bond executed in favor of the party against whom the application is
presented; and
2. In an amount fixed by court, to pay damages in case receivership is procured

without sufficient cause.
*NB: The court may require an additional bond for further security (Sec. 2, Rule
59).
d) General powers of a receiver

1. Bring and defend actions in his own name;
2. Take and keep possession of the property in controversy;
3. Receive rents;
4. Collect debts due to himself as receiver or to the fund, property, estate, person
or corporation of which he is a receiver;
5. Compound for and compromise debts collected;
6. Make transfers;
7. Pay outstanding debts;
8. Divide money and other property that shall remain among the persons legally
entitled to receive the same;
9. Do such acts respecting the property as the court may authorize;
10. *****Invest funds in his hands only by order of the court upon the written
consent of all the parties (Sec. 6, Rule 59).622
e) Two kinds of bonds

1. Applicant’s Bond (Sec. 2, Rule 59);
2. Receiver’s Bond – The receiver before entering upon his duties shall be
sworn to perform them faithfully and shall file a bond to the effect that he will
faithfully discharge his duties in the action and obey the orders of the court
(Sec. 4, Rule 59).
*NB: A counter-bond may be filed by the adverse party executed to the
applicant, in an amount to be fixed by the court, to the effect that such party will pay
the applicant all damages he may suffer by reason of the acts, omissions, or other
matters specified in the application as ground for such appointment in which case,
the application may be denied, or the receiver discharged, when the adverse party
files a bond (Sec. 3, Rule 59).
f) Termination of receivership
1. Grounds for the discharge of receiver
a. Posting of counter-bond by adverse party (Sec. 3, Rule 59); NB: Where
counter-bond is insufficient or defective, receiver may be re-appointed (Sec. 5, Rule
59).
622
Which of the following is NOT within the power of a judicial receiver to perform? (2011 BAR)
(A) Bring an action in his name.
(B) Compromise a claim.
(C) Divide the residual money in his hands among the persons legally entitled to the same.
(D) Invest the funds in his hands without court approval.
b. Appointment of receiver was made without sufficient cause (Sec. 3,

Rule 59);
c. Insufficient or defective applicant’s bond (Sec. 5, Rule 59);
d. Insufficient or defective receiver’s bond (Sec. 5, Rule 59);
e. Receiver no longer necessary (Sec. 8, Rule 59).
2. Termination of Receivership—Receivership may be terminated:
a. **By the court motu propio or on motion by either party;
b. Based on the following grounds:
i. Necessity for receiver no longer exists;
ii. Receiver asserts ownership over the property (Martinez v.
Graño, G.R. No. L-25437, August 14, 1926);
c. After due notice and hearing to all interested party (Sec. 8, Rule 59).
———————————————————————————————
3.18.6. Replevin [Rule 60]
a) When may writ be issued 507

b) Requisites for issuance****** 508
c) Affidavit and bond; redelivery bond 508
d) Sheriff’s duty in the implementation of the writ; when property is claimed by third party510
———————————————————————————————
PRELIMINARIES ON REPLEVIN
1. It is an action whereby the owner or person entitled to repossession of
goods or chattels may recover those goods or chattels from one who has
wrongfully distrained or taken or who wrongfully detains such goods or
chattels (Black’s 6th). ******Replevin may be a main action or a provisional
remedy. As a principal action its **ultimate goal is to recover personal
property capable of manual delivery623 wrongfully detained624 by a person.625
The main action for replevin is primarily possessory in nature and generally
determines nothing more than the right of possession (Riano, 2012).
2. Nature of an action for Replevin: The action is *****primarily
POSSESSORY in nature and generally determines nothing more than the
right of possession. Replevin is so usually described as a **mixed action, being
partly in rem and partly in personam: in rem insofar as the recovery of specific property
is concerned, and in personam as regards to damages involved. As an “action in rem”, the gist
623
Q: Mia obtained a loan to buy machineries for her garment business. She executed a chattel
mortgage over said machineries. Due to business reverses, she defaulted in the payment of her
obligation. Mario, the mortgagee, sought the delivery of the machineries so that they can be sold at
foreclosure sale but Mia refused, contending that it would result in the stoppage of her business. Mario
seeks your advice regarding his problem. What is your legal opinion on the matter? (1989 Bar
Question)
Answer: I would advise Mario either to file an action for recovery of said machineries with an
application for a writ of replevin or delivery of personal property upon the filing of a bond double the
value thereof as a preliminary step to an extrajudicial foreclosure, or to file an action of judicial
foreclosure of chattel mortgage. (Northern Motors, Inc. vs. Herrera, 49 SCRA 392; Rule 6Cf; Sec. 8 of
Rule 68). *****Inasmuch as Mia executed a chattel mortgage, over said machineries, she would be
estopped from opposing the writ of replevin on the ground that only personal property may be
subject thereof. (Makati Leasig and Finance Corp. vs. Wearever Textile Mills, Inc., 122 SCRA 296)
624
Which of the following conforms to the applicable rule on replevin? (2011 BAR)
(A) The applicant must file a bond executed to the adverse party in an amount equal to the value of the
property as determined by the court.
(B) The property has been wrongfully detained by the adverse party.
(C) The applicant has a contingent claim over the property object of the writ.
(D) The plaintiff may apply for the writ at any time before judgment.
625
What is replevin? (2%) Replevin or delivery of personal property consists in the delivery, by order
of the court, of personal property by the defendant to the plaintiff, upon the filing of a bond. (Calo
v. Roldan, 76 Phil. 445 [1946])
of the replevin action is the right of the plaintiff to obtain possession of

specific personal property by reason of his being the owner or of his having a
special interest therein (BA Finance Corporation vs. Court of Appeals, G.R. No.
102998, July 5, 1996).
[] Q: To be able to secure financial accommodations from Makati Leasing,
Wearever discounted and assigned several receivables under a Receivable
Purchase Agreement. To secure the collection of the receivables assigned, private
respondent executed a chattel mortgage over certain machineries which were
bolted to the ground. Upon default, Makati Leasing move for extrajudicial
foreclosure of the mortgage properties and filed an action for replevin which was
granted by the court. Can the machineries bolted to the ground be a subject of
replevin? A: **Machineries bolted to the ground are real properties that may
not be the subject to replevin (Makati Leasing and Finance Corporation v. Wearever
Textile Mills, Inc., G.R. No. L-58469, May 16, 1983).
a) When may writ be issued

*The writ of Replevin may only be obtained when the defendant in the action has
not yet filed his answer to the complaint where it is necessary to:
1. Protect plaintiff’s right of possession to property;
2. Prevent defendant from destroying, damaging or disposing of the property.
*NB: Under the Resolution of the Supreme Court en banc dated January 11, 1983,
a writ of replevin like the one issued in the present case **may be served
anywhere in the Philippines (Fernandez v. International Corporate Bank, now
Union Bank of the Philippines, G.R. No. 131283, October 7, 1999).
b) Requisites for issuance******

1. The application for the writ must be filed at the commencement of the action
or at anytime before the defendant answers (Sec. 1, Rule 60);
2. The application must contain an affidavit where the applicant particularly
describes the property that he is the owner of the property or that he is entitled
to the possession thereof; The affidavit must contain the following:
a. Applicant is the owner [or he has right to possession626] of the property
claimed, particular description of such entitlement to possession;
b. Property is wrongfully detained, alleging cause of detention according
to applicant’s knowledge, information and belief; NB: does not apply to a pledgee
whose possession is not wrongful.627
626
*****The applicant need not be the owner of the property. It is enough that he has a right to its
possession (Yang v. Valdez, G.R. No. 102998, July 5, 1996).
627
Q: “A” obtained a judgment for money against “B”. The sheriff enforcing the corresponding writ
went to “C” who, is the pledgee of a ring “B” had given as security for a loan and insisted on taking
possession of the ring for the purpose of eventually selling it at the execution sale to satisfy the
c. Property has not been taken for tax assessment or fine, or seized by
writ of execution, preliminary attachment, in custodia legis, if so seized, that
is exempt or should be released from custody;
d. Actual market628 value of the property (Sec. 2, Rule 60).
3. The applicant must give a bond, executed to the adverse party and double629 the
value of the property (Sec. 2, Rule 60).630
[] Q: For failure to pay four successive installments from May 15, 2002
to August 15, 2002, respondent, through counsel, sent to petitioners a demand
letter dated August 29, 2002. The demand letter was left unheeded so respondent filed on
October 4, 2002 an action for replevin and Damages before the Manila Regional Trial
Court. However, the vehicle was never recovered and delivered to respondent
despite issuance of writ of replevin. The petitioners allege that they were deprived of
use and enjoyment of the mortgaged car despite the non-recovery and non-delivery of
car to respondents and that the trial court erred in granting the alternative prayer
for sum of money which amounted to double recovery. Are the petitioners’
arguments tenable?
A: ***Since there was no seizure that transpired, respondents were not
deprived of use and enjoyment of the mortgaged vehicle, the trial court
rightfully granted the alternative prayer for sum of money which is equivalent
to the remedy of exacting fulfillment of the obligation. Certainly, there was no double
recovery or unjust enrichment to speak of (Spouses Agner v. BPI Family
Savings Bank, Inc., G.R. No. 182963, June 3, 2013).
judgment debt of “B” to “A”. Has “C” the obligation to surrender the ring to the sheriff? Explain.
No. “C” has no obligation to surrender the ring to the sheriff because “C” has the right to
retain the ring in his possession until the loan is paid. (Art, 2098 CivU Code) If the sheriff should take
possession of the ring, “C” may file a third-party claim.
628
Which of the following has NO PLACE in an application for a replevin order? A statement (2011
BAR)
(A) that the property is wrongfully detained by the adverse party.
(B) that the property has not been distrained for a tax assessment or placed under custodia legis.
(C) of the assessed value of the property.
(D) that the applicant owns or has a right to the possession of the property.
629
When is the defendant entitled to the return of the property taken under a writ of replevin? (2011
BAR)
(A) When the plaintiff’s bond is found insufficient or defective and is not replaced.
(B) When the defendant posts a redelivery bond equal to the value of the property seized.
(C) When the plaintiff takes the property and disposes of it without the sheriff’s approval.
(D) When a third party claims the property taken yet the applicant does not file a bond in favor of the
sheriff.
630
Q: A sold five thousand piculs of sugar to B. payable on demand. Upon delivery of the sugar to B,
however, the latter did not pay its purchase price. After the lapse of sometime from the date of delivery
of the sugar to B, A brought an action for the recission of the contract of sale and as incident of this
action, asked for the manual delivery (replevin) of the sugar to him. May the remedy of replevin prayed
for by A be granted? Explain. (1996 Bar Question) Answer:
Yes, because A is entitled to recover possession of the sugar upon the filing of the necessary
affidavit and bond in double the value of the property.
c) Affidavit and bond; redelivery bond

1. REDELIVERY BOND: Bond, which must be ****double the value of
property, to answer for the return of property if adjudged and pay for such sum
as he may recover from the applicant (Sec. 2, Rule 60).
2. It is required that the redelivery bond be filed within the period of 5 days
after the taking of the property (Yang v. Valdez, G.R. No. 102998, July 5, 1996).
d) Sheriff’s duty in the implementation of the writ; when property is

claimed by third party
1. Duties of the sheriff: Sheriff must serve a copy of the writ on the adverse
party, together with a copy of the application, affidavit and bond;
2. He must forthwith take the property, if it be in the possession of the adverse
party, or his agent, and retain it in his custody;
3. 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 delivered, he must cause the
building or enclosure to be broken open and take the property into his
possession;
4. 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. 4, Rule 60).
5. Delivery to applicant: The sheriff shall retain the property for 5 days. Within
such period, the adverse party may object to the sufficiency of the applicant’s
bond or surety or he may file a redelivery bond. After 5 days and the adverse party
failed to object or the redelivery bond is insufficient, the sheriff shall deliver the
property to the applicant (Sec. 5, Rule 60).
6. Return of the property to defendant
a. He seasonably posts a redelivery bond (Ibid.);
b. Plaintiff’s bond is found to be insufficient or defective and is not
replaced with proper bond;
c. Property is not delivered to the plaintiff for any reason (Sec. 6, Rule 60).
7. Remedies of a third person whose property is taken by virtue of a replevin631
631
The RTC of Malolos, Branch 1, issued a writ of execution against Rene for P20 million. The
sheriff levied on a school building that appeared to be owned by Rene. Marie, however, filed a
third party claim with the sheriff, despite which, the latter scheduled the execution sale. Marie
then filed a separate action before the RTC of Malolos, Branch 2, which issued a writ of
preliminary injunction enjoining the sheriff from taking possession and proceeding with the sale of
the levied property. Did Branch 2 correctly act in issuing the injunction? (2011 BAR)
(A) Yes, since *****the rules allow the filing of the independent suit to check the sheriff’s
wrongful act in levying on a third party’s property.
(B) Yes, since Branch 2, like Branch 1, is part of the RTC of Malolos.
(C) No, because the proper remedy is to seek relief from the same court which rendered the judgment.
a. **Third party shall file and serve affidavit upon sheriff and applicant
stating his entitlement to possession;
b. Sheriff shall return the property to third person unless applicant files a
bond (same amount as the value of the property) approved by court to indemnify
the third person;
c. Claim for damages upon said bond must be filed within 120 days from date
of filing of the bond.
8. Writ issued in favour of the Republic: When the writ of replevin is issued in
favor or 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 replevin, 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, Sec. 7)
———————————————————————————————
(D) No, since it constitutes interference with the judgment of a co-equal court with concurrent
jurisdiction.
3.18.7. Support Pendente Lite [Rule 61]

1. Note the main difference between the following:
a. support as a main action
b. support pendente lite (SPL) as a provisional remedy
****both are IMMEDIATELY EXECUTORY (even if not final),
otherwise, the party is liable for CONTEMPT.
2. NB: ******cases that are immediately executory (IRAS): injunction,
receivership, accounting and support.
3. Can this be availed of in a criminal case?632 YES. EG: father raped his child; she
asked for SPL; Why? There is RESTITUTION (i.e., there is obligation to return
what she received) if later on the father was acquitted.
———————————————————————————————
632
Modesto was accused of seduction by Virginia, a poor, unemployed young girl, who has a child by
Modesto. Virginia was in dire need of pecuniary assistance to keep her child, not to say of herself,
alive. The criminal case is still pending in court and although the civil liability aspect of the
crime has not been waived or reserved for a separate civil action, the trial for the case was foreseen
to take two long years because of the heavily clogged court calendar before the Judgment may be
rendered. Q: If you were the lawyer of Virginia, what action should you take to help Virginia in the
meantime especially with the problem of feeding the child? (5%) (2001 Bar Question)
SUGGESTED ANSWER: To help Virginia in the meantime, her lawyer should apply for
support pendente lite as provided in the Rules. In criminal actions where the civil liability includes
support for the offspring as a consequence of the crime and the civil aspect, thereof has not been
waived or reserved for a separate civil action, the accused may be ordered to provide support pendente
lite to the child bona to the offended party. (Sec. 6 of Rule 61,1997 Rules of Civil Procedure)
3.19. Special civil actions (SCA)
3.19.1. Nature of special civil actions 513

3.19.2. Ordinary civil actions versus special civil actions**** 513
3.19.3. Jurisdiction and venue****** 513
———————————————————————————————
3.19.1. Nature of special civil actions

1. Since a civil action in general is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong
(Sec. 3(a), Rule 1), a special civil action is generally brought or filed for the same
purpose.
2. Special civil actions within the jurisdiction of the inferior courts
a. Interpleader, provided the amount involved is within its jurisdiction
(Makati Development Corp. v. Tanjuatco, et al., G.R. No. L-26443, March 25,
1969);
b. Ejectment Suits (Sec. 88, R.A. 296; Rule 70);
c. Contempt (Secs. 1 and 4, Rule 71; Regalado, 2010).
3. SCA which are commenced by the filing of a PETITION:*****
a. Rule 63: Declaratory Relief and Similar Remedies
b. Rule 64: Review of JT & FO/R of the Comelec and the COA
c. Rule 65: Certiorari, Prohibition and Mandamus
d. Rule 66: Quo Warranto;
e. Rule 71: Contempt
4. The other SCA are commenced by the filing of a COMPLAINT:
a. Rule 62: Interpleader;
b. Rule 67: Expropriation;
c. Rule 68: Foreclosure of Real Estate Mortgage;
d. Rule 69: Partition;
e. Rule 70: Forcible Entry and Unlawful Detainer.
3.19.2. Ordinary civil actions versus special civil actions****

Ordinary Civil Action Special Civil Action
Cause of Action
It is based on a cause of Not all special civil actions are based on a cause of action. EG:
action (Sec. 1, Rule 2). Declaratory relief (action is brought before there is breach); Interpleader
(plaintiff has sustained no actual transgression of his rights)
Venue
Determined by either The venue of special civil actions is governed by the general rules on
the residences of the venue, except as otherwise indicated in the particular rule for said special civil
parties where the action action. Thus, actions for certiorari, prohibition and mandamus should
is personal or by location be commenced in the proper RTC, but the same may, in proper cases, be
of the property where commenced in the SC or CA (Sec. 4, Rule 65); and special rule of venue is
the action is real. provided for quo warranto proceedings (Sec. 7, Rule 66) (Regalado,
2008).
Jurisdiction
Depends upon the There are special civil actions which can only be filed in a MTClike the
jurisdictional amount actions for forcible entry and unlawful detainer. There are also special
or nature of the action civil actions which cannot be commenced in the MTC foremost of which are
the petitions for certiorari, prohibition and mandamus (Ibid).
3.19.3. Jurisdiction and venue******

Jurisdiction Venue
Interpleader *****Follow jurisdictional amounts: Residence of plaintiff or defendant,

(Rule 62)
a. 300/400K for PP; b. 20/50K for at the option of the plaintiff (Sec.
RP (assessed value); c. RTC if it 2, Rule 4).
involves the performance of a
service/right (incapable of PE)
Declaratory Relief and Declaratory relief: RTC Residence of plaintiff or defendant,
Similar Reliefs
(Rule 63) Similar reliefs: jurisdictional amounts. at the option of the plaintiff (Sec.
****SC which has no original jurisdiction 2, Rule 4).
(Tano v. Socrates 1997).
Review of Judgments of Supreme Court on certiorari under Supreme Court
COMELEC AND COA
Rule 65 irt Rule 64
Certiorari, Prohibition, RTC, CA, SC; Also: Sandiganbayan, RTC: if it is directed against MTC, a
Mandamus
(Rule 65) COMELEC in aid of their appellate corporation, a board, an officer or a
jurisdiction (A.M. No. 07-7-12-SC). person; CA/SB;
In election cases involving
MTC/RTC go to COMELEC
(appellate JN; Sec 4)
Quo warranto RTC, CA, SC (Sec. 7, Rule 66). SB SC, CA, or RTC exercising
in aid of its appellate jurisdiction jurisdiction over the territorial area
(PD 1606, as amended by RA No. where the respondent or any of the
8249) respondents resides. If commenced
by OSG, go to RTC Manila, CA or
SC (Sec. 7). Subject to the principle
of Hierarchy of Courts
Expropriation RTC (incapable of pecuniary Land: where located; Personal
(Rule 67)
estimation) (Barangay San Roque v. property: residences, at the election
Heirs of Pastor 2000). of the plaintiff (Sec. 2, Rule 4).
Foreclosure of REM RTC (incapable of pecuniary Where the land or any part thereof
(Rule 68)
estimation) (Barangay San Roque v. is located (Sec. 2, Rule 4).
Heirs of Pastor 2000).
Partition RTC (incapable of pecuniary RP– where located; PP—residences,

(Rule 69)
estimation) at the election of the plaintiff (Sec.
13)
Forcible Entry MTC covered by Rule on Summary Where the property is located
(Rule 70)
Procedure (Sec 3, RA 7691) because it is a real action (Riano,
2012)
Unlawful Detainer MTC covered by Rule on Summary Where the property is located
(Rule 70)
Procedure (Sec 3, RA 7691) because it is a real action (Ibid)
Contempt MTC (?), RTC, CA, SC Indirect contempt against RTC or a court
(Rule 71)
of equivalent or higher rank, or against an
officer appointed by it: file with such
court. If lower court, file with the RTC
of the place but the proceedings may also be
instituted in such lower court subject to
appeal to the RTC (Sec. 5, Rule 70)
****The venue of special civil actions is governed by the general rules on venue,
except as otherwise indicated in the particular rule for said special civil action.
———————————————————————————————
3.19.4. Interpleader [Rule 62]
a) Requisites for interpleader****** 516

b) When to file 517
COMPARISON OF THE EFFECTS OF FAILURE TO ANSWER THE
COMPLAINT***** 517
———————————————————————————————
PRELIMINARIES ON INTERPLEADER
1. It is a special civil remedy whereby a party who has property in his
possession or an obligation to perform, either wholly or partially, but who claims no
interest in the subject, or whose interest, in whole or in part, is not disputed by others, goes to
court and asks that ****CONFLICTING CLAIMANTS to the property or
obligation be required to litigate among themselves in order to determine
finally who is entitled to the same (Sec. 1, Rule 62).633
*****In interpleader, the cause of action is not a violation of a right, as it
is in the usual ordinary civil actions. The plaintiff is confronted with
CONFLICTING CLAIMS over a certain subject matter, over which he has
no interest or even if he has, his interest is not the subject of the controversy.
2. The remedy is afforded **not to protect a person against double liability
but to protect him against double vexation in respect of one liability (Beltran v.
People’s Homesite & Housing Corp., G.R. No. L-25138, August 28, 1969;
Regalado, 2008).
3. Example
a. Classic: *****Warehouseman’s dilemma. The good were hijacked and
kept in the bodega. The real owner (AA) does not have a warehouse receipt—if
the warehouseman does not give the goods to him, AA might sue him as an
accomplice in the hijacking. Now, if he does not give the goods to the one who
holds the warehouse receipt, he may be sued for conversion.
b. Two conflicting claims on a check.634
633
What is an action for interpleader? [12%] SUGGESTEDANSWER:
*****An action for interpleader is a special civil action which is filed whenever conflicting
claims upon the same subject matter are or may be made against a person who claims no
interest whatever in the subject matter, or an interest which in whole, or in part is not disputed by
the claimants, in which case, he may bring the action against the conflicting claimants to compel
them to interplead and litigate their several claims among themselves. (Sec. 1, Rule 62, 1997
Rules of Civil Procedure.
634
Q: A lost the cashier’s check she purchased from XYZ Bank. Upon being notified of the loss. XYZ
Bank immediately issued a “STOP PAYMENT” order. Here comes B trying to encash that same
cashier's check but XYZ Bank refused payment. As precautionary measure, what remedy may XYZ
c. Two women claiming to be widows of the deceased.635

a) Requisites for interpleader******
1. The PLAINTIFF claims no interest in the subject matter or his claim thereto
is not disputed; *****hence, if he has a claim on the subject matter, interpleader
will not apply; the ones claiming a right over it should be other persons, not
the plaintiff. The property could either be personal or real property. In a sense,
we can say the the plaintiff is “confused” as to who is the rightful claimant.
2. There must be AT LEAST TWO or more conflicting636 CLAIMANTS;
3. The parties to be interpleaded must make EFFECTIVE CLAIMS; and
4. The SUBJECT MATTER must be one and the same (Sec. 1, Rule 62).
b) When to file
1. An action for interpleader must be filed WITHIN A REASONABLE TIME
after the dispute has arisen, otherwise it may be BARRED BY LACHES (Wack
Wack Golf & Country Club Inc. v. Lee Won, et al., G.R. No. L-23851, March 26,
1976).
2. Who may file: It is filed by the person against whom the conflicting claims
are made (Sec. 1, Rule 62). The person who files the complaint shall pay the
docket fees and other lawful fees and shall bear the costs and other litigation
expenses **even if he has no interest in the subject matter of the action, unless the court
shall order otherwise (Sec. 7, Rule 62; Riano, 2012).
**The costs, expenses, and attorney’s fees incurred by plaintiff in the action
is recoverable from the defendant who loses in the action and is found by the
court to have caused the unnecessary litigation (Menzi & Co. v. Bastida, 63
Bank avail of with respect to the conflicting claims of A and B over the cashier’s check? Explain. (1996
Bar Question) Answer:
XYZ Bank may file a complaint for interpleader so that the court may resolve the conflicting
claims of A and B over the cashier’s check.
635
Q: LTA, Inc. is the lessee of a building owned by Mr. Tenorio paying rental of P10,000.00 a
month. The owner died on May 10, 1988 and since then, LTA has not paid the monthly rentals,
now amounting to P40,000.00, because two women are both claiming to be widows of Tenorio and
are demanding the rental payments. What legal action may LTA’s counsel take,'-before what court, and
against whom to protect LTA’s interests? Explain. (1988 Bar Question) Answer:
LTA’s counsel should file a complaint for interpleader against the two women claiming to
be widows of Tenorio before the Regional Trial Court so that said court may determine who is entitled
to the rental payments. [TOM: jurisdictional amounts now differ, so follow the present parameters,
supra]
636
In which of the following is Interpleader improper? (2012 BAR)
a. in an action where defendants' respective claims are separate and distinct from each
other.
b. in an action by a bank where the purchaser of a cashier's check claims it was lost and another
person has presented it for payment.
c. in an action by a lessee who does not know where to pay rentals due to conflicting claims on
the property.
d. in an action by a sheriff against claimants who have conflicting claims to a property seized by
the sheriff in foreclosure of a chattel mortgage.
Phil 16).
IMPORTANT PROCEDURAL MATTERS*****

1. Summons shall be served upon the conflicting claimants, together with a
copy of the complaint and order (Sec. 3, Rule 62), for the claimants to file their
Answer and interplead.
2. Can claimant file a MTD? Yes, but with a new ground for dismissal aside from
those under Rule 16, this time under Section 4 of Rule 62—*****the
IMPROPRIETY of the action, that is, the elements of Interpleader are not
present, like, when the plaintiff is a claimant.
[] Section 4. Motion to dismiss. — Within the time for filing an answer,
each claimant may file a motion to dismiss on the ground of IMPROPRIETY
of the interpleader action or on other appropriate grounds specified in Rule 16.
****The period to file the answer shall be TOLLED and if the motion is
denied, the movant may file his answer within the remaining period, but which
shall not be less than five (5) days in any event, reckoned from notice of
denial.
COMPARISON OF THE EFFECTS OF FAILURE TO ANSWER THE

COMPLAINT*****
1. In ordinary civil actions, one can file a Motion to declare the defendant in
DEFAULT. The effect is that court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant, unless the court in its
discretion requires him to submit evidence.
[] Rule 9, Section 3. 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.
(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 order to see to it that the evidence submitted is not fabricated.
2. In environmental cases, there is no need to file a Motion, the Court shall
declare the defendant in default.
[] Rule 2, SEC. 15. Effect of failure to answer. – Should the defendant fail
to answer the complaint within the period provided, the court shall declare
defendant in default and upon motion of the plaintiff, shall receive evidence
ex parte and render judgment based thereon and the reliefs prayed for.
3. In interpleader, there must be a Motion filed but the effect is that the
defaulting claimant is barred from any claim on the subject matter.
****Default upon motion [Sec 5]: If any claimant fails to plead within the
time herein fixed [within fifteen (15) days from service of the summons], the
court may, on motion, declare him in default and thereafter render judgment
barring him from any claim in respect to the subject matter.
4. In Expropriation and Eminent Domain cases, even if the defendant does not
file an Answer, there is no declaration of default. His defenses are waived but
he cannot be barred from participation in the proceedings, most especially in the
second stage of the process—the determination of just compensation.
[] Rule 67, Section 3. Defenses and objections. — If a defendant has no
objection or defense to the action or the taking of his property, he may file and
serve a notice of appearance and a manifestation to that effect, specifically
designating or identifying the property in which he claims to be interested,
within the time stated in the summons. Thereafter, he shall be entitled to notice
of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the
complaint, or any objection or defense to the taking of his property, he shall serve
his answer within the time stated in the summons. The answer shall
specifically designate or identify the property in which he claims to have an
interest, state the nature and extent of the interest claimed, and adduce all his
objections and defenses to the taking of his property. No counterclaim, cross-
claim or third-party complaint shall be alleged or allowed in the answer or any
subsequent pleading.
****A defendant waives all defenses and objections not so alleged but
the court, in the interest of justice, may permit amendments to the answer to
be made not later than ten (10) days from the filing thereof. However, at the
trial of the issue of JUST COMPENSATION whether or not a defendant has
previously appeared or answered, he may present evidence as to the amount
of the compensation to be paid for his property, and he may share in the
distribution of the award.
5. In Summary Procedures such as Forcible Entry and Unlawful Detainer, a
Motion to declare the defendant in default is a PROHIBITED PLEADING [Sec
13, Rule 70]. What action then? *****The court, motu propio, or on motion of
the plaintiff, shall render judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for therein.
[] Section 7. Effect of failure to answer. — Should the defendant fail to
answer the complaint within the period above provided, the court, motu
proprio or on motion of the plaintiff, shall render judgment as may be
warranted by the facts alleged in the complaint and limited to what is prayed
for therein. The court may in its discretion reduce the amount of damages
and attorney’s fees claimed for being excessive or otherwise unconscionable,
without prejudice to the applicability of section 3 (c), Rule 9 if there are two or
more defendants. [This refers to Effect of partial default, supra]
———————————————————————————————
3.19.5. Declaratory reliefs and similar remedies [Rule 63]
On Declaratory Relief 521

a) Who may file the action 521
b) Requisites of action for declaratory relief****** 522
c) When court may refuse to make judicial declaration 523
d) Conversion to ordinary action 524
On Similar Remedies 524
a. Reformation of an instrument 524
b. Consolidation of ownership 525
c. Quieting of title to real property 525
———————————————————————————————
*****Two types of actions covered by Rule 63

1. Petition for declaratory relief; and
2. Similar remedies:
a. Action for reformation of an instrument;
b. Action to quiet title; and
c. Action to consolidate ownership under Art. 1607 NCC (Riano, 2012).
On Declaratory Relief
1. DECLARATORY RELIEF: It is a special civil action brought by a person
interested under a deed, will, contract or other written instrument, or whose
rights are affected by a statute, executive order or regulation, ordinance, or
any other governmental regulation, BEFORE BREACH OR VIOLATION
thereof, asking the court to determine any question of construction or validity
arising, and for a declaration of his rights or duties thereunder (Sec. 1, Rule 63).
2. Declaratory judgments are to be **distinguished from those which are
advisory in character, since they are res judicata and binding upon the parties
and those in privity with them, and from decisions of abstract or moot
questions since they must involve a real controversy (16 Am. Jur. Declaratory
Judgments).
3. The enumeration of subject matter is EXCLUSIVE, subject to clear and
unambiguous contract or statute (Riano, 2012).
4. In declaratory relief, the court is given the discretion to act or not to act on the
petition. It may therefore, choose not to construe the instrument sought to be
construed or could refrain from declaring the rights of the petitioner under the
deed or the law. *****With respect to actions described as “similar remedies,” the court
cannot refuse to render a judgment thereon (Riano, 2012).
*****In Declaratory Relief, the court cannot be compelled by mandamus to

give the petition due course. It is a matter of judicial discretion. It is not a
ministerial duty of the court.
****But those under “similar remedies” (Quieting of Title & Consolidation
of Ownership), the court has no discretion—it has to act on them, otherwise,
mandamus will lie. *****But mandamus will lie not to make the Court decide in a
particular way, i.e., to decide on the favor of the petitioner.
5. Note that the Supreme Court does not have original JN over a petition for
declaratory relief. It must be filed with the RTC. ******However, SC may take
cognizance of a petition for Declaratory Relief and convert it to a Petition for
Certiorari or Prohibition, so that it would acquire JN over it. But this happens
only when the allegations in the petition raised issues of
TRANSCENDENTAL IMPORTANCE or if there is allegation of
GADALEJ, otherwise, it will dismiss the case for lack of JN over the subject
matter. NB: SC has original JN over petitions for Certiorari, Prohibition,
Mandamum, Quo Warranto. SC only has appellate JN over Declaratory Relief
cases, not original JN.
a) Who may file the action

1. Any person: (IAC)
a. Interested under a deed, will, contract or other written instrument (Sec.
1, Rule 63);
b. Whose rights are affected by a statute, executive order or regulation,
ordinance or any other governmental regulation (Sec. 1, Rule 63); and
c. The other parties are all persons who have or claim any interest which
would be affected by the declaration (Sec. 2, Rule 63).
2. Notice shall be sent to the Solicitor General if subject matter involves the validity
of a statute, EO or regulation, or any governmental regulation, or the constitutionality of a local
government ordinance.
3. In any action involving the validity of a local government ordinance notice shall be sent
to the prosecutor or lawyer of the local government unit.
4. When an action for declaratory relief NOT available******
a. *****To obtain judicial declaration of citizenship;
b. Actions to resolve political questions;
c. Those determinative of the issues rather than a construction of
definite status, rights and relations;
d. Terms of assailed ordinances are not ambiguous or of doubtful
meaning;
e. In a petition to seek relief from a moot and academic question;
f. Where the contract or statute on which action is based has been
**breached;
g. When the petition is based on the happening of a contingent event;
h. When the petitioner is not the real party in interest;
i. Where the administrative remedies have not yet been exhausted;

j. ******If the decision does not terminate uncertainty or controversy
(Albano, 2010);637
k. *****Petition for declaratory relief not proper to assail judgment or to
clarify the judgment of the RTC.
l. *****Action to ask the court to declare filiation and consequently
hereditary rights (Riano, 2012).
m. To determine whether a student should graduate with Latin honors or
not.638
b) Requisites of action for declaratory relief******

1. The subject-matter of the controversy must be a deed, will,639 contract, or
other written instrument, statute,640 executive order or regulation or
ordinance; (hence the prohibited actions, supra)
2. The terms of said documents and validity thereof are doubtful and require
judicial construction641 (Santos v. Aquino, et al., 94 Phil 65);
3. *****There must have been no breach642 of the document in question
(Teodoro v. Mirasol, 99 Phil. 150; Reparations Commission v. Northern Line,
Inc., G.R. No. L-24835, July 31, 1970). Otherwise an ordinary civil action is
the remedy;
4. There must be an actual justiciable controversy or ripening seeds of one
between persons whose interests are adverse;
5. The issue must be ripe for judicial determination (Tolentino v. Board of
Accountancy, et al., 90 Phil. 83), as for example, where all administrative
remedies have been exhausted; and
637
In a declaratory relief action, the court may refuse to exercise its power to declare rights and
construe instruments in what instance/s? (2012 BAR)
a. When a decision would not terminate the controversy which gave rise to the action.
b. InanactiontoconsolidateownershipunderArt.1607oftheCivilCode.
c. To establish legitimate filiation and determine hereditary rights.
d. (a)and(c)above
638
(1998 Bar Question) A student flies action for declaratory relief against his school to determine
whether he deserves to graduate with Latin honors. Is this action tenable? [3%]
SUGGESTED ANSWER: No. The action for declaratory relief is not tenable. Whether the
student deserves to graduate with Latin honors does not fall within the matters subject to declaratory
relief, namely, a deed, will contract or other written instrument, or a statute, executive order or
regulation, ordinance, or any other governmental regulation. (Sec. 1 of Rule 63, 1997 Rules of
Civil Procedure.)
639
*****Careful as to “wills” because the remedy could be its probate.
640
*****But yes, Declaratory Relief is proper in questioning the constitutionality of a law, hence, do
not file a Certiorari or Prohibition (only SC can convert the same to one).
641
*****The questions raised in a petition for Declaratory Relief are the declaration of rights or duties
under a law, executive order, deed, will, etc., as to questions of construction or validity.
642
*****The action must be filed before there’s a breach or violation of the law. If there is already a
violation of the law, the remedy is to file a corresponding ordinary civil action. Hence, the rules on
ordinary civil actions do not apply since you file the petition before actual breach.
6. ****Adequate relief is not available through other means or other forms of

action or proceedings (Ollada v. Central Bank, G.R. No. L-1357, May 31, 1962;
Regalado, 2008).
c) When court may refuse to make judicial declaration

1. Except in actions falling under similar remedies, the court, motu proprio or upon
motion, ****may refuse to exercise the power to declare rights and to construe
instruments in any case:
a. Where a decision would not terminate the uncertainty or controversy
which gave rise to the action; or
b. In any case where the declaration or construction is not necessary
and proper under the circumstances (Sec. 5, Rule 63).
2. Where the **relief sought would be determinative of issues rather than a
construction of definite stated rights, status, and other relations commonly
expressed in written instruments, the case is not one for declaratory judgment.
Considering that in a proceeding for declaratory judgment the relief which may be
sought is **limited only to a declaration of rights and not a determination or
trial of issues, a declaratory relief proceeding is **unavailable where a
judgment may be made only after a judicial investigation of the issues
(Kawasaki Port Services Corp., et al. v. Amores, et al., G.R. No. 58340, July 16,
1991).
d) Conversion to ordinary action

1. If before the final termination of the case, a breach or violation of an instrument,
or a statute, executive order or regulation, ordinance, or any other governmental
regulation should take place (Sec. 6, Rule 63).
2. The law does not require that there shall be an actual pending case. It is
**sufficient that there is a breach of law, an actionable violation, to bar a
complaint for declaratory relief (Borja v. Villadolid, G.R. No. L-1897,
November 28, 1949).
3. Third-party complaint not proper in actions for declaratory relief: A third-
party complaint is supposed to seek contribution, indemnity, subrogation or
other relief from the third party defendant in respect to the claim of the plaintiff
against him, and hence it is **improper when the main case is for declaratory
relief which purpose is mere interpretation and construction (Comm. of
Customs, et al. v. Cloribel, et al. G.R. No. L-21036, June 30, 1977). A compulsory
counterclaim may be set up (Visayan Packing Corp. v. Reparations Commission,
G.R. No. L-20577, May 31, 1987).
—————————————————
On Similar Remedies
[] Proceedings considered as similar remedies
1. Action for Reformation of an Instrument authorized under Arts. 1359 to 1369;
2. Action to Quiet Title authorized by Arts. 476 to 481 of NCC; and

3. Action to Consolidate Ownership under Art. 1607 NCC (Regalado, 2008).
**These 3 remedies are considered similar to declaratory relief because they
also result in the adjudication of the legal rights of the litigants, often
without the need of execution to carry judgment into effect (Ibid).
a. Reformation of an instrument
1. It is not an action brought to reform a contract but to reform the
instrument EVIDENCING the contract. It **presupposes that there is
nothing wrong with the contract itself because there is a meeting of minds
between the parties. The contract is to be reformed because despite the meeting
of minds of the parties as to the object and cause of the contract, the instrument
which is supposed to embody the agreement of the parties does not reflect
their true agreement **by reason of mistake, inequitable conduct or accident.
*****The action is brought so the TRUE INTENTION of the parties
may be expressed in the instrument (Art. 135, NCC; Riano, 2012). File it with
the RTC since it is incapable of pecuniary estimation. The action is not
annulment or rescission because there is nothing wrong with the contract itself.
There is no defect in the consent, hence, it is not voidable. If the defect is in the
object or the cause, it is void. If there is lesion or economic injury, it is valid but it
can be rescinded or set aside.
2. When to reform instrument: The instrument may be reformed if it does not
express the true intention of the parties because of lack of skill of the person
drafting the instrument (Art. 1363, NCC);
*EG: **If the parties agree upon the mortgage or pledge of property,
but the instrument states that the property is sold absolutely or with a right of
repurchase, reformation of the instrument is proper (Art. 1365, NCC).
3. Remedy if the consent of a party to a contract has been procured by fraud,
inequitable conduct, or accident: Where the consent of a party to a contract
has been procured by fraud, inequitable conduct or accident, and an instrument
was executed by the parties in accordance with the contract, **what is defective
is the contract itself because of VITIATION of consent. The remedy is not to
bring an action for reformation of the instrument but to file an action for
ANNULMENT of the contract (Art. 1359, NCC).
4. ****Reformation of the instrument CANNOT be brought to reform any of
the following: (DWV)
a. Simple donation inter vivos wherein no condition is imposed;
b. Wills; or
c. When the real agreement is void (Art. 1366, NCC).
b. Consolidation of ownership
1. The action brought to consolidate ownership is **not for the purpose of
consolidating the ownership of the property in the person of the vendee or
buyer ***but for the REGISTRATION of the property. Art. 1607 requires the
filing of the petition to consolidate ownership *****because the law
precludes the registration of the consolidated title without judicial order
(Cruz v. Leis, G.R. No. 125233, March 9, 2000).
2. The concept of consolidation of ownership under Art. 1607 of Civil Code, has
its origin in the substantive provisions of the law on sales. *****Under the law,
a contract of sale may be extinguished either by legal redemption (Art. 1619,
NCC) or conventional redemption (Art. 1601, NCC).
a. [Because of the law] Legal redemption (RETRACTO LEGAL) is a
statutory mandated redemption of a property previously sold.
b. [Because of the agreement between the parties] Conventional
redemption (PACTO DE RETRO) sale is one that is not mandated by the
statute but one which takes place because of the stipulation of the parties to the
sale.
*****The period of redemption may be fixed by the parties in which case
the period ****cannot exceed 10 years from the date of the contract. In the
absence of any agreement, the redemption period shall be ****4 years from the date
of the contract (Art. 1606, NCC). When the redemption is not made within the period
agreed upon, in case the subject matter of the sale is a real property, Art. 1607
provides that the *****consolidation of ownership in the vendee shall not be
recorded in the Registry of Property without a judicial order, after the
vendor has been duly heard.
3. *****File the case with the RTC because it is an action which is incapable of
pecuniary estimation. The action is NOT to acquire ownership—he is already
the owner—but only to register the property in his name as required by the law
under Art. 1607 NCC.
[] Cruz vs. Leis 2000: It bears stressing that notwithstanding Article 1607,
the recording in the Registry of Property of the consolidation of ownership
of the vendee is not a condition sine qua non to the transfer of ownership…
The essence of a pacto de retro sale is that title and ownership of the property
sold are immediately vested in the vendee a retro, subject to the resolutory
condition of repurchase by the vendor a retro within the stipulated period.
Failure thus of the vendor a retro to perform said resolutory condition vests
upon the vendee by operation of law absolute title and ownership over the
property sold. As title is already vested in the vendee a retro, his failure to
consolidate his title under Article 1607 of the Civil Code does not impair such
title or ownership for *****the method prescribed thereunder is merely for
the purpose of registering the consolidated title. The dispositive portion is
worth reading: WHEREFORE… the petitioners are deemed owners of the
property by reason of the failure of the vendor.. to repurchase the same within the
period stipulated. However, Transfer Certificate of Title in the name of petitioner,
which was issued without judicial order, is hereby ordered CANCELLED, and
Transfer Certificate of Title in the name of respondent is ordered REINSTATED,
without prejudice to compliance by petitioners with the provisions of

Article 1607 of the Civil Code.
c. Quieting of title to real property

1. This action is brought to remove a cloud on title to real property or any
interest therein. The action contemplates a situation where the instrument or a
record is **apparently valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be prejudicial to said title to
real property.
2. This action is then **brought to remove a cloud on title to real property or
any interest therein. It may also be brought as a **preventive remedy to
prevent a cloud from being cast upon title to real property or any interest
therein (Art. 476, NCC).
3. *****To determine the court with jurisdiction on actions to quiet title (removal
of cloud on the title), which involves title or interest in a real property, check the
assessed value of the subject matter. Hence 20K/50K limits for MTC.
[] Heirs of Reterta vs. Sps. Mores 2011 [Bersamin]: Conformably with the
provision, because an action for reconveyance or to remove a cloud on one’s
title involves the title to, or possession of, real property, or any interest
therein, exclusive original jurisdiction over such action pertained to the RTC, unless the
assessed value of the property did not exceed P20,000.00 (in which instance
the MTC having territorial jurisdiction would have exclusive original jurisdiction).
*****Determinative of which regular court had jurisdiction would be the
ALLEGATIONS of the complaint (on the assessed value of the property) and
the principal relief thereby sought. (not the title of the complaint).
Section 1, Rule 63 of the Rules of court does not categorically require
that an action to quiet title be filed before the RTC. It repeatedly uses the
word “may” – that an action for quieting of title “may be brought under [the]
Rule” on petitions for declaratory relief, and a person desiring to file declaratory
“may xxx bring an action in the appropriate Regional Trial Court” The useof the
word “may” in a statute denotes that the provision is merely permissive and
indicates a mere possibility, an opportunity or an option.
In contrast, the mandatory provision of the Judiciary Reorganization Act of
1980, as amended, uses the word “shall” and explicitly requires the MTC to
exercise exclusive original jurisdiction over all civil actions which involves
title to or possession of real property where the assessed value does not
exceed P20,000 (Malana vs. Tappa, G.R. No. 181303, September 17, 2009).
The Procedure for the quieting of title or the removal of cloud therefrom
shall be governed by such rules of court as the Supreme Court shall promulgate
(Art. 481, NCC).
———————————————————————————————
3.19.6. Review of judgments and final orders or resolution of the

Comelec and643 COA644 [Rule 64]645
a) Application of Rule 65 under Rule 64 528

b) Distinction in the application of Rule 65 to judgments of the Comelec and COA and the
application of Rule 65 to other tribunals, persons and officers***** 528
———————————————————————————————
a) Application of Rule 65 under Rule 64

1. Constitutional basis for the application of Rule 65 under Rule 64
Sec. 7, Art. IX-A of the Constitution reads, “unless otherwise provided by
the Constitution or by law, any decision, order or ruling of each commission may
be brought to the Supreme Court on certiorari by the aggrieved party within 30
days from receipt of a copy thereof.” The provision was interpreted by the
Supreme Court to refer to certiorari under Rule 65 and not appeal by
certiorari under Rule 45. To implement the above constitutional provision, the
SC promulgated Rule 64 (Aratuc v. COMELEC, 88 SCRA 251; Dario v. Mison,
176 SCRA 84).
*The petition for certiorari shall be filed within 30 days from notice of the
judgment or final order or resolution sought to be reviewed (Sec. 3, Rule 64).
*****Fresh Period Rule is inapplicable. The 30-day period has express
643
The decisions of the Commission on Elections or the Commission on Audit may be challenged by
(2011 BAR)
(A) petition for review on certiorari filed with the Supreme Court under Rule 45.
(B) petition for review on certiorari filed with the Court of Appeals under Rule 42.
(C) appeal to the Supreme Court under Rule 54.
(D) special civil action of certiorari under Rule 65 filed with the Supreme Court.
644
What is the proper remedy to secure relief from the final resolutions of the Commission On Audit?
(2011 BAR)
(A) Petition for review on certiorari with the Supreme Court.
(B) Special civil action of certiorari with the Court of Appeals.
(C) Special civil action of certiorari with the Supreme Court.
(D) Appeal to the Court of Appeals.
645
Explain each mode of certiorari: (2006 Bar Question) As a mode of review of the decisions of the
National Labor Relations Commission and the Constitutional Commissions. 2.5%
SUGGESTED ANSWER: The mode of review of the decision of the NLRC is via a special
civil action for certiorari under Rule 65, but pursuant to the hierarchy of the courts enunciated in
the case of St. Martin’s Funeral Homes v. NLRC, 295 SCRA 494 (1998), the same should be filed in
the Court of Appeals.
The mode of review of the decisions of two Constitutional Commissions, the Commission on
Elections and the Commission on Audit, as provided under Rule 64 of the 1997 Revised Rules of
Civil Procedure/ is a special civil action for certiorari under Rule 65. Decisions of the Civil Service
Commission, however, are reviewable by petition for review to be filed with the Court of Appeals
under Rule 43 of the 1997 Revised Rules of Civil Procedure.
reference to the judgment or a final order of the commission concerned (Sec. 3,

Rule 64).
2. MODE OF REVIEW: A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may be brought by the
aggrieved party to the Supreme Court on certiorari under Rule 65, except as
hereinafter provided (Sec. 2, Rule 64).
*****Always remember: There are two modes of review: 1. Appeal; 2.
Certiorari. Hence, as to review of judgments of the Comelec under Rule 64,
there is no appeal, but there is still a mode of review, which is certiorari.
*The decision of the Civil Service Commission is now reviewable by the
Court of Appeals (Sec. 1, R.A. No. 7902). The mode of review under Rule 64 is
totally different from the mode applicable to the judgment, final order or
resolution of the Civil Service Commission. Appeal shall be taken by filing a
verified petition for review to the Court of Appeals under Rule 43 (Riano, 2012).
**A review includes digging into the merits and unearthing errors of
judgment, while certiorari deals exclusively with grave abuse of discretion,
which may not exist even when the decision is otherwise erroneous. Certiorari implies an
indifferent disregard of the law, arbitrariness and caprice, an omission to
weight pertinent considerations, a decision arrived at without rational
deliberation (Aratuc vs. COMELEC, 88 SCRA 251).
3. ORDER OF COMMENT: If the SC finds the petition sufficient,
respondents will be ordered to file a verified comment within 10 days from
notice of such order (Sec. 6, Rule 64).
4. OUTRIGHT DISMISSAL of petition (DUR)
a. It was filed manifestly for delay;
b. The questions raised are too unsubstantial to warrant further
proceedings (Sec. 6, Rule 64); or
c. Failure of the petitioner to comply with any of the requirements
under Sec. 5 Rule 64 shall be sufficient ground for the dismissal of the petition.
5. EFFECT of Filing: The filing of a petition for certiorari shall **NOT stay the
execution of the judgment or final order or resolution sought to be reviewed,
unless the Supreme Court shall direct otherwise upon such terms as it may deem just (Sec. 8,
Rule 64).
**To prevent the execution of the judgment, Rule 65 may be availed of
suppletorily and the petitioner may obtain TRO or a writ of preliminary
injunction because the mere filing of the petition does not interrupt the
course of the principal case (Sec. 7, Rule 65; Riano, 2012).
6. SUBMISSION OF DECISION: Unless the Court sets the case for oral
argument, or requires the parties to submit memoranda, the case shall be deemed
submitted for decision upon the filing of the comments on the petition, or of
such other pleadings or papers as may be required or allowed, or the expiration of
the period to do so (Sec. 9, Rule 64).
b) Distinction in the application of Rule 65 to judgments of the Comelec

and COA and the application of Rule 65 to other tribunals, persons and
officers*****
Rule 64 for COMELEC and COA Review of judgments, final orders or resolutions of other
tribunals, persons and officer
Petition is based on questions of law Petition is based on questions of law

Mode of review Mode of review
Involves review of judgments, final orders or Involves the review of the judgment final orders or
resolutions of COMELEC and COA resolutions of any tribunal board or officer exercising
judicial or quasi-judicial functions.
*****Purpose: Certiorari: annul/modify proceedings; Prohibition:
command a tribunal to desist from further
proceedings; Mandamus: command respondent to
perform an act which he is supposed to do.
Filed within 30 days from notice of judgment, Filed within 60 days from notice of judgment, final
final order or resolution sought to be reviewed order or resolution sought to be reviewed
Does not stay the execution unless SC shall direct Unless a writ of preliminary injunction or temporary
otherwise upon such terms as it may deem just (Sec. 8, restraining order is issued, it does not stay the
Rule 64) challenged proceeding
The COMELEC and COA shall be public The judge, court, quasi-judicial agency, tribunal,
respondents who are impleaded in the action corporation, board, officer or person shall be
public respondents who are impleaded in the
action
The filing of MNT or MR, if allowed under **As a general rule motion for reconsideration
the procedural rules of the Commission, shall or for new trial is required.
interrupt period fixed
The court is in the exercise of its appellate The court is in the exercise of its appellate
jurisdiction and power of review jurisdiction and power of review
Petition for certiorari is to be filed before the Petition for certiorari is to be filed with the CA,
SC SB, RTC.
If MR is denied, the aggrieved party may file the If MR is denied, the aggrieved party will have
petition within the remaining period, but which another 60 days within which to file the petition
shall not be less than 5 days. *****Fresh counted from the notice of denial. Fresh period
period rule is not applicable. Rule is applicable.
******Caveat! If the decision of the Comelec is on an administrative matter, say

on a bidding and it did not get the best bid, go to the CA (not the SC), because it
is NOT an election case, even if there is allegation of GADALEJ! One can also
go to the RTC for certiorari. Also, in election cases, an act or omission made by
an MTC or RTC shall be reviewed through a petition for certiorari filed with the
COMELEC, not CA.646

—————————————————————————————
646
In election cases involving an act or omission of an MTC or RTC, a certiorari petition shall be filed
with: (2012 BAR)
a. TheCourtofAppeals
b. TheSupremeCourt
c. The COMELEC
d. TheCourtofAppealsortheCOMELECbothhavingconcurrentjurisdiction
3.19.7. Certiorari, prohibition and mandamus [Rule 65]647
RES IPSA LOQUITUR UNDER RULE 65 532

a) Definitions and distinctions 532
i. Certiorari distinguished from appeal by certiorari** 532
ii. Prohibition and mandamus distinguished from injunction 534
b) Requisites****** 535
c) When petition for certiorari, prohibition and mandamus is proper 535
PROHIBITION 536
MANDAMUS 542
d) Injunctive relief 543
e) Exceptions to filing of motion for reconsideration before filing petition 546
f) Reliefs petitioner is entitled to 546
g) Actions/omissions of MTC/RTC in election cases 547
h) When and where to file petition 547
i) Effects of filing of an unmeritorious petition 547
———————————————————————————————
RES IPSA LOQUITUR UNDER RULE 65

[] Section 8… ****The court, however, may dismiss the petition if it finds the
same to be patently without merit, prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to require consideration.
a) Definitions and distinctions

Certiorari Prohibition Mandamus
647
*****In an original action for certiorari, prohibition, mandamus, or quo warranto , when does
the Court of Appeals acquire jurisdiction over the person of the respondent? (2013 BAR)
(A) Upon the service on the respondent of the petition for certiorari, prohibition, mandamus or quo
warranto, and his voluntary submission to the jurisdiction of the Court of Appeals.
(B) Upon service on the respondent of the summons from the Court of Appeals.
(C) Upon the service on the respondent of the order or resolution of the Court of Appeals
indicating its initial action on the petition.
(D) By respondent’s voluntary submission to the jurisdiction of the Court of Appeals.
(E) Under any of the above modes.
Definitio Certiorari is an Prohibition is an Mandamus is an extraordinary

n
extraordinary writ extraordinary writ writ commanding a tribunal,
annulling or modifying commanding a tribunal, corporation, board or person,
the proceedings of a corporation, board or to do an act required to be
tribunal, board or officer person, whether exercising done:
exercising judicial or judicial, quasi-judicial or a. When he unlawfully
quasi-judicial functions ministerial functions, to neglects the performance of
when such tribunal, board desist from further an act which the law
or officer has acted proceedings when said specifically enjoins as a duty,
without or in excess of proceedings are without and there is no other plain,
its or his jurisdiction, or or in excess of its speedy and adequate remedy in
with grave abuse of jurisdiction, or with abuse the ordinary course of law; or
discretion amounting to of its discretion, there b. When one unlawfully
lack or excess of being no appeal or any excludes another from the
jurisdiction, there being other plain, speedy and use and enjoyment of a right
no appeal or any other adequate remedy in the or office to which the other is
plain, speedy and adequate ordinary course of law entitled (Sec. 3, Rule 65).
remedy in the ordinary (Sec. 2, Rule 65).
course of law (Sec. 1, Rule
65).
Against Directed against an entity Directed against an entity Directed against an entity or
whom
or person exercising or person exercising person exercising ministerial
judicial or quasi-judicial judicial, quasi-judicial function.
function. or ministerial function.
Ground Entity or person is alleged Entity or person is alleged Entity or person is alleged to
to have acted without to have acted without have unlawfully neglected a
jurisdiction; in excess of jurisdiction; in excess of ministerial duty; or excluded
jurisdiction; or with grave jurisdiction; or with grave another from a right or office.
abuse of discretion abuse of discretion
Purpose Purpose is to annul or Purpose is to have Purpose is for respondent to: a.
nullify a proceeding. respondent desist from Do the act required; and b. To
further proceeding. pay damage.
Nature This remedy is corrective This remedy is preventive This remedy is affirmative or
– to correct usurpation and negative – to positive (if the performance of
of jurisdiction (Se.c 1, restrain or prevent a duty is ordered) or it is
Rule 65). usurpation of jurisdiction negative (if a person is ordered
(Sec. 2, Rule 65). to desist from excluding
another from a right or
office)(Sec. 3, Rule 65).
Scope Extends to discretionary Extends to discretionary Only for ministerial acts.
acts. and ministerial acts.
*****Instances when the petitions for certiorari, mandamus and prohibition are
NOT available
1. Rule on Summary Procedure as to interlocutory order issued by the lower court
(Sec. 19(g), Rules on Summary Procedure);
2. Writ of Amparo against any interlocutory order (Sec. 11(l), Rule on Writ of
Amparo);
3. Petition for writ of Habeas data against any interlocutory order (Sec. 13(l), A.M.
No. 08-1-16);
4. Small claims cases against interlocutory order issued by the lower court (Sec.
14(g) of A.M. No. 08-8-7-SC).
i. Certiorari distinguished from appeal by certiorari**

Rule 65 (Certiorari) Rule 45 (Appeal by Certiorari)
A special civil action that is an original and Mode of Appeal

independent action and not a mode of appeal.
May be directed against an interlocutory Seeks to review final judgments or final
order or matters where no appeal may be taken orders
from
GR: Involves questions of jurisdiction GR: Involves question of law
XPN: When it is necessary to delve into factual XPNs: In Writ of Amparo, Habeas Data and
issues in order to resolve allegations of grave Writ of Kalikasan, it may involve both
abuse of discretion as a ground (Balba v. Peak questions of law and facts.
Development 2005).
Directed against an interlocutory order of a Involves the review of the judgment, final
court or where there is no appeal or any other orders or resolutions of the CA,
plain, speedy or adequate remedy Sandiganbayan, CTA, RTC or other courts
Filed not later than 60 days from notice of Filed within 15 days from notice of judgment,
judgment, order or resolution sought to be final order or resolution appealed from
assailed.
Unless a writ of preliminary injunction or temporary Stays the judgment or order appealed from*****
restraining order is issued, it does not stay the
challenged proceeding
The judge, court, quasi-judicial agency, tribunal, The appellant and the appellee are the original
corporation, board, officer or person shall be parties to the action, and the lower court or
public respondents who are impleaded in the quasi-judicial agency is not impleaded
action
As a general rule motion for reconsideration Motion for reconsideration is not required
or for new trial is required. If a motion for
reconsideration or new trial is filed, another 60
days shall be given to the petitioner (A.M. No.
02-03-SC).
Court exercises original jurisdiction The court is in the exercise of its appellate
jurisdiction and power of review.
Filed with the RTC, CA, Sandiganbayan or Filed with the SC
COMELEC
ii. Prohibition and mandamus distinguished from injunction

Prohibition Mandamus Injunction
Definiti Prohibition is an Mandamus is an Main action for injunction

on
extraordinary writ extraordinary writ seeks to enjoin the
commanding a tribunal, commanding a tribunal, defendant from the
corporation, board or corporation, board or commission or
person, whether exercising person, to do an act required continuance of a specific
judicial, quasi-judicial or to be done: 1. When he act, or to compel a
ministerial functions, to unlawfully neglects the particular act in violation
desist from further performance of an act of the rights of the
proceedings when said which the law specifically applicant. PI is a
proceedings are without or enjoins as a duty, and there provisional remedy to
in excess of its jurisdiction, is no other plain, speedy and preserve the status quo
or with GADALEJ there adequate remedy in the and prevent future wrongs
being no appeal or any ordinary course of law; or 2. in order to preserve and
other plain, speedy and When one unlawfully protect certain interests or
adequate remedy in the excludes another from the rights during the pendency
ordinary course of law (Sec. use and enjoyment of a right of an action.
2, Rule 65). or office to which the other
is entitled (Sec. 3, Rule 65).
Nature Special civil action Special civil action Ordinary civil action
Purpose To prevent an To compel the performance For the defendant either to
encroachment, excess, of a ministerial and legal refrain from an act or to
usurpation or assumption duty; perform not necessarily a
of jurisdiction; legal and ministerial duty
Against May be directed against May be directed against Directed against a party
whom
entities exercising J or QJ judicial and non-judicial
or ministerial functions entities
Scope Extends to discretionary Extends only to ministerial Does not necessarily
and ministerial functions functions extend to ministerial,
discretionary or legal functions
How Always the main action Always the main action May be the main action or
filed
just a provisional remedy
Court May be brought in the SC, May be brought in the SC, May be brought in the
which
has CA, SB or RTC which has CA, SB or RTC which has RTC which has
jurisdict jurisdiction over the jurisdiction over the jurisdiction over the
ion territorial area where territorial area where territorial area where
respondent resides. respondent resides. respondent resides.
b) Requisites******
1. Requisites of a valid certiorari
a. The petition is directed against a tribunal, board or officer exercising
judicial or quasi-judicial functions;
b. Such tribunal, board or officer has acted without or in excess of
jurisdiction or with GADALEJ; and

c. There is neither appeal nor any plain, speedy and adequate remedy
in the ordinary course of law for the purpose of annulling or modifying the
proceeding.
**There must be capricious, arbitrary and whimsical exercise of power
for it to prosper (Sec. 1 Rule 65; Aggabao v. Comelec, G.R. No. 163756, January
26, 2005; Riano, 2009).
2. Requisites of a valid prohibition
a. There must be a **controversy;
b. Respondent is exercising judicial, quasi-judicial functions or ministerial
functions;
c. Respondents acted without or in excess of its jurisdiction or with
GADALEJ; and
d. There must be no appeal or other plain, speedy and adequate remedy
(Sec. 2, Rule 65).
3. Requisites of a valid mandamus
a. There must be a ****clear legal right or duty;
b. The act to be performed must be within the powers of the respondent
to perform;
c. The respondent must be exercising a ****ministerial duty;
d. The duty or act to be performed must be existing (a correlative right will be
denied if not performed by the respondent); and
e. There is no appeal or other plain, speedy and adequate remedy in the
ordinary course of law (Sec. 3, Rule 65).
c) When petition for certiorari, prohibition and mandamus is proper
CERTIORARI
1. It is a writ issued by a superior court to an inferior court, board or officer
exercising judicial or quasi-judicial functions whereby the record of a particular
case is ordered to be elevated for review and correction in matters of law.
2. It is commenced by a verified petition accompanied by a certified true copy
of the judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn certification of non-
forum shopping (Sec. 1, Rule 65). NB: one has to file an MR before filing a
petition for certiorari,648 although the same is not always fatal.649,650

3. GROUNDS for certiorari—That a tribunal, board or officer exercising judicial
or quasi-judicial functions acted:
a. Without or in excess of jurisdiction;
b. In grave abuse of discretion amounting to lack or excess of jurisdiction
(GADALEJ)
4. Differentiate:
a. Judicial function – Is where the tribunal or person has the power to
648
Q: The Ombudsman found probable cause to charge with plunder the provincial governor, vice
governor, treasurer, budget officer, and accountant. An Information for plunder was filed with the
Sandiganbayan against the provincial officials except for the treasurer who was granted immunity when
he agreed to cooperate with the Ombudsman in the prosecution of the case. Immediately, the
governor filed with the Sandiganbayan a petition for certiorari against the Ombudsman claiming there
was grave abuse of discretion in excluding the treasurer from the Information. (2015)
a. Was the remedy taken by the governor correct? A: NO, the remedy taken by the Governor is
not correct. ******The petition for certiorari is a remedy that is only available when there is no
plain, speedy and adequate remedy under the ordinary course of law; hence, the Governor should
have filed a Motion for Reconsideration. Besides, there is no showing that the Ombudsman
committed grave abuse of discretion in granting immunity to the treasurer who agreed to cooperate
in the prosecution of the case.
b. Will the writ of mandamus lie to compel the Ombudsman to include the treasurer in the
Information? A: NO, Mandamus will not lie to compel the Ombudsman to include the treasurer in the
Information. *****In matters involving exercise of judgment and discretion, mandamus may only be
resorted to in order to compel respondent tribunal, corporation, board, officer or person to take
action, but it cannot be used to direct the manner or particular way discretion is to be exercised,
or to compel the retraction or reversal of an action already taken in the exercise of judgment or
discretion (Ampatuan, Jr. v. Secretary De Lima, G.R. No. 197291, April 3, 2013). Evidently, the
Ombudsman’s act of granting the treasurer immunity from prosecution under such terms and
conditions as it may determine (Sec. 17, R.A. 6770) is a discretionary duty that may not be
compelled by the extraordinary writ of mandamus.
649
Q: Is the failure to file a motion for reconsideration in the lower court as a condition precedent for
the granting of the writ of certiorari or prohibition always fatal? Explain. (1996 Bar Question)
Answer: *****No, because there are exceptions, such as the following:
a. The question of jurisdiction was squarely raised before and decided by the respondent court.
b. Public interest is involved
c. Case of urgency
d. Order is patent nullity
e. Issue is purely of law
f. Deprivation of right to due process (Cochingyan vs. Cloribel 76 SCRA 361: Palea vs. PAL.
Ill SCRA 215)
650
Q: Well-settled is the rule that before a petition for certiorari under Rule 65 of the Rules of Court
may be filed a motion for reconsideration must be filed to give an opportunity to the judge to correct
an error, if any. An ommission to. comply with this procedural requirement justifies a denial of the writ
applied for. When may a motion for reconsideration be dispensed with? (1989 Bar Question)
Answer: A motion for reconsideration may be dispensed with in the following cases: 1. Where
the question of jurisdiction has been squarely raised, argued before, submitted to, and met and decided
by the respondent court; 2. Wherethequestionedorderisapatentnullity; 3. Where there is a deprivation
of the fundamental right to due process. (Cochingyan vs. Clori-bel, supra).
Another acceptable Answer: 1. Wheretheissueispurelyoflaw; 2. Wherepublicinterestisinvolved;
3. Incasesofurgency. (PALEAvs.PAL,111SCRA215).
determine what the law is, what the rights of the parties are, and undertakes to
determine these questions and adjudicate upon the rights of the parties.
b. Without jurisdiction – Is where the respondent does not have the legal
power to determine the case.
c. Excess of jurisdiction – Is where the respondent, being clothed with the
power to determine the case, oversteps his authority as determined by law.
d. Grave abuse of discretion – The abuse must be grave as where the power
is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility; or, it must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined
or to act at all in contemplation of law (Planters Products, Inc. v. Court of
Appeals, G.R. No. 10150, September 15, 1993).
e. Plain, speedy and adequate remedy – Is one which promptly relieves the
petitioner from the injurious effects of the judgment and the acts of the lower
court or agency (Regalado, 2010).
5. QUESTION OF FACT raised in an action for certiorari
*GR: Only established or admitted facts can be considered (Rubio v.
Reyes, G.R. No. 24581, May 27, 1968).
**XPN: When it is necessary to delve into factual issues in order to
resolve allegations of grave abuse of discretion as a ground for the special civil
action of certiorari and prohibition (Balba v. Peak Development, Inc., et al., G.R.
No. 148288, August 12, 2005; Regalado, 2010).
*In original actions for certiorari under Rule 65, the finding of facts of the
CA is NOT CONCLUSIVE or binding upon the SC **unlike the general
rule in appeals by certiorari under Rule 45 (Medran v. CA, G.R. No. L-1350,
March 26, 1949).
6. Remedies of appeal and certiorari NOT exclusive
*GR: Where the proper remedy is appeal, the action for certiorari will not
be entertained. **Certiorari is not a remedy for errors of judgment. Errors of
judgment are correctible by appeal; errors of jurisdiction are reviewable by
certiorari.
*XPNs: A petition for certiorari may be allowed **despite the availability
of the remedy of appeal when:
a. Appeal does not constitute a speedy and adequate remedy;
b. Orders were issued either in excess of or without jurisdiction;
c. For certain special considerations as for public policy or public welfare;
d. Order is a patent nullity;
e. Decision in the certiorari case will avoid future litigation; or
f. In criminal actions, the court rejects rebuttal evidence for the
prosecution as, in case of acquittal, there could be no remedy (Regalado, 2010).
*Another way of expressing these XPNS: Certiorari can be considered the
proper remedy despite the availability of appeal when:
(a) it is necessary to prevent irreparable damages and injury to a party;
(b) where the trial judge capriciously and whimsically exercised his
judgment;
(c) where there may be danger of a failure of justice;
(d) where an appeal would be slow, inadequate, and insufficient;
(e) where the issue raised is one purely of law;
(f) where public interest is involved; and
(g) in case of urgency.
**In short, the writ will be granted whenever necessary to prevent a
substantial wrong or to do substantial justice.
7. **Bar 2006: MODES of certiorari:
a. As a mode of appeal from the RTC or the CA to the SC: A petition for
review on certiorari under Rule 45 of the Rules of Court is a mode of appeal on
pure questions of law as a general rule from a judgment or final order or resolution
of the CA or the RTC to the SC.
b. As a special civil action (SCA) from the RTC or the CA to the SC: A
SCA for certiorari under Rule 65 of the Rules of Court is an **original action
from the RTC or the CA to the SC against any tribunal, board or officer exercising
judicial or quasi-judicial functions raising the issue of lack or excess of jurisdiction
or GADALEJ, there being no appeal or any plain, speedy and adequate remedy in
the ordinary course of law.
c. As a mode of review of the decisions of the National Labor Relations
Commission and the Constitutional Commissions: The mode of review of the
decision of the NLRC is via a special civil action for certiorari under Rule 65, but
pursuant to the hierarchy of the courts enunciated in the case of St. Martin’s
Funeral Homes v. NLRC (G.R. No. 130866, September 16, 1998), the same
should be filed in the CA. The mode of review of the decision of the
COMELEC and the Commission on Audit, as provided under Rule 64 of the
Rules of Court, is a special civil action for certiorari under Rule 65. Decisions of
the Civil Service Commission, however, are reviewable by petition for
review filed with the CA under Rule 43 of the Rules of Court.
[] Bar 2002: Jericho was declared in default in the RTC for his failure to
file an answer to a complaint for a sum of money. Judgment by default was
rendered against Jericho. Jericho filed a verified motion to lift the order of
default and to set aside the judgment. In his motion, Jericho alleged that,
immediately upon receipt of the summons, he saw the plaintiff and confronted
him with his receipt evidencing his payment and that the plaintiff assured him that
he would instruct his lawyer to withdraw the complaint. Jericho's motion was
denied because it was not accompanied by an affidavit of merit. Jericho filed
a special civil action for certiorari under Rule 65 challenging the denial order.
a. Is certiorari under Rule 65 the proper remedy? Why? No. Under ordinary
circumstances, the proper remedy of a party wrongly declared in default is either
to **appeal from the judgment by default or to file a petition for relief from
judgment (Jao Inc. v. CA, G.R. No. 93233, Dec. 19, 1995). A special civil action
for certiorari is available only when no appeal or any plain, speedy, and adequate
remedy in the ordinary course of law is available.
b. Did the trial court abuse its discretion or act without or in excess of its
jurisdiction in denying Jericho's motion to lift the order of default and to set aside
the default judgment? Why? Yes. The trial court gravely abused its discretion or
acted without or in excess of jurisdiction in denying the defendant’s motion
because it was not accompanied by a separate affidavit of merit. In his verified
motion to lift the order of default and to set aside the judgment, the defendant
alleged that immediately upon receipt of the summons, he saw the plaintiff and
confronted him with his receipt showing payment and that the plaintiff assured
him that he would instruct his lawyer to withdraw the complaint. Since the
**good defense of the defendant was already incorporated in the verified
motion, there was no need for a separate affidavit of merit (Mago v. CA, G.R.
No. 115624, February 25, 1999). TOM: and so, why not allow him to file a R65
petition for certiorari? There’s GADALEJ…
8. Offended Party in a Criminal Case: ******An offended party in a criminal case
has sufficient personality to file a special civil action for certiorari, in proper
cases, even without the imprimatur of the State. In so doing, the complaint
should not bring the action in the name of the People of the Philippines. The
action may be prosecuted in the name of the complainant (Perez v. Hagonoy
Rural Bank, Inc., G.R. No. 126210, March 9, 2000).651
651
Q: Jaime was convicted for murder by the Regional Trial Court of Davao City in a decision
promulgated on September 30, 2015. On October 5, 2015, Jaime filed a Motion for New Trial on the
ground that errors of law and irregularities prejudicial to his rights were committed during his trial. On
October 7, 2015, the private prosecutor, with the conformity of the public prosecutor, filed an
Opposition to Jaime's motion. On October 9, 2015, the court granted Jaime's motion. On October
12, 2015, the public prosecutor filed a motion for reconsideration. The court issued an Order
dated October 16, 2015 denying the public prosecutor's motion for reconsideration. The public
prosecutor received his copy of the order of denial on October 20, 2015 while the private
prosecutor received his copy on October 26, 2015. (2015)
a. What is the remedy available to the prosecution from the court's order granting Jaime's
motion for new trial? A: The remedy of the prosecution is to file a petition for certiorari under Rule
65 of the Rules of Court, because the denial of a motion for reconsideration is merely an
interlocutory order and there is no plain, speedy and adequate remedy under the course of law. Be
that as it may, it may be argued that appeal is the appropriate remedy from an order denying a
motion for reconsideration of an order granting a motion for new trial because an order denying a
motion for reconsideration was already removed in the enumeration of matters that cannot be a
subject of an appeal under Section 1, Rule 41 of the Rules of Court.
b. In what court and within what period should a remedy be availed of? A: Following the
principle of judicial hierarchy, the petition for certiorari should be filed before the Court of
Appeals within sixty (60) days from receipt of the copy of the order of denial of the public
prosecutor’s motion for reconsideration, or on October 20, 2015.
c. Who should pursue the remedy? A: The Office of the Solicitor General (OSG) should
pursue the remedy. In criminal proceedings on appeal in the Court of Appeals or in the Supreme
Court, the authority to represent the people is vested solely in the Solicitor General. [TOM: the
offended party may also file a Rule 65 petition]. Under Presidential decree No. 4478 among the specific
8. Latest update on ******Certiorari JN of the Supreme Court vs.652 Rule 65

a. R65: Under Section, it only refers to those exercising judicial or quasi-
judicial functions;
b. SC: more extensive [Araullo vs. Aquino 2014]: according to the
expanded concept of judicial power under Section 1, Article VIII of the
Constitution, it extends to any branch or instrumentality of government.
c. SCA for certiorari under Rule 65 is an extraordinary remedy; its use is
available only and restrictively in **truly exceptional cases wherein the action of
an inferior court, board or officer performing judicial or quasi-judicial acts is
challenged for being wholly void on grounds of jurisdiction. The sole office of
the writ of certiorari is the correction of errors of jurisdiction including the
commission of grave abuse of discretion amounting to lack or excess of
jurisdiction. It does not include correction of factual findings of an
administrative body.653
powers and functions of the OSG is to “represent the government in the Supreme Court and the
Court of Appeals in all criminal proceedings.” This provision has been carried over to the Revised
Administrative Code particularly in Book IV, Title III, Chapter 12 thereof. Without doubt, the OSG is
the appellate counsel of the People of the Philippines in all criminal cases (Cariño v. de Castro, G.R.
No. 176084, April 30, 2008).
652
Q: Compare the certiorari jurisdiction of the Supreme Court under the Constitution with that
under Rule 65 of the Rules of Civil Procedure. (4%) (2008 Bar Question) SUGGESTED ANSWER:
Under the Constitution, the certiorari jurisdiction of the Supreme Court provides for its
expanded jurisdiction power of judicial power over [governs] all branches or instrumentalities of
the government where is a grave abuse of discretion amounting to lack or excess of jurisdiction, as
[agencies and instrumentalities] provided in Section 1, second par., Art. VIII of the 1987 Constitution.
The petition is filed under Rule 45 of the Rules of Court, and [The writ is directed not only to
tribunal, board or officer exercising judicial or quasi-judicial functions. And] the period fixed for
availing of the remedy is within 30 days from receipt of the copy of the decision, order or ruling in
question (Sec. 7, Art. IX). [TOM: In Araullo vs. Aquino (2014), the court said it’s Rule 65: What are the
remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government may be determined under the Constitution? The
present Rules of Court uses two special civil actions for determining and correcting grave abuse of
discretion amounting to lack or excess of jurisdiction. These are the special civil actions for certiorari
and prohibition, and both are governed by Rule 65. A similar remedy of certiorari exists under Rule
64, but the remedy is expressly applicable only to the judgments and final orders or resolutions of the
Commission on Elections and the Commission on Audit.]
But under Rule 65 of the Rules of Court, the certiorari jurisdiction of the Supreme Court is
limited to acts done without or in excess of jurisdiction or grave abuse of discretion amounting
to lack or excess of jurisdiction, by a tribunal, board or officer exercising judicial or quasi-
judicial functions only. And the period fixed for availing of the remedy is not later than 60 days
from notice of judgment; order or resolution in question (Secs. 1 and 4, Rule 65, Rules of Court).
653
It does **not include correction of public respondent NLRC's evaluation of the evidence and
factual findings based thereon… The question of whether or not petitioner charged private
respondents placement fees in excess of that allowed by law is clearly a question of fact which is for
public respondent POEA, as a trier of facts, to determine… the settled rule is that the factual
findings of quasi-judicial agencies like the POEA, which have acquired expertise because their
jurisdiction is confined to specific matters, are generally accorded not only respect, but at times
even finality if such findings are supported by substantial evidence [Philsa vs. CA].
9. Two exceptional reasons for a petition for certiorari to be granted or given due
course:
(a) the broader interest of justice demanded that certiorari be given due
course to avoid the undeserved grossly unjust result that would befall the
petitioners otherwise; and
(b) the order of the RTC granting the motion to dismiss on ground of lack of
jurisdiction over the subject matter evidently constituted grave abuse of
discretion amounting to excess of jurisdiction.
PROHIBITION
1. ******It is a remedy to prevent inferior courts, corporations, boards or persons
from usurping or exercising a jurisdiction or power which they have not been
vested by law.654
2. It is commenced by a verified petition accompanied by a certified true copy
of the judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn certification of non-
forum shopping (Sec. 2, Rule 65).
3. When issued
a. ****GR: Prohibition does not ordinarily lie to restrain an act which is
already fait accompli.
b. **XPN: It will lie to prevent the creation of a new province by those
in the corridors of power who could avoid judicial intervention and review by
merely speedily and stealthily completing the commission of such illegality
(Tan v. COMELEC, G.R. No. 73155, July 11, 1986).
**NB: Prohibition, and not mandamus, is the remedy where a motion to
dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R. No. L-2422,
4. EXHAUSTION of administrative remedy **necessary in order for an
action for prohibition: In order for prohibition to lie against an executive
officer, the petitioner must first exhaust all administrative remedies, as prohibition
is available only when there are no other plain, speedy and adequate
remedies in the ordinary course of law (Cabedo, et al. v. Dir. of Lands, et al.,
G..R. No. L-12777, May 23, 1961).
5. Prohibition v. Injunction
654
Q: A files a Complaint against B for recovery of title and possession of land situated in Makati
with the RTC of Pasig. B files a Motion to Dismiss for improper venue. The RTC Pasig Judge denies
B's Motion to Dismiss, which obviously was incorrect. Alleging that the RTC Judge "unlawfully
neglected the performance of an act which the law specifically enjoins as a duty resulting from an
office", B files a Petition for Mandamus against the judge. Will Mandamus lie? Reasons. (2012 BAR)
A: NO, mandamus will not lie. The proper remedy is a petition for prohibition (Serena v.
Sandiganbayan G.R. No. 162059, January 22, 2008). *****The dismissal of the case based on improper
venue is not a ministerial duty. Mandamus does not lie to compel the performance of a
discretionary duty (Nilo Paloma v. Danilo Mora, G.R. No. 157783, September 23, 2005).
Prohibition Injunction
Directed to court itself, commanding it to cease Directed only to the party litigants, without
from the exercise of a jurisdiction to which it has no in any manner interfering with the court (De
legal claim (Esquivel v. Ombudsman 2002). Los Angeles v. CA 1974)
MANDAMUS
1. It is a writ issued in the name of the State, to an inferior tribunal,
corporation, board or person, COMMANDING THE PERFORMANCE of
an act which the law enjoins as a duty resulting from an office, trust or station.
NB: Mandamus is proper to enforce one’s constitutional rights.655
2. It is commenced by a verified petition accompanied by a sworn certification
of non-forum shopping (Sec. 3, Rule 65).
3. GROUNDS for mandamus
a. When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station; or
b. When any tribunal, corporation, board, officer or person unlawfully
excludes another from the use and enjoyment of a right or office to which the
other is entitled (Sec. 3, Rule 65).
*****Generally, mandamus will not lie to enforce PURELY PRIVATE
contract656 rights, and will not lie against an individual unless some obligation
in the NATURE OF A PUBLIC OR QUASI-PUBLIC duty is imposed. To
preserve its prerogative character, MANDAMUS IS NOT USED FOR THE REDRESS
OF PRIVATE WRONGS, but only in matters relating to the public (Uy Kiao Eng
v. Nixon Lee, G.R. No. 176831, January 15, 2010).657
655
[] Bar 2007: Roldan was charged with illegal possession of shabu before the RTC. Although bail
was allowable under his indictment, he could not afford to post bail, and so he remained in detention
at the City Jail. For various reasons, the arraignment of Roldan was postponed 19 times over a
period of 2 years. Twice during that period, Roldan’s counsel filed motions to dismiss, invoking the right of the
accused to a speedy trial. Both motions were denied by the RTC. Can Roldan file a petition for
mandamus? A: Yes. Roldan can file a petition for mandamus, invoking the RIGHT TO A
SPEEDY TRIAL. ******Mandamus is a proper recourse for citizens who seek to enforce a public
right and to compel the performance of a public duty, most especially when the public right involved is
mandated by the Constitution. Besides, it has long been established in this jurisdiction that the writ of
mandamus is available to the accused to compel a dismissal of the case. Here, the arraignment of
Roldan was postponed 19 times over a period of 2 years. Hence, the petition for mandamus is proper
in this case (Symaco v. Aquino, G.R. No. L-14535, January 30, 1960).
656
Which of the following is NOT REQUIRED in a petition for mandamus? (2011 BAR)
(A) The act to be performed is not discretionary.
(B) There is no other adequate remedy in the ordinary course of law.
(C) The respondent neglects to perform a clear duty under a contract.
(D) The petitioner has a clear legal right to the act demanded.
657
[] Bar 2001: Albert was appointed Election Registrar of the Municipality of Sevilla supposedly to
replace the respondent Election Registrar Richard who was transferred to another municipality
4. EXHAUSTION of administrative remedies

*GR: Mandamus will not issue when administrative remedies are still available.
**XPNs:
a. If the party is in estoppel (Vda. de Tan v. Veterans Backpay
Commission, G.R. No. L-12944, March 30, 1959);
b. Only questions of law are raised (Madrigal v. Lecaroz, G.R. No. L-
46218, October 23, 1990).
5. Discretionary duty
*GR: Mandamus is only applicable to a ministerial duty. 658However,
mandamus can be used to the extent of requiring the performance of a
****DISCRETIONARY659 DUTY TO ACT but NOT TO REQUIRE
without his consent and who refused to accept his aforesaid transfer, as in fact he continued to
occupy his aforesaid position and exercise his functions thereto. Albert then filed a petition for
mandamus against Richard but the trial court dismissed Albert's petition contending that quo
warranto is the proper remedy. Is the court correct in its ruling? Why?
A: Yes. Mandamus will not lie. This remedy **applies only where petitioner’s right is
founded clearly in law, not when it is doubtful. Richard was transferred without his consent. It is
tantamount to removal without cause and is contrary to fundamental guarantee on non-
removal except for cause. Considering that Richard continued to occupy the position and exercise
his functions therein, the proper remedy is quo warranto and not mandamus.
658
Q: After reviewing the record of a preliminary investigation of a homicide case, the Secretary of
Justice reversed the resolution of the Provincial Prosecutor and directed the latter to move for the
dismissal of the Information which had been filed in the Regional Trial Court of Pasig. The Provincial
Prosecutor thus filed such motion. (1991 Bar Question)
(a) May the RTC judge refuse to order the dismissal of the criminal case and insist on the
arraignment and trial of the accused? Answer: Yes. Upon the filing of the information, the court
acquires jurisdiction over the criminal action. The subsequent filing of a motion for dismissal, even
upon the direction of the Secretary of Justice, is addressed for the consideration of the court, and the
court in the exercise of its discretion may grant the motion or deny it and require the arraignment and
trial of the accused to proceed. (Crespo v. Mogul, 151 SCRA 462).
(b) If the judge refuses to grant the Provincial Prosecutor's motion to dismiss, may a special
civil action for mandamus lie to compel the Judge to grant the motion? Alternative Answer: No,
mandamus will not lie because the court has discretion whether to grant or deny the motion.
659
[] Bar 2006: Fotokina filed with the RTC a petition for mandamus to compel the COMELEC to
implement a contract it had with the former regarding the automation of the elections. The Office
of the Solicitor General (OSG), representing COMELEC Chairman Go, opposed the petition on the
ground that mandamus does not lie to enforce contractual obligations. During the proceedings,
the majority Commissioners filed a manifestation that Chairman Go was not authorized by the
COMELEC En Banc to oppose the petition.
a. May the OSG represent Chairman Go before the RTC notwithstanding that his position is
contrary to that of the majority? Yes, the OSG can represent Chairman Go before the RTC. The
OSG is an independent office. Its hands are not shackled to the cause of its client agency. In the
discharge of its tasks, the *****primordial concern of the OSG is to see to it that the best interest of
the government is upheld.
b. Is a petition for mandamus an appropriate remedy to enforce contractual obligations?
NO. *****COMELEC cannot be compelled by a writ of mandamus to discharge a duty that involves
the exercise of judgment and discretion, especially where disbursement of public funds is
concerned (COMELEC v. Quijano-Padilla, G.R. No. 151992, September 18, 2002).
performance of such duty in a PARTICULAR manner.660

*XPNs:
a. There has been gross abuse of discretion;
b. Manifest injustice; or
c. Palpable excess of authority (Kant Wong v. PCGG, G.R. No. 79484,
December 7, 1987).
6. Awards of damages in Mandamus Proceedings: The CA, in resolving a petition
for mandamus, is **authorized to award civil damages in the same petition
(Vital-Gozon v. CA, G.R. No. 101428, August 3, 1992).
7. Mandamus vs. Injunction*****
Mandamus Injunction
Remedial; To perform positive legal Preventive; To prevent an act to maintain status

duty. It is a special civil action quo between parties. It is an ordinary civil action
To set in motion and to compel action To restrain motion or to enforce inaction
(active); Directed against a tribunal, (conservative); directed against a litigant
corporation board, or officer
MTD – Rules 16 and 17 Additional ground for MTD–Sec. 6, Rule 58
[] Bar area: A judge may be compelled to write his decision with a

mandamus.661
8. Remedy of Public respondent if no temporary restraining order or writ of
preliminary injunction was issued by the court hearing the petition for certiorari,
prohibition or mandamus: The public respondent shall proceed with the principal
case within 10 days from the filing of a petition for certiorari with a higher
court or tribunal, absent a temporary restraining order or a preliminary injunction,
or upon its expiration. Failure of the public respondent to proceed with the
principal case may be a ground for an administrative charge (Sec. 7, Rule 65,
as amended by A.M. No. 07-7-12-SC).
660
[] Q: Can a mayor be compelled by mandamus to issue a business permit?NO. A mayor cannot be
compelled by mandamus to issue a business permit since the **exercise of the same is delegated
police power hence, DISCRETIONARY IN NATURE. Section 444(b)(3)(iv) of the Local
Government Code of 1991, is a manifestation of the delegated police power of a municipal
corporation. Necessarily, the exercise thereof cannot be deemed ministerial. ******As to the question
of whether the power is validly exercised, the matter is within the province of a writ of certiorari, but
certainly, not of mandamus (Rimando v. Naguilian Emission Testing Center, Inc., G.R. No. 198860,
July 23, 2012).
661
Choose the most accurate phrase to complete the statement: Mandamus will lie -- - (2012 BAR)
Page 219 of 466 REMEDIAL LAW
a. to compel a judge to consolidate trial of two cases pending before different branches of the court.
b. to compel a judge to reduce his decision in writing.
c. to direct a probate court to appoint a particular person as regular administrator.
d. tocompelajudgetograntordenyanapplicationforpreliminaryinjunction.
d) Injunctive relief
1. When proper: The court in which the petition is filed may issue orders
expediting the proceedings, and it may also grant a TRO or a writ of preliminary
injunction for the preservation of the rights of the parties pending such
proceedings. (Sec. 7, Rule 65) The public respondent shall proceed with the
principal case within 10 days from the filing of a petition for certiorari with a
higher court or tribunal, absent a TRO or a Writ of Preliminary Injunction, or
upon its expiration (AM 07-7-12-SC, December 12, 2007).
[] Bar 2003: In an action for specific performance in the MTC, defendant Sarah
filed a motion to dismiss the action based on lack of jurisdiction over the subject matter. Sarah’s
motion to dismiss was denied. Sarah filed a petition for certiorari with the RTC. Vince
then filed with the MTC a motion to declare Sarah in default. The motion was opposed
by Sarah on the ground that his petition for certiorari was still pending. Resolve the
motion to declare the defendant in default. A: The court can declare Sarah in
default because she did not obtain a writ of preliminary injunction or a
temporary restraining order from the RTC prohibiting the judge from
proceeding in the case during the pendency of the petition for certiorari (Diaz v.
Diaz, G.R. No. 135885, April 28, 2000).
e) Exceptions to filing of motion for reconsideration before filing petition

1. GR: MR is a condition sine qua non for filing a petition for certiorari under
Rule 65. Its purpose is to grant an opportunity for the court to correct any
actual or perceived error attributed to it by re-examination of the legal and
factual circumstances of the case. NB: Petition for certiorari, mandamus and
prohibition will not be entertained unless the public respondent has been
given first the opportunity through a motion for reconsideration to correct
the error being imputed to him.
*NB: It is intended to afford the public respondent an opportunity to
correct any actual or fancied error attributed to it by way of re-examination of the
legal and factual aspects of the case (Chris Garment Corporation v. Sto. Tomas,
G.R. No. 167426, January 12, 2009).
2. XPNs—A prior motion for reconsideration is not necessary to entertain a
petition for certiorari where:
a. Where the order is a patent nullity, as where the court a quo has no
jurisdiction;
b. Where the questions raised in the certiorari proceedings have been duly
raised and passed upon by the lower court, or are the same as those raised and
passed upon in the lower court;
c. Where there is an urgent necessity for the resolution of the question and
any further delay would prejudice the interests of the Government or of the
petitioner
d. or the subject matter of the action is perishable;
e. Where, under the circumstances, a motion for reconsideration would be
useless;
f. Where petitioner was deprived of due process and there is extreme
urgency for relief;
g. Where, in a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial court is improbable;
h. Where the proceedings in the lower court are a nullity for lack of due
process;
i. Where the proceeding were ex parte or in which the petitioner had no
opportunity to object; and
j. Where the issue raised is one purely of law or where public interest is
involved (Rep. of the Phils. v. Bayao, G.R. No. 179492, June 5, 2013).
f) Reliefs petitioner is entitled to

1. Annulment;
2. Modification of the judgment, order, or resolution or proceeding subject of
the petition;
3. It may also include such other Incidental reliefs as law and justice may require
(Sec. 1, Rule 65);
4. The court may also award damages in its judgment and the execution of the
award for damages or costs shall follow the procedure in Sec. 1 of Rule 39 (Sec. 9,
Rule 65).
g) Actions/omissions of MTC/RTC in election cases

1. In **election cases involving an act or an omission of a municipal or a regional
trial court, the petition shall be filed exclusively with the Commission on
Elections, in aid of its appellate jurisdiction (Sec.4, Rule 65, as amended by AM
No. 07-7-12-SC, December 12, 2007).
h) When and where to file petition

1. Where to file
a. Supreme Court- Subject to the doctrine of hierarchy of courts and only
when compelling reasons exist for not filing the same with the lower courts.
b. Court of Appeals only- If the petition involves an act or an omission of a
quasi-judicial agency, unless otherwise provided by law or rules.
c. Court of Appeals and Sandiganbayan- Whether or not in aid of
appellate jurisdiction.
d. Regional Trial Court- If the petition relates to an act or an omission of an
MTC, corporation, board, officer or person.
e. COMELEC- In election cases involving an act or an omission of an MTC
or RTC.
**If the petition relates to an act or an omission of a municipal trial court or
of a corporation, a board, an officer or a person, it shall be filed with the RTC
exercising jurisdiction over the territorial area as defined by the Supreme Court. It
may also be filed with the Court of Appeals or with the Sandiganbayan, whether
or not the same is in aid of the courts appellate jurisdiction. If the petition
involves an act or an omission of a quasi-judicial agency, unless otherwise
provided by law or these rules, the petition shall be filed with and be cognizable
only by the Court of Appeals (Sec. 4, Rule 65 as amended by A.M. No. 07-7-12-
SC).
*By virtue of the amendment introduced by A.M. No. 07-7-12-SC to Sec. 4,
Rule 65, a petition for certiorari, prohibition or mandamus may not be filed
directly with the SC anymore.
2. When to file: The petition shall be filed **not later than 60 days from notice
of the judgment, order or resolution. In case a motion for reconsideration or new trial is
timely filed, whether such motion is required or not, the petition shall be filed not
later than 60 days counted from the notice of the denial of the motion (Sec. 4.
Rule 65, as amended by A.M. No. 07-7-12-SC).
*Under Sec. 4, Rule 65 of the Rules of Court and as applied in Laguna Metts
Corporation, the general rule is that a petition for certiorari must be filed within
60 days from notice of the judgment, order or resolution sought to be assailed.
Under exceptional circumstances, however, and subject to the sound discretion
of the court, said **period may be extended pursuant to Domdom, Labao,
abd Mid-Islands Power cases. The exceptions are:
a. To serve substantial justice;
b. Safeguard strong public interest (Republic v. St. Vincent de Paul
Colleges, Inc., G.R. No. 192908, August 22, 2012).
5. Effects of filing a petition for certiorari, prohibition or mandamus to the
principal case—It does not:
a. Interrupt the course of the principal action;
b. Affect the running of the reglementary periods involved in the
proceedings (Fuentes v. Sandiganbayan, G.R. No. 164664, July 20, 2006);
c. Stay the execution of judgment, unless a TRO or writ of preliminary
injunction has been issued.
6. Acquisition of jurisdiction over the person of the respondent in original actions
for certiorari, prohibition and mandamus
a. If the action is filed with the RTC – Follow the rules on ordinary civil
actions. Jurisdiction is acquired by the service of summons to the respondent or
by his voluntary appearance in court.
b. If the action is filed with the CA or the SC – The court acquires
jurisdiction over the respondents with the service on them of its orders
indicating its initial action on the petition or by voluntary submission to such
jurisdiction
i) Effects of filing of an unmeritorious petition

1. Effect of a Petition for Mandamus which is patently without merit,
prosecuted manifestly for delay, or raises questions which are too unsubstantial
to require consideration: The Court may dismiss the petition. In such event, the
court may award in favor of the respondent *****TREBLE COSTS
SOLIDARILY against the petitioner and counsel, in addition to subjecting
counsel to administrative sanctions under Rules 139 and 139-B.
2. The Court may impose **motu proprio, based on res ipsa loquitur, other
disciplinary sanctions or measures on erring lawyers for patently dilatory and
unmeritorious petitions for certiorari (Sec. 8, Rule 65, as amended by A.M. No.
07-7-12-SC).
———————————————————————————————
3.19.8. Quo warranto [Rule 66]
a) Distinguish from quo warranto in the Omnibus Election Code***** 550

b) When government may commence an action against individuals 550
c) When individual may commence an action 551
d) Judgment in quo warranto action 551
e) Rights of a person adjudged entitled to public office 553
———————————————————————————————
PRELIMINARIES ON QUO WARRANTO

1. It is a proceeding or writ issued by the court to ****determine the right to use
an office, position or franchise and to oust the person holding or exercising
such office, position or franchise if his right is unfounded or if a person
performed acts considered as grounds for forfeiture of said exercise of position,
office or franchise. Latin: “BY WHAT AUTHORITY.”
2. It is commenced by a verified petition brought in the name of the Republic
of the Philippines or in the name of the person claiming to be entitled to a
public office or position usurped or unlawfully held or exercised by another (Sec. 1,
Rule 66).
3. *****Purpose of a QW proceeding: to get back the office from a USURPER
and the question the right of a corporate entity to exist. Hence, “by what right
or authority” do you get back to office or do you exist?
a) Distinguish from quo warranto in the Omnibus Election Code*****

Quo warranto under Rule 66 Quo warranto in Electoral Proceedings
Issue is legality of the occupancy of the office Issue is eligibility of the person elected (Riano,
by virtue of a legal appointment 2012).
Grounds: usurpation, forfeiture, or illegal Grounds: ineligibility or disqualification to
association (Sec. 1, Rule 66) hold the office (Sec. 253, Omnibus Election
Code)
Presupposes that the respondent is already Petition must be filed *****within 10 days from
actually holding office and action must be the proclamation of the candidate (Riano, 2012).
commenced **within 1 year from cause of
ouster or from the time the right of petitioner
to hold office arose.
Petitioner is person entitled to office Petitioner may be any voter even if he is not
entitled to the office
Person adjudged entitled to the office may bring Actual or compensatory damages are
a separate action against the respondent to recoverable in quo warranto proceedings under
recover damage. (Sec 11, Rule 66). the Omnibus Election Code.
Filed at the RTC, CA or SC, although at the RTC With Comelec for regional officers or
first following the D. of hierarchy of courts congressmen; with RTC for municipal officers;
with MTC for barangay officers.
**If the dispute is as to the counting of votes or on matters connected with the
conduct of the election, quo warranto is not the proper remedy but an election
protest (Cesar v. Garrido, G.R. No. 30705, March 25, 1929).
b) When government may commence an action against individuals

1. An action for the usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the Republic of
the Philippines against:
a. A person who usurps, intrudes into, or unlawfully holds or exercises
a public office, position or franchise;
b. A public officer who does or suffers an act which, by the provision of
law, constitutes a ground for the forfeiture of his office; and
c. An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act (de facto corporation) (Sec.
1, Rule 66).
2. Actions of quo warranto against corporations now fall under the
**jurisdiction of the RTC acting as Special Commercial Courts (Sec. 5.2,
Securities Regulations Code). Quo warranto will only lie against DE FACTO
corporations.
c) When individual may commence an action

1. A person claiming to be entitled to a public office or position usurped or
unlawfully held or exercised by another may bring an action therefor in his own
name (Sec. 5, Rule 66).
Such person may maintain action without the intervention of the
Solicitor General and without need for any leave of court. He must show that
he has a clear right to the office allegedly being held by another (Cuevas v. Bacal,
347 SCRA 338). NB: The Solicitor General or public prosecutor may commence
the action at the instance of another person. In this case, leave of court is
necessary (Sec. 3, Rule 66).
2. Who may commence*****
a. Solicitor General;
b. Public Prosecutor;
c. Individual claiming to be entitled to the office or position usurped or
unlawfully held or exercised by another (Sec. 5 Rule 66)
*By analogy with provisions of Sec. 5, it has been held that a **public
utility may bring a quo warranto action against another public utility which
has usurped the rights of the former granted under franchise (Cui v. Cui, 60
Phil. 57; Regalado, 2010).
3. CLASSIFICATIONS of Quo warranto Proceedings

a. Mandatory – brought by the Solicitor General or Public prosecutor
when:
i. Directed by the President;
ii. Upon complaint or when he has reason to believe that the cases
for quo warranto can be established by proof (Sec. 2, Rule 66)
b. Discretionary – brought by the Solicitor General or a public prosecutor at
the request and upon the relation of another person, provided there must be:
i. Leave of court;
ii. At the request and upon the relation of another person;
iii. Indemnity bond (Sec. 3, Rule 66)
4. Court which has jurisdiction: It can be brought only in the *****SC,CA, or in
RTC exercising jurisdiction over the territorial area where the respondent or any
of the respondents resides; *****But file it first in the RTC under the Doctrine of
Hierarchy of Courts.
**The petition may be brought in the SB in certain cases but when in aid
of its appellate jurisdiction (PD 1606, Sec. 4, as amended by R.A No. 8249;
Riano, 2009).
******When the Solicitor General commences the action, it may be
brought in a RTC in the City of Manila, in the CA, or in the SC (Sec. 7, Rule
66).662
5. Contents of a Petition for Quo warranto—The petition shall set forth the
following:**
a. The name of the person who claim to be entitled thereto;
b. If any, with an averment of his right to the same and that the
respondent is unlawfully in possession thereof;
c. All persons who claim to be entitled to the public office, position or
franchise may be made parties, and their respective rights to such public office,
position or franchise determined, in the same action (Sec. 6, Rule 66).
6. Period within which a person ousted from office must file a petition for quo
warranto
*****GR: An action for quo warranto must be commenced within 1 year
after the cause of such ouster, or the right of the petitioner to hold such office
or position, arose (Sec. 11, Rule 66). The failure to institute the same within the
reglementary period constitutes more than a sufficient basis for its dismissal
662
[] Bar 2001: A group of businessmen formed an association in Cebu City calling itself Cars Co. to
distribute/sell cars in said city. It did not incorporate itself under the law nor did it have any
government permit or license to conduct its business as such. The Solicitor General filed before a RTC
in Manila a verified petition for quo warranto questioning and seeking to stop the operations of Cars
Co. The latter filed a motion to dismiss the petition on the ground of improper venue by claiming that its main office
and operations are in Cebu City and not in Manila. Is the contention of Cars Co. correct? Why? A: No. As
expressly provided in the Rules, *****when the Solicitor General commences the action for quo
warranto, it may be brought in a RTC in the City of Manila, as in this case, in the Court of Appeals
or in the Supreme Court (Sec. 7, Rule 66).
(Alejo v. Marquez, G.R. No. L-40575, September 28, 1987), since it is **not
proper that the title to a public office be subjected to continued uncertainty
(Villegas v. De la Cruz, G.R. No. L-23752, December 31, 1965).
*XPN: If the failure to file the action can be **attributed to the acts of a
responsible government officer and not of the dismissed employee (Conchita
Romualdez-Yap v. CSC, et al., G.R. No. 104226, August 12, 1993).
*NB: The periods within which quo warranto action should be brought are
a **condition precedent to the existence of a cause of action.
**The pendency of administrative remedies does not operate to
suspend the period of one year within which a petition for quo warranto should
be filed. While it may be desirable that administrative remedies be first resorted to,
no one is compelled or bound to do so, and as said remedies neither are pre-
requisite to nor bar the institution of quo warranto proceedings, they should
not be allowed to suspend the period of one year. **Public interest requires
that the right to a public office should be determined as speedily as
practicable (Torres v. Quintos, G.R. No. L-3304, April 5, 1951).
The court may reduce the period provided by these Rules for filing
pleadings and for all other proceedings in the action in order to secure the most
expeditious determination of the matters involved therein consistent with the
rights of the parties. Such action may be given precedence over any other civil
matter pending in the court (Sec. 8, Rule 66).
7. Recovery of DAMAGES against the usurper of office allowed: If the petitioner
is adjudged to be entitled to the office, he may sue for damages against the
alleged usurper **within 1 year from entry of judgment establishing his right to
the office in question (Sec. 11, Rule 66).
d) Judgment in quo warranto action

1. When the respondent is found guilty of usurping, intruding into, or unlawfully
holding or exercising a public office, position or franchise, judgment shall be
rendered that such respondent be ousted and altogether excluded therefrom,
and that the petitioner or relator, as the case may be, recover his costs. Such
further judgment may be rendered determining the respective rights in and to the
public office, position or franchise of the parties to the action as justice requires
(Sec. 9, Rule 66).
e) Rights of a person adjudged entitled to public office

1. If judgment be rendered in favor of the person averred in the complaint to be
entitled to the public office, he may, after taking the oath of office and executing
any official bond required by law:
a. Take upon himself the execution of the office;
b. May immediately thereafter demand all the books and papers in the
respondent’s custody or control appertaining to the office to which the judgment
relates; and
c. May bring an action against the respondent to recover damages

sustained by such persons by reason of usurpation (Sec. 10, Rule 66).
2. A quo warranto proceeding is ******one of the instances where exhaustion of
administrative remedies is not required (Celestial v. Cachopero, G.R. No.
142595, October 15, 2003).
———————————————————————————————
3.19.9. Expropriation [Rule 67]
a) Matters to allege in complaint for expropriation 555

b) Two stages in every action for expropriation***** 556
c) When plaintiff can immediately enter into possession of the real property, in relation to R.A. No.
8974 557
d) New system of immediate payment of initial just compensation 557
e) Defenses and objections 558
f) Order of expropriation 560
g) Ascertainment of just compensation 560
h) Appointment of commissioners; commissioner’s report; court action upon commissioner’s report
561
i) Rights of plaintiff upon judgment and payment 563
j) Effect of recording of judgment 565
———————————————————————————————
PRELIMINARIES ON EXPROPRIATION
1. Power of eminent domain: It is the right of the State to acquire private
property for public use upon the payment of just compensation.
*The scope of the power of eminent domain as exercised by the
Congress is **PLENARY and is as BROAD as the police power. Such
power however, may also be delegated to local political subdivisions and
public utilities (Riano, 2012).
*****When the court decides in favor of the government, it does not mean
that the latter becomes the owner for all purposes (unlike in ordinary sale “in fee
simple”, i.e., for all purposes). The property must be devoted for public purpose,
hence, *****if it abandons the said purpose, the former owner can file an
ACTION FOR RECONVEYANCE, although the proper term is ACTION
FOR REVERSION. Hence, expropriation is always CONDITIONAL.—it
depends upon the use of the property expropriated.
2. EXPROPRIATION: It is the procedure for enforcing the right of eminent
domain. Expropriation is proper only when:
a. The owner refuses to sell; or
b. If the latter agrees, agreement as to the price cannot be reached.
**It is the ACTUAL filing of complaint for expropriation which binds
the land, and NOT A MERE NOTICE of the intent to expropriate. However,
the **owner of the land may STILL DISPOSE of said property, despite the
filing of the action, as the grantee would merely be substituted in his place and
holds the land subject to the results of the action (Regalado, 2010).
3. By reason of expediency, counterclaim, cross-claim or third-party complaint shall be
alleged or allowed in the answer or any subsequent pleading.

4. REQUISITES of the Exercise of a Valid Expropriation (DCP)*****
a. Observance of Due process (of law);
b. Payment of just compensation; and
c. Taking must be for public use.
5. Properties that are subject to expropriation: ****All properties can be
expropriated, except money and choses in action.
*Choses in action – A right to personal things of which the owner has
not the possession, but merely a right of action for their possession (Black’s
Law, 2004).
6. SCOPE of expropriation: Expropriation is **not limited to the acquisition
of real property with a corresponding transfer of title or possession. The
RIGHT-OF-WAY EASEMENT resulting in a restriction or limitation on
property rights over the land traversed by transmission lines also falls within
the ambit of the term "expropriation (National Power Corporation v. Vda. De
Capin, G.R. No. 175176, October 17, 2008).”
7. COURT that has jurisdiction: It is filed with RTC because it is an action
*****incapable of pecuniary estimation regardless of the value of the subject property,
also because it involves a right of the government.
*****[Brgy. Sn Roque vs. Pastor]. The power of eminent domain (PED) of
the national government is INHERENT, while that of the local government is
only DELEGATED. Hence, Fr. Bernas would say that the property for LGUs is
Power of Inferior Domain. Hence, when LGUs expropriate, the same shall be
supported by law. It has to be authorized ****by an ordinance, not a mere
resolution authorizing the local chief executive. The deposit is 15% of the fair
market value of the property [Sec. 19 LGC].
a) Matters to allege in complaint for expropriation

*The right of eminent domain shall be exercised by the filing of a verified
complaint, which shall:
1. State with certainty the right and purpose of expropriation;
2. Describe the real or personal property sought to be expropriated;
3. Join as defendants all persons owning or claiming to own, or occupying, any
part thereof or interest therein, showing, so far as practicable, the separate interest
of each defendant;
4. If the title to any property sought to be expropriated appears to be in the
Republic of the Philippines, although occupied by private individuals, or if the title
is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or
certainty specify who are the real owners, averment to that effect shall be made in
the complaint (Sec. 1, Rule 67).
**Expropriation by the local government requires an authorizing ordinance before
it may be accomplished. Under Rule 67 and RA 8974 there is no need for
legislative authorization before the Government may proceed with a particular exercise of
eminent domain (Riano, 2012).
b) Two stages in every action for expropriation*****

1. Determination of the AUTHORITY of the plaintiff to expropriate – This
determination includes an **inquiry into the propriety of the expropriation: its
NECESSITY and the PUBLIC PURPOSE.
*The first stage will end in the issuance of an order of expropriation if
the court finds for plaintiff or in dismissal of the complaint if it finds otherwise.
2. Determination of JUST COMPENSATION through the court-appointed
commissioners (Riano, 2007).
*****Failure to file an Answer is not a bar to one’s participation in the
second stage of the proceedings.
[] Q: The City of Iloilo (petitioner) represented by Mayor Treñas filed a
complaint for eminent domain against Javellana seeking to expropriate two
parcels of land. Mayor Treñas filed a motion for issuance of writ of possession
alleging that it had deposited 10% of the amount of compensation which the
court issued. A writ of possession was subsequently issued, and petitioner was
able to take physical possession of the properties. After which, the
expropriation proceedings remained dormant. 16 years later, Javellana filed an
ex parte motion/manifestation, where he alleged that when he sought to
withdraw the money, he discovered that no deposit was made. Thus,
Javellana filed a complaint for recovery of possession, fixing and recovery of
rental and damages. The City of Iloilo argues that Javellana could no longer
bring an action for recovery since the subject property was already taken for public
use. The trial court in its orders and amended orders maintained that the assailed
orders issued by it were interlocutory in character and as such are always subject to
modification and revision by the court anytime. Is the order of expropriation final?
A: An **order of condemnation or dismissal is final, resolving the question of whether
or not the plaintiff has properly and legally exercised its power of eminent domain. Once the
first order becomes final and no appeal thereto is taken, the authority to
expropriate and its public use can no longer be questioned. Thus, it has become
final, and the petitioner’s right to expropriate the property for a public use is
no longer subject to review (City of Iloilo v. Hon. Lolita Contreras-Besana, G.R.
No. 168967, February 12, 2010).
c) When plaintiff can IMMEDIATELY enter into possession of the real

property, in relation to R.A. No. 8974
******Whenever it is necessary to acquire real property for the right-of-way or
location for any national government infrastructure project through
expropriation, the appropriate implementing agency shall initiate the expropriation
proceedings before the proper court under the following guidelines:
1. Upon the filing of the complaint, and after due notice to the defendant, and
payment to the owner of the property the amount equivalent to the value of the
property based on the current relevant zonal valuation of the Bureau of

Internal Revenue (BIR), and the value of the improvements and/or structures;
2. In provinces, cities, municipalities and other areas where there is no zonal
valuation, the BIR is hereby mandated within the period of 60 days from the
date of the expropriation case, to come up with a zonal valuation for said area;
and
3. *****In case the completion of a government infrastructure project is of
utmost urgency and importance, and there is no existing valuation of the area
concerned, the implementing agency shall immediately pay the owner of the
property its PROFFERED value taking into consideration the standards
prescribed by the law.
*Upon compliance with the guidelines abovementioned, the court shall
immediately issue to the implementing agency an order to take possession of
the property and start the implementation of the project (Sec. 4, RA 8974).
[] RA 8974 – An act to facilitate the acquisition of right-of-way, site or
location for national government infrastructure projects and for other purposes.
******This is a modification of Section 2 or Rule 67. The latter only
requires deposit “with the authorized government depositary an amount
equivalent to the assessed value of the property”, but RA 8974 requires FULL
PAYMENT of the value of the property based on the BIR zonal value, together
with the value of the improvements, for national government infrastructure
projects.663
d) New system of immediate payment of initial just compensation

1. RA 8974 provides a modification of Sec. 2, Rule 67 where the Government is
required to make immediate and direct payment to the property owner upon the
filing of the complaint to be entitled to a writ of possession. As a relevant
standard for initial compensation, the MARKET VALUE for the property as
663
Q: The Republic of the Philippines, through the Department of Public Works and Highways
(DPWH) filed with the RTC a complaint for the expropriation of the parcel of land owned by
Jovito. The land is to be used as an extension of the national highway. Attached to the complaint is
a bank certificate showing that there is, on deposit with the Land Bank of the Philippines, an amount
equivalent to the assessed value of the property. Then DPWH filed a motion for the issuance of
a writ of possession. Jovito filed a motion to dismiss the complaint on the ground that there are
other properties which would better serve the purpose. xxx
[] [Will Jovito’s motion to dismiss prosper? Explain. (3%) (2009 Bar Question) SUGGESTED
ANSWER: NO. The present Rule of Procedure governing expropriation (Rule 67), as amended by the
1997 Rules of Civil Procedure, requires the defendant to file an Answer, which must be filed on or
before the time stated in the summons. *****Defendant’s objections and defenses should be
pleaded in his Answer not in a motion.
[] As judge, will you grant the writ of possession prayed for by DPWH? Explain. (3%) (2009
Bar Question) SUGGESTED ANSWER: NO. *****The expropriation here is governed by Rep. Act
No. 8974 which requires 100% payment of the zonal value of the property as determined by the
BIR, to be the amount deposited. Before such deposit is made, the national government thru the
DPWH has no right to take possession of the property under expropriation.
stated in the tax declaration or the CURRENT RELEVANT ZONAL

VALUATION of the BIR, whichever is HIGHER and the value of the
improvements and/or structures using the REPLACEMENT COST
METHOD.
2. The intent of RA 8974 to supersede the system of deposit under Rule 67
with the *****scheme of IMMEDIATE payment in cases involving national
government infrastructure projects is indeed very clear (MCWD v. J. King and
Sons, G.R. No. 175983, April 16, 2009).
3. SYSTEM OF DEPOSIT in Sec. 2, Rule 67 vs. RA 8974******
Sec. 2, Rule 67 RA 8974
The government is required only to make an The government is required to make immediate
initial deposit with an authorized government payment to the property owner upon filing of the
depositary to be entitled to a writ of complaint to be entitled to a writ of possession.
possession.
The initial deposit is equivalent to the As the relevant standard for initial compensation, the
assessed value of the property for the market value of the property as stated in the tax
purposes of taxation. declaration or the current relevant zonal valuation of
BIR, whichever is higher and the value of the
improvements and/or structures using the replacement
cost method.
Applies to expropriation by Government for Applies to expropriation by Government for
purposes other than national infrastructure. purposes of national infrastructure projects.
4. Requisites in order that plaintiff may be authorized to IMMEDIATELY

ENTER into property under rule 67—Upon the:
a. Filing of complaint, serving notice to defendant and after depositing
the assessed value of property for taxation purposes with the authorized
government depositary (Sec. 2, Rule 67); and
b. Tender, or payment with legal interest from the taking of possession of
the property, of compensation fixed by the judgment and payment of costs by
plaintiff (Sec. 10, Rule 67).
***Once the preliminary deposit has been made, the expropriator is
entitled to a writ of possession as a MATTER OF RIGHT, and the issuance
of said writ becomes MINISTERIAL on the part of the trial court (Biglang-
Awa v. Bacalla, G.R. Nos. 139927-36, November 22, 2000). The defenses by the
owner against immediate possession can be considered during trial on the
merits (NAPOCOR v. Jocson, 206 SCRA 520).
5. Purposes of preliminary deposit
a. It serves as an advanced payment to the owner of the property should the
court decide in favor of the plaintiff;
b. It shall serve as indemnity against any damage which the owner may have
sustained (Visayan Refining Company v. Camus, 40 Phil. 550).
**The preliminary deposit is ONLY necessary if the plaintiff desires
entry on the land upon its institution of the action (Regalado, 2010).
e) Defenses and objections

1. Defenses and objections:
a. If a defendant has any objection or defense to the taking of his property:
i. He shall serve his answer. The answer shall specifically designate
or identify the property in which he claims to have an interest, state the nature and
extent of the interest claimed;
ii. Thereafter, he shall be entitled to notice of all proceedings affecting
the same;
b. If there are no objections, he must file and serve a notice of
appearance and manifestation to that effect. And thereafter, shall be entitled to
notice of all proceedings (Sec. 3, Rule 67).
2. Remedy of defendant if answer omits some defenses: If the answer omits
some defenses, the remedy, in order to prevent a waiver of those defenses not
alleged, is to seek leave to amend the answer within 10 days from the filing
thereof (Sec. 3, Rule 67).
3. Duty of the Court if the defendant waives his defenses or objections: If a
defendant waives all defenses and objections not so alleged, the court, in the
interest of justice, may permit amendments to the answer to be made not later
than 10 days from the filing thereof.
However, at the trial of the issue of just compensation, whether or not a
defendant has previously appeared or answered, he may present evidence as to the
amount of the compensation to be paid for his property, and he may share in
the distribution of the award (Sec. 3, Rule 67).
4. Declaration of Default: ******Defendant cannot be declared in default.
Failure to file an answer would not bar the court from rendering judgment on the right to
expropriate without prejudice to the defendant’s right to present evidence on
just compensation and to share in the distribution of the award (Sec. 3, Rule
67).664
f) Order of expropriation
1. An order of expropriation (or ORDER OF CONDEMNATION) will be
issued declaring that the plaintiff has a lawful right to take the property.
664
Which of the following is NOT CONSISTENT with the rules governing expropriation
proceedings? (2011 BAR)
(A) The court shall declare the defendant who fails to answer the complaint in default and
render judgment against him.
(B) The court shall refer the case to the Board of Commissioners to determine the amount of just
compensation.
(C) The plaintiff shall make the required deposit and forthwith take immediate possession of the
property sought to be expropriated.
(D) The plaintiff may appropriate the property for public use after judgment and payment of the
compensation fixed in it, despite defendant’s appeal.
2. It is issued when:**
a. The objections to and the defenses against the right of the plaintiff to
expropriate the property are overruled, or
b. No party appears to defend as required by this Rule (Sec. 4, Rule 67).
2. After the rendition of the order of expropriation, the plaintiff shall not be
permitted to dismiss or discontinue the proceeding except upon such terms as the
court deems just and equitable (Sec. 4, Rule 67).
3. UNCERTAIN ownership: The Trial court may decide conflicting claims
of ownership **in the same case. There is no need for an independent action
since the person entitled thereto will be adjudged in the same proceeding.
However, the court may order any sum(s) awarded as compensation for the
property to be paid to the court for the benefit of the person that will be
adjudged as entitled thereto (Sec. 9, Rule 67).
4. APPEAL: The **order of expropriation may be appealed by the defendant
by record on appeal. This is an instance when multiple appeals are allowed because
they have separate and/or several judgments on different issues, EG: issue on
the right to expropriate or issue of just compensation.
**An appeal does not delay the right of the plaintiff to enter upon the
property of the defendant and appropriate the same for public use (Sec. 11, Rule
67). An appeal from judgment shall not prevent the court from determining
the just compensation to be paid (Sec. 4, Rule 67).
5. Effect of REVERSAL: If on appeal the appellate court determines that the
plaintiff has no right of expropriation, judgment shall be rendered ordering the
Regional Trial Court to enforce the restoration to the defendant of the
possession of the property, and to determine the damages which the defendant
sustained and may recover by reason of the possession taken by the plaintiff (Sec.
11, Rule 67).
g) Ascertainment of just compensation

1. JUST COMPENSATION: defined as the **FULL AND FAIR
EQUIVALENT of the property sought to be expropriated. The measure is not
the taker’s gain but the owner’s loss. The compensation, to be just, must be
FAIR not only to the owner but also to the taker. Even as undervaluation
would deprive the owner of his property without due process, so too would its
overvaluation unduly favor him to the PREJUDICE of the public (National
Power Corporation v. De la Cruz, G.R. No. 156093, February 2, 2007).
2. How court determine just compensation: The trial court should first ascertain
the market value of the property, to which should be added the consequential
damages after deducting therefrom the consequential benefits which may arise
from the expropriation. If the consequential benefits exceed the
consequential damages, these items should be disregarded altogether as the basic
value of the property should be paid in every case.
The market value of the property is the price that may be agreed upon by
parties willing but not compelled to enter into the contract of sale. Not unlikely,
a buyer desperate to acquire a piece of property would agree to pay more,
and a seller in urgent need of funds would agree to accept less, than what it is
actually worth.
Among the FACTORS to be considered in arriving at the fair market value
of the property are the cost of acquisition, the current value of like properties,
its actual or potential uses, and in the particular case of lands, their size, shape,
location, and the tax declarations thereon (National Power Corporation v. De
la Cruz, G.R. No. 156093, February 2, 2007).
3. Formula for the determination of just compensation
JC = FMV + CD – CB
If CB is more than CD, then JC = FMV
JC – Just compensation; FMV – Fair market value; CD – Consequential damages;

CB – Consequential benefits. **Sentimental value is not included
a. Consequential Benefit: It refers to ACTUAL BENEFITS derived by the
owner on the remaining portion of his land which are the direct and proximate
results of the improvements consequent to the expropriation, and not the
general benefits which he receives in common with community (Regalado,
2010).
4. Reckoning point for determining just compensation: The value of just
compensation shall be determined as of the date of the taking of the property
or the filing of the complaint, **whichever came first (Sec. 4, Rule 67).
*GR: When the taking of the property sought to be expropriated coincides
with the commencement of the expropriation proceedings, or takes place
subsequent to the filing of the complaint for eminent domain, the just
compensation should be determined as of the date of the filing of the complaint
(City of Iloilo v. Hon. Lolita Contreras-Besana, G.R. No. 168967, February 12,
2010).
**XPNs:
a. Grave injustice to the property owner - Air Transportation Office
cannot conveniently invoke the right of eminent domain to take advantage of the
ridiculously low value of the property at the time of taking that it arbitrarily
chooses to the prejudice of the land owners (Heirs of Mateo Pidacan & Romana Eigo v.
Air Transportation Office, G.R. No. 162779, June 15, 2007).
b. The taking did not have color of legal authority - To allow
NAPOCOR to use the date it constructed the tunnels as the date of valuation
would be grossly unfair. First, it did not enter the land under warrant or color
of legal authority or with intent to expropriate the same. It did not bother to
notify the owners and wrongly assumed it had the right to dig those tunnels under
their property. Secondly, the “improvements” introduced by NAPOCOR, the
tunnels, in no way contributed to an increase in the value of the land. The trial court
rightly computed the valuation of the property as of 1992, when the owners
discovered the construction of the huge underground tunnels beneath their lands
and NAPOCOR confirmed the same and started negotiations for their purchase
but no agreement could be reached (NAPOCOR v. Ibrahim, G.R. No. 168732,
June 29, 2007).
c. The taking of the property was not initially for expropriation - There
was no taking of the property in 1985 by Public Estates Authority (PEA) for
purposes of expropriation. As shown by the records, PEA filed with the RTC its
petition for expropriation on September 22, 2003. The trial court was correct in
ordering the Republic, through PEA, upon the filing of its complaint for
expropriation, to pay Tan just compensation on the basis of the BIR zonal
valuation of the subject property (Tan v. Republic, G.R. No. 170740, May 25,
2007).
d. The owner will be given undue increment advantages because of the
expropriation - The value of the property in question was greatly enhanced
between the time when the extension of the street was laid out and the date when
the condemnation proceedings were filed. The owners of the land have no right
to recover damages for this unearned increment resulting from the
construction of the public improvement for which the land was taken. To permit
them to do so would be to allow them to recover more than the value of the
land at the time when it was taken, which is the true measure of the damages,
or just compensation, and would discourage the construction of important
public improvements (Provincial Gov’t. of Rizal v. Caro de Araullo, G.R. No. L-
36096, August 16, 1933).
**Under Sec. 19 of the Local Government Code the amount to be paid for
the expropriation of the expropriated property shall be determined based on the
fair market value at the time of the taking of the property (Riano, 2009).
5. Effect of NON-PAYMENT of just compensation: Non-payment of just
compensation **does not entitle the private landowner to recover possession
of the expropriated lots.
However, in case where the government **failed to pay just compensation
within 5 years from the finality of judgment in the expropriation proceedings,
the owners concerned shall have the right to recover possession of their
property (Republic v. Lim, G.R. No. 161656, June 29, 2005).
*If the compensation is not paid when the property is taken, but is
postponed to a later date, the **interest awarded is actually part of just
compensation, which takes into account such delay (Benguet Consolidated v.
Republic, G.R. No. 712412, August 15, 1986).
h) Appointment of commissioners; commissioner’s report; court action

upon commissioner’s report
1. ******Congress may enact a law to expropriate property but it cannot limit
just compensation. The determination of just compensation is a judicial

function; the ascertainment of just compensation requires the evaluation of
3 commissioners665.
2. Appointment of commissioner: Upon the rendition of the order of
expropriation, the court shall appoint not more than 3 COMPETENT AND
DISINTERESTED persons as commissioners to ascertain and report to the
court the just compensation for the property sought to be taken. The order of
appointment shall designate the time and place of the first session of the
hearing to be held by the commissioners and specify the time within which their
report shall be submitted to the court (Sec. 5, Rule 67).
**Objections to the order of appointment must be filed within 10 days
from service of the order and shall be resolved within 30 days after all the
commissioners received the copies of the objections (Sec. 5, Rule 67).
3. MANDATORY requirement of appointing Commissioner: Appointment of
commissioners to ascertain just compensation for the property sought to be taken
is a **mandatory requirement in expropriation cases. Where the principal
issue is the determination of just compensation, a HEARING before the
commissioners is INDISPENSABLE to allow the parties to present evidence
on the issue of just compensation.
While it is true that the findings of commissioners may be
disregarded and the trial court may substitute its own estimate of the value,
the latter may only do so for valid reasons, that is:
a. where the commissioners have applied illegal principles to the
evidence submitted to them,
b. where they have disregarded a clear preponderance of evidence, or
c. where the amount allowed is either grossly inadequate or excessive
(National Power Corporation v. De la Cruz, G.R. No. 156093, February 2, 2007).
4. COMMISSIONER’S REPORT: As a rule, the commissioners shall make
their report within 60 days from the date they were notified of their
appointment. This period may be extended in the discretion of the court.
Upon the filing of such report, the clerk of the court shall serve copies
thereof on all interested parties, with notice that they are allowed 10 days
within which to file objections to the findings of the report, if they so desire (Sec.
7, Rule 67; Riano, 2009).
665
Bar 2006: May Congress enact a law providing that a 5,000 square meter lot, a part of the UST
compound in Sampaloc, Manila, be expropriated for the construction of a park in honor of former
City Mayor Arsenio Lacson, and as compensation to UST, the City of Manila shall deliver its 5-
hectare lot in Sta. Rosa, Laguna originally intended as a residential subdivision for the Manila City
Hall employees?
A: Congress may enact a law to expropriate property but it cannot limit just compensation.
The determination of just compensation is a **judicial function and Congress may not supplant or
prevent the exercise of judicial discretion to determine just compensation. Under Sec. 5, Rule 67 of
the Rules of Court, the ascertainment of just compensation requires the evaluation of 3
commissioners.
The court may order the commissioners to report when any particular
portion of the real estate shall have been passed upon by them, and may render
judgment upon such partial report, and direct the commissioners to proceed with
their work as to subsequent portions of the property sought to be expropriated,
and may from time to time so deal with such property. The commissioners shall
make a FULL AND ACCURATE REPORT to the court of all their
proceedings, and such proceedings shall not be effectual until the court shall have
accepted their report and rendered judgment in accordance with their
recommendations (Sec. 7, Rule 67).
i) Rights of plaintiff upon judgment and payment

1. After payment of just compensation, as determined in the judgment, the
plaintiff shall have the right to:
a. Enter upon the property expropriated and to appropriate the same
for the public use or purpose defined in the judgment; or
b. To retain possession already previously made in accordance with Sec. 2
(Entry of plaintiff upon depositing value with authorized government depositary)
(Sec. 10, Rule 67).
2. When defendant declines to receive the amount tendered: If the defendant
and his counsel absent themselves from the court, or decline to receive the
amount tendered, the same shall be **ordered to be deposited in court and such
deposit shall have the SAME EFFECT AS ACTUAL PAYMENT thereof to
the defendant or the person ultimately adjudged entitled thereto (Sec. 10, Rule 67).
3. The payment shall involve the amount fixed in the judgment and shall include
legal interest from the taking of possession of the property (Ibid.).
j) Effect of recording of judgment

When real estate is expropriated, a certified copy of such judgment shall be
RECORDED in the registry of deeds of the place in which the property is
situated, and its effect shall be to VEST in the plaintiff the TITLE to the real
estate so described for such public use or purpose (Sec. 13, Rule 67).
———————————————————————————————
3.19.10. Foreclosure of real estate mortgage [Rule 68]
a) Judgment on foreclosure for payment or sale 566

b) Sale of mortgaged property; effect 567
c) Disposition of proceeds of sale 567
d) Deficiency judgment 569
e) Judicial foreclosure vs. extrajudicial foreclosure 569
f) Equity of redemption vs. right of redemption*** 570
———————————————————————————————
PRELIMINARIES ON FORECLOSURE OF REM

1. Real Estate Mortgage (REM): An accessory contract executed by a debtor in
favor of a creditor as security for principal obligation (Riano, 2012).
2. Foreclosure of REM: It is the remedy used for the satisfaction of any
monetary obligation, which a person owes to another, by proceeding against the
property used to secure said obligation.
3. Requisites of a valid foreclosure of REM******
a. A finding of the amount due the plaintiff including interest, cost and
other charges approved by the court;
b. Order to defendant to pay said amount within a period of not less
than 90 days nor more than 120 days FROM ENTRY of judgment;666 and
c. If the defendant defaults, the court should order the SALE at public
auction of the mortgaged property (Sec. 2, Rule 68).
4. Jurisdiction over foreclosure of REM: It is the **RTC of the province where
the land or any part thereof is situated.
**Foreclosure of REM is incapable of pecuniary estimation because the
court in this action would have to resolve the issue of whether or not there is a
legal basis for foreclosure (Riano, 2012). But see infra.
[] *****If it’s both a real action and incapable of pecuniary estimation,
analyze it as a real action, hence, look at the assessed value. Barrido vs. Nonato
2014: MTCC has jurisdiction to take cognizance of real actions or those
affecting title to real property, or for the recovery of possession, or for the
666
When the court renders judgment in a judicial foreclosure proceeding, when is the mortgaged
property sold at public auction to satisfy the judgment? (2013 BAR)
(A) After the decision has become final and executory.
(B) At any time after the failure of the defendant to pay the judgment amount.
(C) After the failure of the defendant to pay the judgment amount within the period fixed in
the decision, which shall not be less than ninety (90) nor more than one hundred twenty (120)
days from entry of judgment.
(D) The mortgaged property is never sold at public auction.
(E) The mortgaged property may be sold but not in any of the situations outlined above.
partition or condemnation of, or FORECLOSURE of a mortgage on real

property. Here, the subject property’s assessed value was merely P8,080.00, an
amount which certainly does not exceed the required limit of P20,000.00 for civil
actions outside Metro Manila to fall within the jurisdiction of the MTCC.
Therefore, the lower court correctly took cognizance of the instant case.
5. CONTENTS of a complaint for foreclosure of REM—The complaint shall

contain the following:
a. The date and due execution of the mortgage;
b. The names and residences of the mortgagor and the mortgagee;
c. A description of the mortgaged property;
d. Date of the note or other documentary evidence of the obligation secured
by the mortgage, the amount claimed to be unpaid thereon; and
e. The names and residences of all persons having or claiming an interest in
the property subordinate in right to that of the holder of the mortgage (Sec. 1,
Rule 68).
6. Cause of action in a foreclosure suit: Generally, non-payment of the
mortgage loan, but it may be on other grounds which under the contract
warrant the foreclosure, such as the violation of some of other conditions therein
(Regalado, 2010).
7. Defendants that must be joined
a. The persons obligated to pay the mortgage debt;
b. The persons who own, occupy or control the mortgaged premises;
c. The transferee or grantee of the property; and
d. The second mortgagee or junior encumbrancer, or any person claiming a
right or interest in the property subordinate to the mortgage sought to be
foreclosed; but if the action is by the junior encumbrancer, the first mortgagee
may also be joined as defendant (Regalado, 2012).
a) Judgment on foreclosure for payment or sale

1. It is the judgment of the court ordering the debtor to pay within a period
not less than 90 days nor more than 120 days FROM THE ENTRY of
judgment after ascertaining the amount due to the plaintiff (Sec. 2, Rule 68).
*The judgment of the court is considered a FINAL ADJUDICATION of
the case and hence, is subject to challenge by the aggrieved party by **APPEAL
or by other post judgment remedies (Riano, 2012).
2. Foreclosure sale: When the defendant fails to pay the amount of the
judgment within the period specified therein, the court, upon motion, shall order
the property to be sold in the manner and under the provisions of Rule 39 and
other regulations governing sales of real estate under executions (Sec. 3, Rule 68).
b) Sale of mortgaged property; effect

1. If the mortgagor fails to pay the sum due within the period (90-120 days)
stated by the court in its judgment, upon motion of the mortgagee, the court
shall order the property to be sold in the manner and under the provisions of
Rule 39 and other regulations governing sales of real estate under execution (Sec.
3, Rule 68).
2. EFFECT of sale of mortgaged property: The purchaser in a foreclosure sale is
entitled to a writ of possession and that, upon an ex parte motion of the
purchaser, it is **MINISTERIAL upon the court to issue writ of possession in
his favor. He is not required to bring a separate action for possession after the
redemption period has expired.667
However, where the parties in possession claim ownership thereof and,
if there is some plausibility in their claim, issue must first be ventilated in a
proper hearing of the merits thereof (Regalado, 2012).
3. The mortgagor does not have the right to a notice of SALE after his failure to
pay the debt because said **notice is not litigable and the issuance thereof is
MINISTERIAL.
**The mortgagor is entitled to a notice of HEARING of the
confirmation of the sale; otherwise, the order is void. Due process requires that said
notice be given so that the mortgagor can resist the motion and be informed
that his right to redeem is cut-off (Tiglao v. Botones, G.R. No. L-3619,
667
BAR 2016: Q.1: Is the buyer in the auction sale arising from an extra-judicial foreclosure entitled
to a writ of possession even before the expiration of the redemption period? If so, what is the
action to be taken? SUGGESTED ANSWER: Yes, under Section 7 of Act No. 3135, the buyer in
such auction sale is entitled to a writ of possession even before the expiration of the redemption
period. The action to be taken is to file an ex parte petition for a writ of possession with the RTC
furnishing a bond to the debtor. Upon approval of the bond, the buyer would be entitled to the
issuance of a writ of possession. Also under Section 47 of the General Banking Law, the purchaser
at a judicial or extrajudicial foreclosure sale where the mortgagee is a bank shall have the right to enter
and take possession of the property immediately after the date of the confirmation of the auction sale.
Q.2: After the period of redemption has lapsed and the title to the lot is consolidated in the name of
the auction buyer, is he entitled to the writ of possession as a matter of right? If so, what is the action
to be taken? SUGGESTED ANSWER: Yes, the buyer is entitled to the writ of possession as a matter
of right. After consolidation of ownership, a writ of possession will issue as a matter of course,
without the filing and approval of a bond. The action to be taken is to file an ex parte petition for
issuance of writ of possession with the RTC pursuant to Section 7 of Act No. 3135. (Navarra v. CA,
204 SCRA 850).
Q.3: Suppose that after the title to the lot has been consolidated in the name of the auction buyer, said
buyer sold the lot to a third party without first getting a writ of possession. Can the transferee exercise
the right of the auction buyer and claim that it is a ministerial duty of the court to issue a writ of
possession in his favor? Briefly explain. SUGGESTED ANSWER: Yes. The Supreme Court has
held that a transferee of the purchaser or winning bidder may file an ex parte motion for the
issuance of a writ of possession. The reason is that the transferee steps into the shoes of the
purchaser and acquires whatever rights the transferor had. (Laureno v. Bormaheco, 404 Phil. 80).
(Jurist Review Center, Inc.)
October 29, 1951). The **order of confirmation is appealable.

4. *****Effect of order of confirmation:668 It shall operate to divest the rights
in the property of all the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be allowed by law (Sec. 3, Rule
68). It is said that **title vests in the purchaser upon a valid confirmation of
the sale and retroacts to the date of the sale (Binalgan Estate v. Gatuslao, 74
Phil 128; Riano, 2009).
5. Remedy if the mortgagor refuses to vacate: The purchaser may ask for a
**writ of possession.
c) Disposition of proceeds of sale

1. The proceeds of the sale of the mortgaged property shall, after deducting the
costs of the sale, be paid to the person foreclosing the mortgage;
2. When there is any balance or residue after paying off the mortgage debt due,
the same shall be paid to junior encumbrances in the order of their priority. If
there be any further balance after paying them; or
3. If there be no junior encumbrances, the same shall be paid to the mortgagor or
any person entitled thereto (Sec. 4, Rule 68).
d) Deficiency judgment
1. It is the judgment rendered by the court **holding the defendant liable for any
unpaid balance due to the mortgagee if the proceeds from the foreclosure sale
do not satisfy the entire debt.
2. Recovery of deficiency: If there is a balance due to the plaintiff after applying
the proceeds of the sale, the court, upon motion, shall render judgment against
the defendant for any balance for which, by the record of the case, he may be
personally liable to the plaintiff. Execution may issue immediately if the
balance is all due at the time of the rendition of the judgment. If not due, the
plaintiff shall be entitled to execution at such time as the balance
remaining becomes due under the terms of the original contract, which time
shall be stated in the judgment (Sec. 6, Rule 68; Riano, 2009).
3. Liability of a 3rd party mortgagor in case of deficiency judgment: If such third
person did not assume personal liability for the payment of the debt, the extent
of recovery in the judgment of foreclosure shall be limited to the purchase price
at the foreclosure sale and no deficiency judgment can be recovered against
said person (Phil. Trust Co. v. Tan Suisa, 52 Phil 852).
668
Which of the following correctly states the rule on foreclosure of mortgages? (2011 BAR)
(A) The rule on foreclosure of real estate mortgage is suppletorily applicable to extrajudicial
foreclosures.
(B) In judicial foreclosure, an order of confirmation is necessary to vest all rights in the
purchaser.
(C) There is equity of redemption in extra-judicial foreclosure.
(D) A right of redemption by the judgment obligor exists in judicial foreclosure.
i. Instances when court cannot render deficiency judgment

1. Case is covered by the Recto Law (Art. 1484, NCC);
2. Mortgagor is a non-resident and who at the time of the filing of the action for
foreclosure and during the pendency of the proceedings was outside the
Philippines, unless there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with the probate court under
Sec. 7, Rule 86; and
4. Mortgagee is a third person but not669 solidarily liable with the debtor.670
e) Judicial foreclosure vs. extrajudicial foreclosure

**A mortgagee may bring a personal action for the amount due, instead of a
foreclosure suit, in which case, he will be deemed to have waived his right to
proceed against the property in a foreclosure proceeding (Movido v. RFC, G.R.
No. L-11990, May 29, 1959).
JUDICIAL vs. EXTRA-JUDICIAL FORECLOSURE OF REM*****

JF EJF
Governed by R68, ROC Act 3135
669
In a judicial foreclosure proceeding, under which of the following instances is the court NOT
ALLOWED to render deficiency judgment for the plaintiff? (2011 BAR)
(A) If the mortgagee is a banking institution.
(B) if upon the mortgagor’s death during the proceeding, the mortgagee submits his claim in the estate
proceeding.
(C) If the mortgagor is a third party who is not solidarily liable with the debtor.
(D) If the mortgagor is a non-resident person and cannot be found in the Philippines.
670
[] Bar 2003: Arlene borrowed P1 million from GAP Bank (GAP) secured by the titled land of her
friend Gretchen who, however, did not assume personal liability for the loan. Arlene defaulted and
GAP filed an action for judicial foreclosure of the real estate mortgage impleading Arlene and
Gretchen as defendants. The court rendered judgment directing Arlene to pay the outstanding account
of P1.5 million (principal plus interest) to GAP. No appeal was taken by Arlene. Arlene failed to pay
the judgment debt within the period specified in the decision. At the foreclosure sale, the land was
sold to GAP for P1.2 million. The sale was confirmed by the court, and the confirmation of the
sale was registered with the Registry of Deeds on January 5, 2002. On January 10, 2003, GAP filed
an ex-parte motion with the court for the issuance of a writ of possession to oust Gretchen from the
land. It also filed a deficiency claim for P800,000 against Arlene and Gretchen. The deficiency claim
was opposed by Arlene and Gretchen.
a. Resolve the motion for the issuance of a writ of possession: In judicial foreclosure by banks
such as GAP, the mortgagor or debtor whose real property has been sold on foreclosure has the right
to redeem the property within 1 year after the sale (or registration of the sale). However, under Sec.
47 of the General Banking Law of 2000, the purchaser at the auction sale has the right to obtain a writ of
possession after the finality of the order confirming sale. The motion for writ of possession,
however, cannot be filed ex parte. There must be a notice of hearing. (TOM: not responsive)
b. Resolve the deficiency claim of the bank: The deficiency claim of the bank may be enforced
**against the mortgage debtor Arlene, but it cannot be enforced against Gretchen, the owner of
the mortgaged property, who did not assume personal liability to the loan.
JF EJF
Filing of action Requires court intervention: filing of No court intervention
independent action necessary
Redemption There’s EOR but no ROR except when There’s ROR
MEE is a banking institution
Deficiency of judgment There could be DOJ rendered in the NO J on D because there is no
(DOJ) same proceeding judicial proceeding
Recovery of deficiency By mere motion for DOJ Through independent action
*EOR: Equity of Redemption;671 ROR: Right of Redemption; MEE: mortgagee
f) Equity of redemption vs. right of redemption***

REDEMPTION IN FORECLOSURES
1. Judicial Foreclosure: *****Yes to EOR; No to ROR, XPN: Mortgagee is a
bank.
In judicial foreclosure there is equity of redemption, but there is no
right of redemption except where the mortgagee is a banking institution.
2. Extrajudicial Foreclosure: Yes to ROR, 1 year from registration of COS.
In extra-judicial foreclosure, there is a right of redemption within the period
of 1 year from the time of registration of the certificate of sale.
3. EOR vs. ROR*****
EOR ROR
available in judicial foreclosure available in extra-judicial foreclosure

refers to the right of the mortgagor who defaulted refers to the right of the debtor, his successor-
in the performance of his obligation to extinguish in-interest or any judicial creditor or judgment
the mortgage and retain ownership of the property creditor of said debtor or any person having
in a judicial foreclosure; lien on the property subsequent to the
mortgage to redeem the property
It is exercised by paying the debt within a period It is exercised within 1 year from the date of
of 90-120 days from the ENTRY of judgment or REGISTRATION of the (Sheriff’s)
even after the foreclosure sale but prior to certificate of foreclosure sale
confirmation
Governed by Rule 68 Governed by Act 3135
671
Equity of Redemption is the right of the mortgagor to redeem the mortgaged property after default
in the performance of the conditions of the mortgage, before the sale or the confirmation of sale in
a(n): (2012 BAR)
a. extrajudicialforeclosureofmortgage.
b. judicial foreclosure of mortgage.
c. execution sale.
d. foreclosurebyabank.
[] While the law specifies a period of 1 year as the time within which the
right of redemption may be exercised, in reality, this translates to more than 1
year, especially when the mortgagee is remiss in his obligation to have the sale
registered. It may happen that more than a year has passed since the sale of the
property and the certificate has not been registered yet. In that case, the period
is deemed not to have commenced the period of redemption.
[] ***In extrajudicial foreclosure, the mortgagor has the right to redeem the
property within one year from the registration of the deed of sale. However, Sec.
47 of the General Banking Act provides that in case of extrajudicial foreclosure,
juridical persons shall have the right to redeem the property until, but not after,
the registration of the certificate of foreclosure sale which in no case shall be
more than 3 months after foreclosure, whichever is earlier. The pendency of the
action stops the running of the right of redemption. Said right continues after perfection
of an appeal until the decision of the appeal (Consolidated Bank and Trust Corp. v.
IAC, G.R. No. 73341, August 21, 1987).
[] “The equity of redemption is, to be sure, different from and should not be
confused with the right of redemption. The right of redemption in relation to a
mortgage – understood in the sense of a prerogative to re-acquire mortgaged
property after registration of the foreclosure sale – exists only in the case of the
extrajudicial foreclosure of the mortgage. No such right is recognized in a judicial
foreclosure except only where the mortgagee is the Philippine National Bank or a
bank or banking institution. Where a mortgage is foreclosed extrajudicially,
Act 3135 grants to the mortgagor the right of redemption within one (1) year
from the registration of the sheriff’s certificate of foreclosure sale. Where the
foreclosure is judicially effected, however, no equivalent right of redemption
exists. The law declares that a judicial foreclosure sale, ‘when confirmed by an
order of the court, x x shall operate to divest the rights of all the parties to the
action and to vest their rights in the purchaser, subject to such rights of
redemption a may be allowed by law.’ Such rights exceptionally “allowed by law’
(i.e. even after confirmation by an order of the court) are those granted by the
charter of the Philippine National Bank (Acts No. 2747 and 2938), and the
General Banking Act (R.A. 337). These laws confer on the mortgagor, his
successors in interest or any judgment creditor of the mortgagor, the right to
redeem the property sold on foreclosure – after confirmation by the court of the
foreclosure sale – which may be exercised within a period of one (1) year, counted
from the date of registration of the certificate of sale in the Registry Property. But,
to repeat, no such right of redemption exists in case of judicial foreclosure of a
mortgage if the mortgagee is not the PNB or a bank or banking institution. In
such a case, the foreclosure sale, ‘when confirmed by an order of the court.
x x shall operate to divest the rights of all the parties to the action and to
vest their rights in the purchaser.’ There then exists only what is known as the
equity of redemption. This is simply the right of the defendant mortgagor to
extinguish the mortgage and retain ownership of the property by paying the
secured debt within the 90-day period after the judgment becomes final, in
accordance with Rule 68, or even after judgment becomes final, in accordance
with Rule 68, or even after the foreclosure sale but prior to its confirmation.
Section 2, Rule 68 provides that – ‘xx If upon the trial xx the court shall find the
facts set forth in the complaint to be true, it shall ascertain the amount due to the
plaintiff upon the mortgage debt or obligation, including interest and costs, and
shall render judgment for the sum so found due and order the same to be paid
into court within a period of not less than ninety (90) days from the date of the
service of such order, and that in default of such payment the property be sold to
realize the mortgage debt and costs.’ This is the mortgagor’s equity (not right) of
redemption which, as above stated, may be exercised by him even beyond the 90-
day period ‘from the date of service of the order,’ and even after the foreclosure
sale itself, provided it be before the order of confirmation of the sale. After such
order of confirmation, no redemption can be effected any longer.” (Huerta Alba
Resort, Inc. v. CA, 339 SCRA 534 [2000] citing Limpin v. IAC, 166 SCRA 87)
———————————————————————————————
3.19.11. Partition [Rule 69]
a) Who may file complaint; who should be made defendants 574

b) Matters to allege in the complaint for partition 575
c) Two stages in every action for partition 575
d) Order of partition and partition by agreement 575
e) Partition by commissioners; appointment of commissioners, commissioner’s report; court action
upon commissioner’s report 576
f) Judgment and its effects 576
g) Partition of personal property 577
h) Prescription of action 578
———————————————————————————————
PRELIMINARIES ON PARTITION
1. It is a process of dividing and assigning property **owned in common
among the various co-owners thereof in proportion to their respective interests
in said property.
2. It is commenced by a complaint (Sec. 1, Rule 69).
3. Jurisdiction over partition: The action is cognizable by the **RTC since it is
considered incapable of pecuniary estimation.
**However, since the action affects interest in real property, jurisdiction shall be
determined by inquiring into the assessed value of the property (Sec. 19(2), BP
129, as amended by RA 7691). Hence an action for partition may be filed in the
MTC, if the assessed value is not more than Php 20,000 or Php 50,000. If the subject matter
is personal property, the value should not be more than Php 300,000 or Php 400,000
(Heirs of Valeriano Concha, Sr. v. Lumocso, G.R. No. 158121, December 12,
2007).
4. REQUISITES of a valid partition******
a. Right to compel the partition
b. Complaint must state the nature672 and extent of plaintiff's title and a
description of the real estate of which partition is demanded
c. All other persons interested in the property must be joined as defendants
(Sec. 1, Rule 69).
4. Instances when a co-owner may not demand**** partition (ADL-SU)
a. There is an agreement among the co-owners to keep the property
672
When may a co-owner NOT demand the partition of the thing owned in common? (2011 BAR)
(A) When the creditor of one of the co-owners has attached the property.
(B) When the property is essentially indivisible.
(C) When related co-owners agreed to keep the property within the family.
(D) When a co-owner uses the property as his residence.
undivided for a certain period of time but **not exceeding ten years (Art. 494,
NCC);
b. When partition is prohibited by the donor or testator for a period
**not exceeding 20 years (Art. 494; Art. 1083, NCC);
c. When partition is prohibited by law (Art. 494, NCC);
d. When property is not subject to physical division and to do so would
render it unserviceable for the use for which it is intended (Art. 495, NCC);
e. When the condition imposed upon voluntary heirs before they can
demand partition has not yet been fulfilled (Art. 1094, NCC).
a) Who may file complaint; who should be made defendants

1. Who may file: The action shall be brought by the person who has a right to
compel the partition of real estate (Sec. 1, Rule 69) or of an estate composed of
personal property, or both real and personal property (Sec. 13, Rule 69). The
**plaintiff is a person who is supposed to be a co-owner of the property or
estate sought to be partitioned. The defendants are all the co-owners.
2. ****All the co-owners are indispensable parties (Riano, 2012). Non-inclusion
of a co-owner in an action for partition
a. Before judgment – Not a ground for a motion to dismiss. The remedy is to
**file a motion to include the party.
b. After judgment – Makes the judgment therein void because co-owners
are indispensable parties.
****Creditors or assignees of co-owners may intervene and object to a
partition affected without their concurrence. But they **cannot impugn a
partition already executed unless there has been fraud or in case it was made
notwithstanding a formal opposition presented to prevent it (Sec. 12, Rule 69).
b) Matters to allege in the complaint for partition

1. The plaintiff shall state in his complaint the following:**
a. The nature and extent of his title;
b. An adequate description of the real estate of which partition is
demanded;
c. Shall join as defendants all other persons interested in the property (Sec.
1, Rule 69); and
d. He must also include a demand for the accounting of the rents,
profits and other income from the property which he may be entitled to.
**When the allegations of the complaint allege that the plaintiff asserts
exclusive ownership of the party sought to be partitioned, the nature of the
action is NOT one for partition. It is an action for RECOVERY of property
(De la Cruz v. Court of Appeals, 412 SCRA 282; Riano, 2009).
c) Two stages in every action for partition

1. Propriety of partition – whether co-ownership exists; and
2. How to actually partition the property and accounting.
d) Order of partition and partition by agreement

1. Modes of partition
a. By agreement of the parties; or
b. By judicial proceedings under Rule 69 (order of partition) (Art. 494
NCC; Figuracion-Gerilla v. Vda. De Figuracion, G.R. No. 154322, August 22,
2006).
Nothing in this Rule shall be construed to restrict or prevent persons
holding real estate jointly or in common from making an amicable partition
thereof by agreement and suitable instruments of conveyance without recourse to
an action (Sec. 12, Rule 69). **If the co-owners cannot agree on the partition
of the property, the only recourse is the filing of an action for partition
(Riano, 2012).
2. ORDER OF PARTITION: It is an order that directs the parties or co-
owners to partition the property.
a. **The primary issue to be determined in an action for partition is
whether or not the plaintiff has the right to partition (Riano, 2012).
b. When court can issue the order of partition: During the trial, the court
shall determine whether or not the plaintiff is truly a co-owner of the property,
that there is indeed a co-ownership among the parties, and that a partition is not
legally proscribed thus may be allowed. If the court so finds that the facts are such
that a partition would be in order, and that the plaintiff has a right to demand
partition, the court will issue an order of partition.
c. After the order of partition the parties may, if they are able to agree,
make the partition among themselves by proper instruments of conveyance,
and the court shall confirm the partition so agreed upon by all the parties, and
such partition, together with the order of the court confirming the same, shall be
recorded in the registry of deeds of the place in which the property is situated
(Sec. 2, Rule 69).
e) Partition by commissioners; appointment of commissioners,

commissioner’s report; court action upon commissioner’s report
1. Appointment of Commissioners: If co-owners are unable to agree upon the
partition of the property, the next stage in the action is the appointment of
commissioners (Riano, 2012).
If parties cannot agree, the court shall appoint not more than 3
commissioners of COMPETENT AND DISINTERESTED persons to make
partition. They shall make FULL AND ACCURATE REPORT to the court of
all their proceedings as to the partition for the parties (Sec. 3, Rule 69).
The appointment of commissioners is **MANDATORY unless there is
an extrajudicial partition between the parties. They have the **power to effect
the partition but NOT to inquire into question of OWNERSHIP or
possession.
2. When it is made to appear to the commissioners that the real state, or a portion
thereof, cannot be divided without prejudice to the interests of the parties, the
**court may order it assigned to one of the parties willing to take the same,
provided he pays to the other parties such amount as the commissioners
deem EQUITABLE (Sec. 5, Rule 69).
3. If the interested parties ask for the property be sold instead of being
assigned the Court shall order the commissioners to sell the real estate at
public sale under such conditions and within such time as the court may
determine (Ibid.).
4. DUTIES of the commissioners in an action for partition (RAS)
a. Make a full and accurate report to the court of all their proceedings as to
the partition;
b. The assignment of real estate to one of the parties; or
c. The sale of the same.
5. COMMISSIONER’S REPORT: The interested parties are allowed 10 days
within which to file objections to the findings of the report (Sec. 6, Rule 69). It
is not binding until the court has accepted it and rendered judgment
thereon.
**Court not bound by the report of the commissioner: The court may,
upon hearing, accept the report and render judgment in accordance with the
same; recommit the same to the commissioners for further report of the facts;
accept or reject the report in part; or render judgment that shall effectuate a fair
and just partition of the real estate (Sec. 7, Rule 69).
**The rule mandates that a hearing must be conducted before a
rendition of a judgment.
f) Judgment and its effects

1. Contents of Judgment and its effects
a. If actual partition of property is made, the judgment shall state definitely:
i. The metes and bounds and adequate description; and
ii. The particular portion of the real estate assigned to each party.
b. If the whole property is assigned to one of the parties upon his paying
to the others the sum or sums ordered by the court, the judgment shall state the
fact of such payment, and of the assignment of the real estate to the party
making the payment.
c. If the property is sold and the sale confirmed by the court, the judgment
shall state:
i. the name of the purchaser or purchasers;
ii. A definite description of the parcels of real estate sold to each
purchaser.
**A certified copy of the judgment shall in either case be recorded in the
registry of deeds of the place in which the real estate is situated, and the expenses
of such recording shall be taxed as part of the costs of the action (Sec. 11, Rule
69).
2. Stages in an action for partition could be the subject of appeal**
a. Order determining the propriety of the partition;
b. Judgment as to the fruits and income of the property;
c. Judgment of partition.
***The mode of appeal is record on appeal. This is one of the instances
when the rules allow multiple appeals. A judgment declaring the existence of
co-ownership is immediately appealable. Judgment directing an accounting is
appealable regardless of whether the accounting is the principal relief sought or a mere incident,
and becomes final and executory within the reglementary period (Miranda v. CA,
G.R. No. L-33007, June 18, 1976).
g) Partition of personal property

*The provisions of this Rule shall apply to partitions of estates composed of
personal property, or of both real and personal property, in so far as the same
may be applicable (Sec. 13, Rule 69).
h) Prescription of action
1. GR: Action to demand partition of a co-owned property does not prescribe.
2. XPN: **A co-owner may acquire ownership thereof by prescription where
there exists a CLEAR REPUDIATION of the co-ownership and the co-
owners are apprised of the claim of adverse and exclusive ownership (Heirs
of Restar v. Heirs of Cichon, 475 SCRA 731; Riano, 2009).
3. NB: *****Prescription of action does not run in favor of a co-owner or co-heir against
his co-owner or co-heirs as long as there is a recognition of the co-ownership
expressly or impliedly (Art. 494, NCC).
———————————————————————————————
3.19.12. Forcible entry and unlawful detainer [Rule 70]
a) Definitions and distinction 579

b) Distinguished from accion publiciana, accion reivindicatoria and accion interdictal 579
c) How to determine jurisdiction in accion publiciana, accion reivindicatoria and accion
interdictal 581
d) Who may institute the action and when; against whom the action may be maintained 582
e) Pleadings allowed 582
f) Action on the complaint 583
g) When demand is necessary 583
h) Preliminary injunction and preliminary mandatory injunction 583
i) Resolving defense of ownership 585
j) How to stay the immediate execution of judgment 585
k) Summary procedure, prohibited pleadings 587
Appeal Procedure: 588
———————————————————————————————
a) Definitions and distinction

1. FORCIBLE ENTRY: It is an action to recover possession founded upon
**ILLEGAL POSSESSION FROM THE BEGINNING when one is
deprived of physical possession of real property by means of force,
intimidation, threat, strategy, or stealth. It is commenced by a verified
complaint (Sec. 1, Rule 70).
a. REQUISITES of forcible entry (PFISTS-1)*****
i. A person is deprived of possession of any land or building;
ii. by force, intimidation, threat, strategy, or stealth (FISTS); and
iii. Action is brought within 1 year from the unlawful deprivation
(Sec. 1, Rule 70).
b. Questions to be resolved in an action for forcible entry (AOR)
i. Who has actual possession over the real property;
ii. Was the possessor ousted therefrom within 1 year from the filing
of the complaint by force, intimidation, strategy, threat or stealth; and
iii. Does the plaintiff ask for the restoration of his possession (Dizon
v. Concina, G.R. No. 23756, December 27, 1969).
2. UNLAWFUL DETAINER: It is where one illegally withholds possession
AFTER THE EXPIRATION OR TERMINATION OF HIS RIGHT to
hold possession under any contract, express or implied (Riano, 2012). It is
commenced by a verified complaint (Sec. 1, Rule 70).
a. REQUISITES of unlawful detainer*****
i. Possession of any land or building is unlawfully withheld from a

lessor, vendor, vendee, or other person after the expiration or termination of
the right to hold possession by virtue of any contract express or implied;
**It has been held that prior physical possession by the
plaintiff is not an indispensable requirement in an unlawful detainer case
brought by a vendee or other person against whom the possession of any land is
unlawfully withheld after the expiration or termination of a right to hold
possession. (William Go v. Albert Looyuko, G.R. No. 19652, July 1, 2013, citing
Sps. Maninang v. CA, 373 Phil. 304).
ii. Action is brought within 1 year after such unlawful deprivation
or withholding of possession673; and
iii. Demand to pay or comply with the conditions of the lease and
to vacate is made upon the lessee (Sec. 1, Rule 70).
b. Formal contract not a prerequisite in unlawful detainer: Even if there
is no formal contract between the parties, there can still be an unlawful detainer
because ****implied contracts are covered by ejectment proceedings.
Possession by tolerance creates an implied promise to vacate the premises
upon the demand of the owner (Peran v. CFI of Sorsogon, G.R. No. 57259,
October 13, 1983).
3. If the complaint does not allege facts showing compliance with the prescribed
one year period to file an action for unlawful detainer, then it cannot properly
qualify as such action over which the MTCC can exercise jurisdiction. Such
allegations are JURISDICTIONAL AND CRUCIAL. It may then be an accion
publiciana or accion reivindicatoria (Estate of Manantan v. Somera, G.R. No.
145867, April 7, 2009).
4. Forcible Entry vs. Unlawful Detainer******
Forcible Entry (Detentacion) Unlawful Detainer (Desahucio)
Possession of the land by the defendant is unlawful Possession is inceptively lawful but it
from the beginning as he acquires possession by becomes illegal by reason of the termination
FISTS. of his right to the possession of the property
under his contract with the plaintiff.
673
BAR 2017: Q: What trial court outside Metro Manila has exclusive original jurisdiction over the
following: An action filed on November 13, 2017 to recover the possession of an apartment unit being
occupied by the defendant by mere tolerance of the plaintiff, after the former ignored the last demand
to vacate that was duly served upon and received by him on July 6,2016. SUGGESTED ANSWER: It
would be either the MTC or the RTC depending upon the assessed value of the apartment unit. Under
B.P. Blg. 129, jurisdiction over real actions is vested in the MTC if the assessed value of the real
property involved does not exceed P20,000 and in the RTC if such assessed value exceeds
P20,000. The action to recover possession can no longer be one for unlawful detainer since it
was brought beyond one year from the last demand to vacate. (Jurist Reivew Center, Inc.)
Demand to vacate is not required before the filing Demand is jurisdictional if the ground is non-
of the action because occupancy is illegal from payment of rentals or failure to comply with the lease
the very beginning contract.
The plaintiff must prove that he was in prior The plaintiff need **not have been in prior
physical possession of the premises until he was physical possession.
deprived thereof by the defendant.
GR: The 1 year period is counted from the date of Period is counted from the date of the last
actual entry on the land. XPN: When entry is by demand or last letter of demand in case of
stealth, the period must be counted from the demand non-payment of rentals or violation of the
to vacate upon learning of the stealth conditions of the lease (Riano, 2009).
[] Bar areas in ejectment cases: In an action for unlawful detainer, it is not

required that the plaintiff be in prior physical possession of the land subject
of the action, like sale with right of repurchase.674
b) Distinguished from accion publiciana, accion reivindicatoria and

accion interdictal
1. Actions available to recover possession of real property
a. Accion Interdictal (ejectment);
b. Accion Publiciana; and
c. Accion Reinvindicatoria.
2. Three possessory actions distinguished from each other******
Accion Interdictal Accion Publiciana Accion Reivindicato-ria
Summary action for the A plenary action for the recovery of An action for the
recovery of physical the real right of POSSESSION when recovery of
POSSESSION where the the dispossession has lasted for OWNERSHIP, which
dispossession has not lasted more than 1 year. necessarily includes the recovery
for more than 1 year. of possession.
All cases of forcible entry and RTC has jurisdiction if the value of same as publiciana.
unlawful detainer irrespective of the property exceeds Php 20,000 or
the amount of damages or Php 50,000 in Metro Manila. MTC has
unpaid rentals sought to be jurisdiction if the value of the property
recovered should be brought to does not exceed the above
the MTC. amounts*****
674
[] Bar 2008: Ben sold a parcel of land to Del with right to repurchase within 1 year. Ben
remained in possession of the property. When Ben failed to repurchase the same, title was
consolidated in favor of Del. Despite demand, Ben refused to vacate the land, constraining Del to file a
complaint for unlawful detainer. In his defense, Ben averred that the case should be dismissed because
Del had never been in possession of the property. Is Ben correct?
A: No. ******In an action for unlawful detainer, it is not required that the plaintiff be in
prior physical possession of the land subject of the action. In this action by the vendee a retro
against a vendor a retro who refused to vacate the property even after title has been consolidated in
the vendee, the latter, in contemplation of law, steps into the shoes of the vendor and succeeds to
his rights and interest (Pharma Industries Inc. v. Hon. Pajarillaga, G.R. No. L-53788, October 17,
1980).
3. Rule that should govern the proceedings of accion interdictal

*GR: Ejectment cases are summary proceedings intended to provide an
expeditious means of protecting actual possession or right to possession of
property.
*XPN: When the decision of the MTC is appealed to the RTC, the
applicable rules are those of the latter court (Refugia v. CA, G.R. No. 118284, July
5, 1996).
*NB: Ejectment suits can be maintained with respect to all kinds of land,
but ****agricultural lands under tenancy are now subject to the land reform
laws, and cases arising thereunder are within the jurisdiction of Regional Trial
Court acting as Special Agrarian Court (Regalado, 2010).
c) How to determine jurisdiction in accion publiciana, accion

reivindicatoria and accion interdictal
1. The actions of forcible entry and unlawful detainer are within the exclusive
and original jurisdiction of the MTC, MeTC and MCTC (Sec. 33(2), BP 129;
RA 7691) and shall be governed by the rules on summary procedure
**irrespective of the amount of damages or rental sought to be recovered
(Sec. 3, Rule 70) and which are required to be brought within one year from the
date of actual entry, in case of forcible entry, and from the date of last demand, in
case of unlawful detainer (Javier v. Veridiano II, G.R. No. L-48050, October 10,
1994).
*NB: The amount of rents and damages claimed does not affect jurisdiction
of the MTCs because the same are only incidental or accessory to the main action
(Lao Seng Hian v. Lopez, G.R. No. L-1950, May 16, 1949).
2. In case of accion publiciana and accion reivindicatoria:
a. RTC has jurisdiction if the value of the property exceeds Php 20,000 or
exceeds Php 50,000 in Metro Manila.
b. Otherwise, it is the MTC.
3. Effect of the pendency of an action involving ownership on an action for
forcible entry and unlawful detainer: It does **not bar the filing of an ejectment
suit, nor suspend the proceedings. *****The underlying reason for this rule is to
prevent the defendant from trifling with the summary nature of an ejectment
suit by the simple expedient of asserting ownership over the disputed property
(Tecson v. Gutierrez, G.R. No. 152978, March 4, 2005).
****Ejectment suits are not suspended or barred by other actions
(Wilson Auto Supply Corp. v. CA, G.R. No. 97637, April 10, 1992).
d) Who may institute the action and when; against whom the action may be
maintained
1. Who may institute the action
a. A person deprived of the possession of any land or building by force,
intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee; or
b. Other persons against whom the possession of any land or building is

unlawfully withheld after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor, vendee, or other person (Sec.
1, Rule 70).
2. Lessor to proceed against lessee only after demand: Unless otherwise stipulated,
such action by the lessor shall be commenced **only after demand to pay or
comply with the conditions of the lease and to vacate is made upon the lessee,
or by serving written notice of such demand upon the person found on the
premises if no person be found thereon, and the lessee fails to comply therewith
after 15 days in the case of land or **5 days in the case of buildings (Sec. 2,
Rule 70).
e) Pleadings allowed
1. The only pleadings allowed to be filed are the complaint, compulsory
counterclaim and cross-claim pleaded in the answer, and the answers thereto. All
pleadings shall be VERIFIED (Sec. 4, Rule 70).
2. **Within 10 days from service of summons, the defendant shall file his
answer to the complaint and serve a copy thereof on the plaintiff.
a. Affirmative and negative defenses not pleaded therein shall be
deemed waived, except lack of jurisdiction over the subject matter.
b. Cross-claims and compulsory counterclaims not asserted in the
answer shall be considered barred.
c. The answer to counterclaims or cross-claims shall be served and filed
within 10 days from service of the answer in which they are pleaded (Sec. 6, Rule
70).
f) Action on the complaint

*The court may, from an examination of the allegations in the complaint and
such evidence as may be attached thereto, ***dismiss the case outright on any
of the grounds for the dismissal of a civil action which are apparent therein. If no
ground for dismissal is found, it shall forthwith issue summons (Sec. 5, Rule 70).
g) When demand is necessary

1. Unless there exists a stipulation to the contrary, an unlawful detainer case
shall be *****commenced only after the demand to pay or comply with the
conditions of the lease and to vacate is made upon the lessee (Sec. 2, Rule 70).
The requirement for a demand implies that the MERE FAILURE of the
occupant to pay rentals or his failure to comply with the conditions of the lease
does not ipso facto render his possession of the premises unlawful.
2. *****What constitutes a demand in unlawful detainer
a. To pay and to vacate – If the suit is based on defendant’s failure to pay the
rentals agreed upon;
b. To comply and to vacate – If suit is predicated upon the defendant’s non-

compliance with the conditions of the lease contract (Riano, 2012).
*****The notice giving the lessee the alternative either to pay the increased
rental or otherwise vacate the land is not the demand contemplated by the
Rules of Court in unlawful detainer cases.675 When after such notice, the lessee
elects to stay, he thereby merely assumes the new rental and cannot be
ejected until he defaults in said obligation and necessary demand is first made
(Peñas, Jr. v.Court of Appeals, G.R. No. 112734, July 7, 1994).
3. Form of demand: The demand may be in the form of a WRITTEN NOTICE
served upon the person found in the premises. The demand may also be made by
POSTING a written notice on the premises if no person can be found thereon (Sec.
2, Rule 70). It has been ruled, however, that the *****demand upon a tenant
may be ORAL (Jakihaca v. Aquino, 181 SCRA 67). Sufficient evidence must be
adduced to show that there was indeed a demand like testimonies from disinterested and
unbiased witnesses.
4. *****Prior demand in unlawful detainer not required (TRID)
a. Where the purpose of the action is to terminate the lease by reason of
expiry of its term;676
b. Where the purpose of the suit is not for ejectment but for the
reinforcement of the terms of the contract; or
c. When the defendant is not a tenant but a mere intruder.
d. When there is stipulation dispensing with a demand (Art. 1169, NCC;
Sec. 2, Rule 70).
675
Which of the following renders a complaint for unlawful detainer deficient? (2011 BAR)
(A) The defendant claims that he owns the subject property.
(B) The plaintiff has tolerated defendant’s possession for 2 years before demanding that he vacate it.
(C) The plaintiff’s demand is for the lessee to pay back rentals or vacate.
(D) The lessor institutes the action against a lessee who has not paid the stipulated rents.
676
But see this bar problem: Q: On 10 January 1990, X leased the warehouse of A under a lease
contract with a period of five years. On 08 June 1996, A filed an unlawful detainer case against X
without a prior demand for X to vacate the premises.
A. Can X contest his ejectment on the ground that there was no prior demand for him to
vacate the premises? Yes, X can contest his ejectment on the ground that there was no prior demand
to vacate the premises. (Sec. 2 of Rule 70; Casilan vs. Tomassi, 10 SCRA 261; Lesacaus. Cuevas, 125
SCRA 335). [TOM: demand is needed because it is not merely to end the expired lease term—it’s
almost a year since it expired!]
B. In case the Municipal Trial Court renders Judgment in favor of A, is the Judgment
immediately executory? (1997 Bar Question) Yes, because the Judgment of the Municipal Trial Court
against the defendant X is immediately executory upon motion unless an appeal has been
perfected, a supersedeas bond has been filed and the periodic deposits of current rentals, if any, as
determined by the Judgment will be made with the appellate court. (Sec. 8 of former Rule 70; Sec. 19
of new Rule 70).
Alternative Answer:(a) Yes, X can contest his ejectment on the ground that since he continued
enjoying the thing leased for fifteen days after the termination of the lease on January 9, 1995 with the
acquiescence of the lessor without a notice to the contrary, there was an implied new lease. (Art.
1670, Civil Code).
5. Rule in case of TACITA RECONDUCCION in relation to unlawful detainer:

Under Art. 1670 of NCC, if at the end of lease, the lessee continues to enjoy
the property leased **for 15 days with consent of the lessor, and no notice to
the contrary has been given, it is understood that there is an IMPLIED new
lease. When there is tacit reconduccion, the lessee cannot be deemed as
unlawfully withholding the property. There is **no unlawful detainer (Riano,
2012).
h) Preliminary injunction and preliminary mandatory injunction

1. ******Remedy of the plaintiff in order to obtain possession of the premises
DURING the pendency of an action: The plaintiff may, ****within 5 days from
filing of the complaint file a motion in the same action for the issuance of a
writ of PRELIMINARY MANDATORY INJUNCTION to RESTORE him
his possession. This motion shall be resolved within 30 days from its filing (Sec.
15, Rule 70; Riano, 2012).
[] Section 15. Preliminary injunction. — The court may grant preliminary
injunction, in accordance with the provisions of Rule 58 hereof, to prevent the
defendant from committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry or unlawful detainer
may, within five (5) days from the filing of the complaint, present a motion in
the action for forcible entry or unlawful detainer for the issuance of a writ of
preliminary mandatory injunction to restore him in his possession. The court shall
decide the motion within thirty (30) days from the filing thereof.
*****NB: Art. 539 NCC says 10 days for FE. [] Art. 539. Every possessor
has a right to be respected in his possession; and should he be disturbed therein
he shall be protected in or restored to said possession by the means established by
the laws and the Rules of Court.
A possessor deprived of his possession through forcible entry may within
ten days from the filing of the complaint present a motion to secure from the
competent court, in the action for forcible entry, a writ of preliminary mandatory
injunction to restore him in his possession. The court shall decide the motion
within thirty (30) days from the filing thereof.
2. Grant of injunction while the case is pending: The court may grant preliminary
injunction, in accordance with the provisions of Rule 58 (Preliminary Injunction),
to prevent the defendant from committing further acts of dispossession
against the plaintiff. (Sec. 15, Rule 70).
3. If judgment is appealed to the Regional Trial Court, said court may issue a
writ of preliminary mandatory injunction to restore the plaintiff in possession
if the court is satisfied that the defendant's appeal is frivolous or dilatory or that
the appeal of the plaintiff is prima facie meritorious (Sec. 20, Rule 70).
i) Resolving defense of ownership

1. Determination of the issue of ownership in forcible entry and unlawful
detainer cases: In cases where defendant raises the question of ownership677 in

the pleadings and the question of possession cannot be resolved without deciding the issue of
ownership, the *****court may proceed and resolve the issue of ownership but
ONLY FOR THE PURPOSE OF DETERMINING THE ISSUE OF
POSSESSION. However, the disposition of the issue of ownership is not final
as it may be the subject of separate proceeding specifically brought to settle
the issue (De la Rosa v. Roldan, G.R. No. 133882, September 5, 2006).
2. The **only issue involved in ejectment proceedings is as to who is entitled to
the physical or material possession of the premises, that is, POSSESSION
DE FACTO AND NOT POSSESSION DE JURE (Regalado, 2010).
3. Judgment in forcible entry and unlawful detainer cases ****NOT conclusive
as to the title to the property: The judgment rendered in an action for forcible
entry or detainer is CONCLUSIVE ONLY AS TO POSSESSION of the
property. Said judgment does not bind the title or affect the ownership of the
land or building. A distinct and separate action between the same parties
respecting title to the land or building may be had (Sec. 18, Rule 70).
*The assertion by the defendant of ownership over the disputed property
does not serve to divest the inferior court of its jurisdiction. The **defendant
cannot deprive the court of jurisdiction by merely claiming ownership of the
property involved (Rural Bank of Sta. Ignacia v. Dimatulac, 401 SCRA 742; Perez
v. Cruz, 404 SCRA 487).
4. Binding of Judgment
*GR: Judgment in an ejectment case is ****binding only upon the parties
properly impleaded and given an opportunity to be heard.
****XPNs: It becomes binding on anyone who has not been impleaded
in certain instances as in the following:
a. A sublessee is bound by the judgment against the lessee because his
right to the premises is merely subsidiary to that of the lessee;
b. A guest or a successor in interest, the members of the family of the
lessee or his servants and employees are likewise bound by the judgment even if
not impleaded in the suit for ejectment;
677
In an illegal detainer case the Municipal Trial Court ruled in favor of plaintiff- lessor who, not being
satisfied with the increase of rentals granted him by the court, appealed praying for further increase
thereof. Defendant-lessee did not appeal.
a) Can plaintiff-lessor, as appellant, move for execution pending appeal? Explain. Yes, if
defendant fails to pay or deposit the amount of rentals adjudged by the court within the reglementary
period. (City of Manila vs. CA, 149 SCRA 143)
b) Can defendant-lessee, as appellee, validly resist the immediate execution of the judgment?
Explain. Yes, as long as he pays or deposits the amount of rental adjudged.
[c] In his appellee's brief, defendant-lessee not only controverted the issue on rentals raised by
plaintiff-lessor but also assailed the judgment of the trial court on the ground that the same was
totally contrary to the admitted evidence showing him to be the owner of the property entitled to
possession of the premises. Can the appellate court consider the issue of ownership raised by the
appellee? Discuss fully. *****No, because a lessee he is estopped from raising the question of
ownership. (Art. 1456, Civil Code; Sec. 2(b), Rule 131; Fije vs. CA, 233 SCRA 587)
c. Trespassers, squatters or agents of the defendant fraudulently

occupying the property to frustrate the judgment; and
d. Transferees pendente lite and other privies of the defendant (Riano,
2012).
5. The plaintiff, in ejectment cases, is entitled to DAMAGES caused by his loss
of the use and possession of the premises, **but not for damages caused on
the land or building, which latter items of damages should be recovered by
plaintiff, if he is the owner, in an ORDINARY ACTION (Santos v. Santiago, 38
Phil. 575). However, it has been held that plaintiff can recover from defendant
**liquidated damages stipulated in the lease contract (Gozon v. Vda. De
Barrameda, 11 SCRA 376).
j) How to stay the immediate execution of judgment

1. ******GR: As a rule, judgment of the MTC against the defendant in ejectment
proceedings is IMMEDIATELY EXECUTORY.
*XPN: However in order *****to STAY the immediate execution of
judgment defendant must take the following steps:678
a. Perfect an appeal (in the same manner as in ordinary civil actions, Rule
40);
b. File a SUPERSEDEAS BOND to pay for the rents, damages and
costs accruing down to the time of the judgment appealed from679; and
678
Q: Mike was renting an apartment unit in the building owned by Jonathan. When Mike failed
to pay six months’ rent, Jonathan filed an ejectment suit. The Municipal Trial Court (MTC)
rendered judgment in favor of Jonathan, who then filed a motion for the issuance of a writ of
execution. The MTC issued the writ. (2009 Bar Question)
[a] How can Mike stay the execution of the MTC judgment? Explain. (2%) SUGGESTED
ANSWER: Execution shall issue immediately upon motion, unless Mike (a) perfects his appeal to
the RTC, (b) files a sufficient supersedeas bond to pay the rents, damages and costs accruing up
to the time of the judgment appealed from, and (c) deposits monthly with the RTC during the
pendency of the appeal the amount of rent due from time to time (Rule 70, Sec. 19).
[b] Mike appealed to the Regional Trial Court (RTC), which affirmed the MTC decision. Mike
then filed a petition for review with the Court of Appeals (CA). The CA dismissed the petition on
the ground that the sheriff had already executed the MTC decision and had ejected Mike from the
premises, thus rendering the appeal moot and academic. Is the CA correct? Reasons. (3%)
SUGGESTED ANSWER: NO, the Court of Appeals is not correct. The dismissal of the appeal is
wrong, because the execution of the RTC judgment is only in respect of the eviction of the
defendant from the leased premises. Such execution pending appeal has no effect on the merits of
the ejectment suit which still has to be resolved in the pending appeal. Rule 70, Sec. 21 of the Rules
provides that *****the RTC judgment against the defendant shall be immediately executory,
“without prejudice to a further appeal” that may be taken therefrom [Uy v. Santiago, 336 SCRA 680
[2000]).
679
BAR 2017: Q: Judgment was rendered against defendant Jaypee in an action for unlawful detainer.
The judgment ordered Jaypee to vacate and to pay attorney's fees in favor of Bart, the plaintiff. To
prevent the immediate execution of the judgment, would you advise the posting of a supersedeas bond as
counsel for Jaypee? Explain your answer briefly. SUGGESTED ANSWER: No, as counsel for Jaypee
I would not advise the posting of a supersedeas bond. Under the R70, a supersedeas bond is
c. DEPOSIT PERIODICALLY with the RTC, during the pendency of

the appeal, the adjudged amount of rent due under the contract or if there be no
contract, the reasonable value of the use and occupation of the premises (Sec.
19, Rule 70).680
*****The order for the issuance of a writ of execution to immediately
enforce the judgment of the inferior court is INTERLOCUTORY AND NOT
APPEALABLE. Immediate execution is proper if the judgment is in favor of
the plaintiff. If the judgment is in favor of the defendant with an award for
damages under his counterclaims, such judgment is not immediately executory
and can be executed only after the lapse of the 15-day period to appeal without
the plaintiff having perfected his appeal (Regalado, 2010).
2. *****Supersedeas bond NOT required—Where the:
a. Monetary award in the judgment of the inferior court has been
deposited with the court; or
b. Judgment of the lower court did not make findings with respect to
any amount in arrears, damages, or costs against the defendant.
*****No need for supersedeas bond if the claim is for attorney’s fees
only. It applies if there is claim for payment of rental.
3. Rules of **res judicata and conclusiveness of judgment apply in ejectment
case: But subject to the qualification that judgment is conclusive with respect to
the right of possession under and by virtue of a contract the existence of which has
been proved in said ejectment suit (Penas v. Tuason, 22 Phil 303).
k) Summary procedure, prohibited pleadings

*transferred to Rules on Summary Procedure (Part II of the notes)681
necessary to prevent immediate execution only if the judgment awarded rents, damages, and
costs. Here the judgment only ordered Jaypee to vacate and to pay attorney’s fees. A supersedeas
bond is not required to cover attorney’s fees. [Once v. Gonzalez, 31 March 1977]. Hence the
posting of a supersedeas bond is not required. (Jurist Review Center, Inc.)
680
In an illegal detainer case the Municipal Trial Court ruled in favor of plaintiff- lessor who, not being
satisfied with the increase of rentals granted him by the court, appealed praying for further increase
thereof. Defendant-lessee did not appeal.
a. Can plaintiff-lessor, as appellant, move for execution pending appeal? Explain. Yes, if
defendant fails to pay or deposit the amount of rentals adjudged by the court within the
reglementary period. (City of Manila vs. CA, 149 SCRA 143)
b. Can defendant-lessee, as appellee, validly resist the immediate execution of the
judgment? Explain. Yes, as long as he pays or deposits the amount of rental adjudged.
681
BAR 2017: Q: Laura was the lessee of an apartment unit owned by Louie. When the lease expired,
Laura refused to vacate the property. Her refusal prompted Louie to file an action for unlawful
detainer against Laura who failed to answer the complaint within the reglementary period. Louie then
filed a motion to declare Laura in default. Should the motion be granted? Explain your answer.
SUGGESTED ANSWER: No, a Motion to declare the defendant in default is a prohibited motion in
ejectment cases pursuant to S13 (8) R70. (Jurist Review Center, Inc.)
Appeal Procedure:
*****Appeal to the RTC the decision of the MTC; RTC shall decide on the basis
of the entire record of the proceedings in the MTC, plus memoranda/briefs
submitted or required by the RTC. Hence, RTC cannot conduct a trial de novo; it
cannot order the conduct of a relocation and verification survey.682
———————————————————————————————
682
The RTC, in an appeal of the judgment in an ejectment case, shall not conduct a rehearing or trial de
novo [Section 18, Rule 70]. ******The judgment is conclusive only on possession; not conclusive in
actions involving title or ownership. The MTC judgment or final order shall be appealable to the
appropriate RTC which shall decide the same on the basis of the entire record of the proceedings
had in the court of origin and such memoranda and/or briefs as may be submitted by the
parties or required by the RTC.” Hence, *****RTC violated the foregoing rule by ordering the
conduct of the relocation and verification survey "in aid of its appellate jurisdiction" and by
hearing the testimony of the surveyor, for its doing so was tantamount to its holding of a trial
de novo. The violation was accented by the fact that the RTC ultimately decided the appeal based
on the survey and the surveyor’s testimony instead of the record of the proceedings had in the
court of origin. Manalang vs Bacani (2015)
3.19.13. Contempt [Rule 71]
a) Kinds of contempt 590

b) Purpose and nature of each 591
c) Remedy against direct contempt; penalty 591
d) Remedy against indirect contempt; penalty***** 592
e) How contempt proceedings are commenced 592
f) Acts deemed punishable as indirect contempt 596
g) When imprisonment shall be imposed 596
h) Contempt against quasi-judicial bodies 597
———————————————————————————————
PRELIMINARIES ON CONTEMPT
1. It is **DISOBEDIENCE to the court by acting in opposition to its authority,
justice and dignity. It signifies not only willful disregard or disobedience of court’s
(lawful683) orders, but such conduct as tends to bring the authority of court and
administration of law into DISREPUTE or in some manner to impede the due
administration of justice (Regalado v. Go, G.R. No. 167988, Febraury 6, 2007;
Riano, 2012).
2. Functions of contempt proceedings:
a. Vindication of public interest684 by punishment of contemptuous conduct;
b. Coercion to compel the contemnor to do what the law requires him to
uphold the power of the court, and also to secure the rights of the parties to a suit
awarded by the court (Ibid.).
683
Q: In an action for injunction and damages, to plaintiff applied for a temporary restraining order (or
“TRO”) and preliminary injunction. Upon filing of the complaint, the court issued a TRO and set the
application for preliminary injunction for hearing. As the 20-day lifetime (January 3 to 23, 1993) of the
TRO was about to expire, the court issued an order dated January 21. 1993 extending the effectivity of
the TRO for another twenty days (January 24, 1993 to February 13. 1993). On March 5, 1993, the
court, after hearing, denied the application for preliminary injunction. Supposing that on January 28,
1993, the defendant committed an act in violation of the TRO, is he guilty of indirect contempt?
Explain. (1993 Bar Question) Answer:
No, because in order to constitute indirect contempt, the writ disobeyed must be lawful. In
this case, the court had no authority to extend the effectivity of the TRO for another twenty days.
Consequently, the defendant did not commit indirect contempt by committing an act on January 28,
1993 in violation of TRO. The extension was null and void. (Carbungco us. Court of Appeals, 181
SCRA 313).
684
Ramon witnessed the commission of a crime but he refuses to testify for fear of his life despite a
subpoena being served on him. Can the court punish him for contempt? (2011 BAR)
(A) No, since no person can be compelled to be a witness against another.
(B) Yes, since public interest in justice requires his testimony.
(C) No, since Ramon has a valid reason for not testifying.
(D) Yes, since litigants need help in presenting their cases.
a) Kinds of contempt
1. According to nature (depending on the nature and effect of the contemptuous act)
a. Civil
b. Criminal
2. According to the manner of commission
a. Direct
b. Indirect
b) Purpose and nature of each

1. Nature of contempt power: The power to punish for contempt is
INHERENT in all courts; its existence is essential to the preservation of
order in judicial proceedings and to the enforcement of judgments, orders and
mandates of the courts, and, consequently, to the due administration of justice.
2. Criminal contempt vs. Civil Contempt
[] If the *****purpose is to punish, it is criminal in nature but if to
compensate, then it is civil.
Criminal Contempt Civil Contempt
It is a conduct directed against the authority It is the failure to do something ordered to be

and dignity of the court or a judge acting done by a court or a judge for the benefit of the
judicially; it is a conduct obstructing the opposing party therein and is therefore, an offense
administration of justice which tends to bring against the party in whose behalf the violated
the court into disrepute or disrespect order was made.
Purpose is to vindicate the authority of the Purpose is to provide a remedy for an injured suitor
court and protect its outraged dignity. and to coerce compliance with an order for the
preservation of the rights of private persons
Intent is necessary Intent is not necessary
State is the real prosecutor Instituted by the aggrieved party or his successor
or someone who has pecuniary interest in the right to be
protected
Proof required is proof beyond reasonable Proof required is more than mere preponderance
doubt. of evidence
If accused is acquitted, there can be no appeal. If judgment is for respondent, there can be an appeal
c) Remedy against direct contempt; penalty

d) Remedy against indirect contempt; penalty*****
DIRECT CONTEMPT INDIRECT CONTEMPT
Definition A person guilty of misbehavior in the Committed by a person who does the
presence of or so near a court as to following acts:1. Disobedience or resistance
obstruct or interrupt the proceedings to a lawful writ, process, order or judgment of a court;
before the same, including disrespect 2. Any abuse of or any unlawful
toward the court, offensive personalities interference with the processes or proceedings of a
toward others, or refusal to be sworn or court not constituting direct contempt; and 3. Any
to answer as a witness, or to subscribe improper conduct tending, directly or
an affidavit or deposition when lawfully indirectly, to impede, obstruct or degrade the
required to do so (Sec. 1, Rule 71). administration of justice (Siy vs. NLRC 2005).
Location Committed in the presence of or so Not committed in the presence of the court.
near a court.
Nature Summary in nature Punished after being charged and heard
How done Contempt in facie curiae Constructive contempt
Grounds 1. Misbehavior in the presence of or so 1. Misbehavior of an officer of a court in the
*******
near a court as to obstruct or interrupt performance of his official duties or in his official
the proceedings; 2. Disrespect towards transactions; 2. Abuse or any unlawful
the court; interference with the proceedings not constituting
3. Offensive personalities toward others; direct contempt; 3. Disobedience of or
or resistance to a lawful writ, process, order, or
4. Refusal to be sworn or to answer as a judgment of a court or unauthorized
witness, or to subscribe an affidavit or intrusion to any real property after being
deposition when lawfully required to do ejected; 4. Failure to obey a subpoena duly
so (Sec. 1, Rule 71). served; 5. **Assuming to be an attorney or
an officer of the court without authority; 6.
Rescue or attempted rescue, of a person or
property in the custody of an officer; 7.
**Any improper conduct tending to
degrade the administration of justice (Sec.
3, Rule 71).
Penalty The penalty for direct contempt The punishment for indirect contempt
depends upon the court to which the depends upon the level of the court against
act was committed: 1. If the act which the act was committed:
constituting direct contempt was 1. Where the act was committed against an
committed against an RTC or a court of RTC or a court of equivalent or higher rank,
equivalent or higher rank, the penalty is a he may be punished by a fine not exceeding
fine not exceeding 2,000 pesos or Php 30,000 or imprisonment not
imprisonment not exceeding 10 days, exceeding 6 months, or both; 2. Where the
or both; act was committed against a lower court, he may
2. If the act constituting direct contempt be punished by a fine not exceeding 5,000
was committed against a lower court, the pesos or imprisonment not exceeding one
penalty is a fine not exceeding 200 pesos month, or both. Aside from the applicable
or imprisonment not exceeding 1 day, penalties, *****if the contempt consists in the
or both (Sec. 1, Rule 71); 3. If the violation of a writ of injunction, TRO or status quo
contempt consists in the refusal or order, he may also be ordered to make
omission to do an act which is yet complete restitution to the party injured
within the power of the respondent to by such violation of the property involved or
perform, he may be imprisoned by such amount as may be alleged and proved
order of the court concerned until he (Sec. 7, Rule 71); 3. Where the act was
performs it. committed against a person or entity
exercising quasi-judicial functions, the
penalty imposed shall depend upon the
provisions of the law which authorizes a
penalty for contempt against such persons or
entities.
Remedy The person adjudged in direct contempt **Appeal (by notice of appeal). The person
******
by any court may **not appeal adjudged in indirect contempt may appeal
therefrom, but may avail himself of the from the judgment or final order of the court
remedies of SCA of certiorari or in the same manner as in criminal cases.
prohibition directed against the court, The appeal will not however have the effect
which adjudged him in direct contempt of suspending the judgment if the person
(Sec. 2, Rule 71). Pending the resolution adjudged in contempt does not file a bond in an
of the petition for certiorari or amount fixed by the court from which the
prohibition, the execution of the appeal is taken. This bond is conditioned
judgment shall be suspended, provided upon his performance of the judgment or
such person files a bond fixed by the final order if the appeal is decided against him
court which rendered the judgment and (Sec. 11, Rule 71).
conditioned that he will abide by and
perform the judgment should the
petition be decided against him (Sec. 2,
Rule 7; Canada v. Suerte, 474 SCRA 379).
Commence *****No formal proceeding is required 1. May be initiated motu proprio by the court
ment of
Contempt to cite a person in direct contempt. The against which the contempt was committed
Proceeding court against which the contempt is by order or other formal charge by the court
directed may summarily adjudge a requiring the respondent to show cause why
person in direct contempt (Sec. 1 Rule he should not be punished for contempt; or
71; Encinas v. National Bookstore Inc., (This procedure applies only when the
G.R. No. 162704, July 28, 2005). indirect contempt is committed against a
court oe judge possessed and clothed with
vs. Indirect contempt, where one has to contempt powers); 2. By a verified petition
file a Petition with supporting particulars and certified true
copies of the necessary documents and
papers (independent action; must comply
with requirements of an initiatory pleadings) (Sec. 4,
Rule 71). If the contempt charges arose out
of or are related to a principal action pending
in the court, the petition for contempt shall
allege that fact but said petition shall be
docketed, heard and decided separately,
unless the court in its discretion orders the
consolidation of the contempt charge and the
principal action for joint hearing and decision
(Sec. 4, Rule 71).
[] Bar areas on direct vs. indirect contempt

1. DIRECT vs. INDIRECT: Direct contempt is a contumacious act done facie
curiae and may be punished summarily without hearing. Indirect or
constructive contempt, in turn, is one perpetrated outside of the sitting of the
court. The use of falsified and forged documents is a contumacious act.
However, it constitutes INDIRECT CONTEMPT NOT DIRECT
CONTEMPT.685
2. DIRECT:
a. An order of DIRECT contempt is not immediately executory or
685
[] Q: Ray, through Atty. Velasco, filed a complaint for quieting of title against Chiz. Chiz,
however, interposed the defense that the documents relied upon by Ray and Atty. Velasco were forged
and falsified. Finding that the said documents were indeed forged and falsified, Judge Victoria cited Ray and
Atty. Velasco for direct contempt and ordered them to serve 10 days of detention at the Municipal
Jail. Ray and Atty. Velasco filed a motion for bail and a motion to lift the order of arrest. But they
were denied outright by Judge Victoria. Is Judge Victoria correct?
A: No. ******Direct contempt is a contumacious act done facie curiae and may be
punished summarily without hearing. Indirect or constructive contempt, in turn, is one
perpetrated outside of the sitting of the court. Here *****the use of falsified and forged
documents is a contumacious act. However, it constitutes INDIRECT CONTEMPT NOT
DIRECT CONTEMPT. The imputed use of a falsified document, more so where the falsity of the
document is not apparent on its face, merely constitutes indirect contempt, and as such is
subject to such defenses as the accused may raise in the proper proceedings. Thus, following Sec. 3,
Rule 71, a ***contemnor may be punished only after a charge in writing has been filed, and an
opportunity has been given to the accused to be heard by himself and counsel.
enforceable. The contemner must be afforded a reasonable remedy to

extricate or purge himself of the contempt. A person adjudged in direct
contempt by any court may not appeal therefrom, but may avail himself of the
remedies of certiorari or prohibition. The execution of the judgment shall be
suspended pending resolution of such petition, provided such person files a
bond fixed by the court which rendered the judgment and conditioned that he
will abide by and perform the judgment should the petition be decided against
him.686
b. A pleading containing derogatory, offensive & malicious statements
makes the pleader liable for direct contempt.687
3. INDIRECT:
a. It is initiated through a verified petition. Note that a writ of execution is
addressed to a sheriff. Hence, the defendant who does not want to obey the writ is
not guilty of contempt, since the order of the court is not directed to him. Hence,
a Rule 65 petition is in order.688
686
[] Q: Lawyer Mendoza, counsel for the accused in a criminal case, was cited for direct contempt by
Judge Tagle and was sentenced to 10 days imprisonment. Lawyer Mendoza was placed in prison
immediately. Lawyer Mendoza manifested his readiness to post a bond and to appeal the order by
certiorari to stay its execution but Judge Tagle said that the order is immediately executory. Is Judge
Tagle correct?
A: No. An ****order of DIRECT contempt is not immediately executory or enforceable.
The contemner must be afforded a reasonable remedy to extricate or purge himself of the
contempt. Under Sec. 2, Rule 71, of the Rules of Court, *****a person adjudged in direct contempt by
any court may not appeal therefrom, but may avail himself of the remedies of certiorari or
prohibition. The execution of the judgment shall be suspended pending resolution of such petition,
provided such person files a bond fixed by the court which rendered the judgment and conditioned
that he will abide by and perform the judgment should the petition be decided against him (Tiongco v.
Judge Salao, A.M. No. RTJ-06-2009, July 27, 2006).
687
A person may be charged with direct contempt of court when: (2012 BAR)
a. Apersonre-entersapropertyhewaspreviouslyejectedfrom.
b. Apersonrefusestoattendahearingafterbeingsummonedthereto.
c. He attempts to rescue a property in custodia legis.
d. She writes and submits a pleading containing derogatory, offensive or malicious statements.
688
[] Q: Mr. Sheriff attempts to enforce a Writ of Execution against X, a tenant in a condominium
unit, who lost in an ejectment case. X does not want to budge and refuses to leave. Y, the winning
party, moves that X be declared in contempt and after hearing, the court held X guilty of indirect
contempt. If you were X's lawyer, what would you do? Why? (2012 BAR)
A: If I were X’s lawyer, I would file a petition for certiorari under Rule 65. The judge
should not have acted on Y’s motion to declare X in contempt. The charge of indirect contempt is
intiated through a verified petition (Sec. 4, Rule 71). The writ was not directed to X but to the
sheriff which was directed to deliver the property to Y. As the writ did not command the judgment
debtor to do anything, he cannot be guilty of the facts described in Rule 71 which is
“disobedience of or resistance to a lawful writ, process, order, judgment, or command of any
court.” The proper procedure is for the sheriff to oust X availing of the assistance of peace
officers pursuant to Section 10(c) of Rule 39 (Lipa v. Tutaan, L-16643, September 29, 1983; Medina v.
Garces, L- 25923, July 15, 1980; Pascua v. Heirs of Segundo Simeon, G.R. No. L-47717, May 2, 1988;
Patagan et. al. v. Panis, G.R. No. 55630, April 8, 1988).
b. A charge for indirect contempt committed against an RTC judge may

be commenced through: (2012 BAR) an order of the RTC Judge requiring
respondent to show cause in the same RTC.689
c. After being ousted from the property in litigation, a persons can be held
in indirect contempt if he re-enters the property and forcibly take over
possession.690
e) How contempt proceedings are commenced

1. Court that has jurisdiction:
a. Where the act was committed against a RTC or a court of equivalent or
higher rank, or against an officer appointed by it, the charge may be filed with
such court;
b. Where the act was committed **against a lower court, the charge may be
filed with the RTC in which the lower court is sitting. It may also be filed in lower
court against which the contempt was allegedly committed. The decision of the
lower court is subject to APPEAL to RTC;
c. Where the act was committed against persons or entities exercising quasi-judicial
functions, the charge shall be filed in RTC of the place wherein the contempt
was committed (Sec. 12, Rule 71; Riano, 2009).
2. May a non-party be held for contempt?
*GR: No.
*XPN: If he is **guilty of conspiracy with any one of the parties in
violating the court’s orders (Desa Ent., Inc. v. SEC, G.R. No. L-45430, September
30, 1982).
f) Acts deemed punishable as indirect contempt

1. After a charge in writing has been filed, and an opportunity given to the
respondent to comment thereon within such period as may be fixed by the court
and to be heard by himself or counsel, a person guilty of any of the following acts
may be punished for indirect contempt: (see table, supra)
a. Misbehavior an officer of a court in the performance of his official
689
A charge for indirect contempt committed against an RTC judge may be commenced through:
(2012 BAR)
a. A written charge requiring respondent to show cause filed with the Court of Appeals.
b. An order of the RTC Judge requiring respondent to show cause in the same RTC.
c. Verified petition filed with another branch of the RTC.
d. VerifiedpetitionfiledwithacourtofhigherorequalrankwiththeRTC.
690
Q: Suppose that by virtue of an execution of the Judgment in an ejectment case defendant was
successfully ousted from the property in litigation and plaintiff was lawfully placed in possession
thereof, but seven (7) years later defendant re- entered the property and forcibly took over possession,
can plaintiff move that defendant be declared in indirect contempt? Explain. (1995 Bar Question)
Answer: Yes, because the defendant violated Sec. 3(b) of Rule 71 when after being ousted from
the property in litigation and the plaintiff was lawfully placed in possession, he re-enters the property
and forcibly took over possession.
duties or in his official transactions;

b. Disobedience of or resistance to a lawful writ, process, order, or
judgment of a court, including the act of a person who, after being dispossessed or
ejected from any real property by the judgment or process of any court of
competent jurisdiction, enters or attempts or induces another to enter into or
upon such real property, for the purpose of executing acts of ownership or
possession, or in any manner disturbs the possession given to the person adjudged
to be entitled thereto;
c. Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under section 1 of this
Rule;
d. Any improper conduct tending, directly or indirectly, to impede, obstruct,
or degrade the administration of justice;
e. Assuming to be an attorney or an officer of a court, and acting as such
without authority;
f. Failure to obey a subpoena duly served;
g. The rescue, or attempted rescue, of a person or property in the custody of
an officer by virtue of an order or process of a court held by him (Sec. 3, Rule 71).
2. ****Failure by counsel to inform the court of the death of his client
constitutes indirect contempt within the purview of Sec. 3, Rule 71, since it
constitutes an improper conduct tending to impede the administration of
justice.
3. If a person charged with indirect contempt fails to appear on that date after
due notice without justifiable reason, the **court may order his arrest, just like
the accused in a criminal case. The court does not declare the respondent in
default (Riano, 2012).
g) When imprisonment shall be imposed

When the contempt consists in the refusal or omission to do an act which is yet
in the power of the respondent to perform, he may be imprisoned by order of
the court concerned **until he performs it (Sec.8, Rule 71). Indefinite
incarceration may be resorted to where the attendant circumstances are such that
the non-compliance with the court order is an utter disregard of the authority
of the court which has then no other recourse but to use its coercive power.
h) Contempt against quasi-judicial bodies

1. The rules on contempt apply to contempt committed against persons or
entities exercising quasi-judicial functions or in case there are rules for
contempt adopted for such bodies or entities pursuant to law, Rule 71 shall apply
suppletorily.
2. Quasi-judicial bodies that have the power to cite persons for INDIRECT
contempt can *****only do so by initiating them in the proper RTC. It is not
within their jurisdiction and competence to decide the indirect contempt
cases. The RTC of the place691 where contempt has been committed shall
have jurisdiction over the charges for indirect contempt that may be filed (Sec. 12,
Rule 71; LBP v. Listana, G.R. No. 152611, August 5, 2003).
3. Other acts or violations cannot be punished as contumacious conduct by
administrative or quasi-judicial entities **unless the governing law specifically
defines such violation as contempt of court , or it unequivocally authorizes
said official or body to punish contempt, providing at the same time the corresponding
penalty (People v. Mendoza, et al., 92 Phil. 570).
4. City council does NOT have the power to subpoena witness and to punish
non-attendance for contempt: A **city council does not have the power since
there is neither a constitutional nor statutory conferment on it of such powers.
**Unlike Congress whose contempt power is sui generis and inheres in it as a
coordinate branch of the government, no such power can be implied in the
legislative functions delegated to local legislative bodies, especially since the
**contempt power is essentially of a judicial nature (Negros Oriental II
Electric Cooperative, Inc., et al., v. Sangguniang Panlungsod of Dumaguete, et al.,
G.R. No. 72492. November 5, 1987).
———————————————————————————————
REFERENCES
1. UST Notes:692 GN, case lists, Bar Q&A’s, lectures of Dean Riano.
2. Contributions of Lau & Kyle (esp. KPL)
691
Contempt charges made before persons, entities, bodies and agencies exercising quasi-judicial
functions against the parties charged, shall be filed with the Regional Trial Court of the place where the
__________. (2013 BAR)
(A) person, entity or agency exercising quasi-judicial function is located (B) person who committed the
contemptuous act resides
(C) act of contempt was committed
(D) party initiating the contempt proceeding resides
(E) charging entity or agency elects to initiate the action
692
These notes were culled mainly from notes (GN), lectures, outlines, case summaries, etc. provided
to students at the UST Faculty of Civil Law, plus researches and updates by those who write them in
and contribute to their present form. Errors are to be attributed to the main author and he is asking
you to send him whatever you think needs to be corrected at tomlawnotes@gmail.com. Aside from
that, all he requests from you is prayers for him, his family and friends. Yes, seriously, if you are
happy with these notes, please send him prayers, generous prayers, if possible. His favorite prayer is the
Holy Mass, and oh, Rosaries :)

UPDATED 07a TOM Remedial Law Bar Reviewer I

Caricato da

Informazioni sul documento

Titolo originale

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

UPDATED 07a TOM Remedial Law Bar Reviewer I

Caricato da

Copyright:

Formati disponibili

Omnia possum in eo qui me confortat!

TOM Bar Reviewer in Remedial Law I

3.19. Special civil actions (SCA) 31

1.1. Concept of remedial law 3

1.1. Concept of remedial law

REMEDIAL LAW (RL)1

1.2. Substantive law vis-á-vis remedial law

SUBSTANTIVE LAW REMEDIAL LAW

[] *GR: procedural rules generally apply prospectively to pending cases.3

PRINCIPAL SOURCES OF REMEDIAL LAW

THE RULES OF COURT (the Rules)

RULES ON INTERPRETATIONS OF ROC PROVISIONS (1998 Bar)

1. GR: The Rules shall be liberally construed in order to promote their

RULE ON UNIFORM INTERPRETATION

1.3. Rule-making power of the Supreme Court

1.3.1 Limitations on the rule-making power of the Supreme Court

1.3.2. Power of the Supreme Court to amend and suspend procedural

c. A cause not entirely attributable to the fault or negligence of the

OTHER POWERS OF THE SUPREME COURT

1.4. Nature of Philippine courts

1.4.1. Meaning of a court

legislative and executive branches of government (Electromat Manufacturing

1.4.2. Court as distinguished from a judge

It is a tribunal officially assembled Simply an officer of such tribunal (Wagenhorst v. Philadelphia

1.4.3. Classification of Philippine courts

1.4.4. Courts of original and appellate jurisdiction

1.4.5. Courts of general and special jurisdiction

1.4.6. Constitutional and statutory courts

Created by the Constitution: Created by law other than Constitution: CA,

1.4.7. Courts of law and equity

1.4.8. Principle of judicial hierarchy (PJH)4 or Doctrine of JH (DJH)5

the case, in keeping with the *****LADDERIZED SYSTEM OF JUSTICE in

3. Applicability: the principle is applicable when there is CONCURRENT JN

1.4.9. Doctrine of non-interference or doctrine of judicial stability (DJS)

over real property that was levied.7

Conceptual Framework [Riano]

III. Answer [This is a Responsive (not Initiatory) Pleading]

IV. Pre-Trial (PT) [R18]

VI. Judgment [JT, R36]

VII. Post-Judgment Remedies or Remedies against the judgment

VIII. Execution & Satisfaction of Judgment [R39]

CONCEPT OF JURISDICTION (JN) 18

CONCEPT OF JURISDICTION (JN)

whenever it is necessary to decide the question of possession in an ejectment case. (Serreno v.

HOW TO DETERMINE JURISDICTION

2.1 JN over the parties

2.1.1. How jurisdiction over the plaintiff is acquired

ACQUIRING JN OVER THE PLAINTIFF17

ACQUIRING JN OVER THE DEFENDANT

*****not essential in actions in rem or quasi in rem as long as the court

Voluntary appearance: equivalent to service of summons

the consequent submission of one’s person to the jurisdiction of the court.

manner summons was served, that will not be regarded as voluntary

All matters related to Docket Fees

responsibility of the Clerk of Court or his duly authorized deputy to

2.2 JN over the subject matter

2.2 1. Meaning of jurisdiction over the SUBJECT MATTER

2. Jurisdiction over the subject matter v. Jurisdiction over the person

2.2 2. Jurisdiction versus the exercise of jurisdiction

2.2 3. Error of jurisdiction as distinguished from error of judgment

2.2 4. How jurisdiction is conferred and determined

2.2 5. Doctrine of primary jurisdiction (DPJ)

Adjudication Board (DARAB) (Spouses Jesus Fajardo and Emer Fajardo v.