Professional Documents
Culture Documents
Civil Procedure Bar Review Guide May 2014
Civil Procedure Bar Review Guide May 2014
CIVIL PROCEDURE
Bar Review Guide 2014
I. General Principles
A. Concept of Remedial Law
Procedure in general
The means whereby the court reaches out to restore rights and remedy wrongs, and includes
every step which may be taken from beginning to the end of a case (Maritime Company of the
Philippines vs. Paredes, 19 SCRA 569 [1967]).
Kinds of procedure
1. As to purpose
a. civil procedure – refers to the enforcement of a private right
b. criminal procedure – refers to the prosecution of an offense
2. As to formality
a. formal procedure – requires a set and definite process to be observed in
order that the remedy can issue
b. summary procedure – where remedy sought is granted without delay, and
without the necessity of observing the procedure fixed for ordinary cases
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
(c) The rules shall not diminish, increase, or modify substantive rights. (Art. VIII, Sec.
5[5], Constitution).
In determining whether a rule prescribed by the Supreme Court, for the practice and
procedure of the lower courts, abridges, enlarges, or modifies any substantive right, the test
is whether the rule really regulates procedure, that is, the judicial process for enforcing rights
and duties recognized by substantive law and for justly administering remedy and redress for
a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If
the rule creates a right such as the right to appeal, it may be classified as a substantive
matter; but if it operates as a means of implementing an existing right then the rule deals
merely with procedure. (Fabian vs. Desierto, G.R. No. 129742, September 16, 1998, 295
SCRA 40.)
Test – whether rule really regulates procedure, the judicial process for enforcing rights and
duties recognized by substantive law and for justly administering remedy and redress for a
disregard or infraction thereof.
If it takes away a vested right, it is not procedural. If the rule creates a right such as the
right to appeal – substantive.
Inherent power of SC to SUSPEND its own rules or to EXEMPT a particular case from the
operation of said rules (pro hac vice) whenever demanded by justice (Rep. vs. CA, 107 SCRA
504 [1981]; De la Cruz vs. Court of Appeals, 510 SCRA 103 ).
The right to create rules necessarily carries with it the power to suspend the effectivity of its
creation.
The power to suspend or even disregard rules can be so pervasive and compelling as to
alter even that which the Court itself had already declared to be final (Apo Fruits Corp. vs. Land
Bank of the Philippines, G.R. No. 164195, October 12, 2010).
A judge is a person who presides over court proceedings, either alone or as part of a panel
of judges. The judge conducts the trial impartially and in an open court. The judge hears all the
witnesses and any other evidence presented by the parties of the case, assesses the credibility
of the parties, and then issues a ruling on the matter at hand based on his or her interpretation
of the law and his or her own personal judgment.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
These courts derive their powers from the Constitution. At the apex is the Supreme Court.
Below the Supreme Court are three tiers of lower-level courts that initially decide
controversies brought about by litigants in the first instance.
a. Supreme Court
b. Court of Appeals
c. Regional Trial Court
d. Municipal Trial Court
2. Special Courts - Tribunals that have limited jurisdiction over certain types of cases or
controversies that special courts can hear are limited only to those that are specifically
provided in the special law creating such special courts. Outside of the specific cases
expressly mentioned in the provisions of the statute creating the special court, these
courts have no authority to exercise any powers of adjudication.
a. Sandiganbayan
b, Court of Tax Appeals
c. Shari’a Court
3. Quasi-Judicial Agencies - Technically, judicial powers pertain to and are exercised only
by courts. However, the Philippine system of government allows administrative agencies
toexercise adjudicatory powers in certain types of controversies, particularly if same
would facilitate the attainment of the objectives for which the administrative agency
hadbeen created. Unlike regular and special courts, quasi-courts do not possess
judicial powers. Instead they possess and in fact, exercise what are termed as quasi-
judicial powers.
b. Court of appellate jurisdiction – one which has power or review over the decisions or
orders of a lower court
1) Regional Trial Court
2) Court of Appeals
3) Supreme Court
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
However, equity does not apply when there is a law applicable to a given case (Smith Bell
Co. vs. Court of Appeals, 267 SCRA 530). It is availed of only in the absence of a law and is
never availed of against statutory law or judicial pronouncements (Velez vs Demetrio, G.R. No.
128576, August 13, 2002).
Rationale: (a) to prevent inordinate demands upon the SC’s time and attention which are
better devoted to those matters within its exclusive jurisdiction, and (b) to prevent further
overcrowding of the SC’s docket.
Thus, although the SC, CA and the RTC have CONCURRRENT jurisdiction to issue writs of
certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such
concurrence does not give the petitioner unrestricted freedom of choice of court forum.
The SC will NOT ENTERTAIN DIRECT RESORT to it unless the redress desired cannot be
obtained in the appropriate courts, and exceptional and compelling circumstances, such as
cases of national interest and of serious implications, justify the extraordinary remedy of writ of
certiorari, calling for the exercise of its primary jurisdiction (Heirs of Bertuldo Hinog vs. Melicor,
455 SCRA 460 [2005]).
The doctrine of judicial stability or non-interference in the regular orders or judgments of a co-
equal court, as an accepted axiom in adjective law, serves as an insurmountable barrier to
the competencia of the Makati court to entertain the habeas corpus case on account of the previous
assumption of jurisdiction by the Cavite court, and the designation of petitioners as guardians ad
litem of the ward. This is based on the policy of peaceful co-existence among courts of the same
judicial plane. ( Panlilio vs. Salonga, G.R. No. 113087, June 27, 1994).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
II. Jurisdiction
“Juris” and “dico” – I speak by the law.
Power or capacity conferred by the Constitution. or by law to a court or tribunal to entertain,
hear and determine certain controversies, and render judgment thereon
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
Jurisdiction is the authority to decide a cause, and not the decision rendered therein. Where
there is jurisdiction over the person and the subject matter, the decision in all other questions
arising in the case is but an exercise of such jurisdiction. The errors which the court may commit
in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an
appeal. The errors raised by petitioners in their petition for annulment of judgment assail the
content of the decision of the trial court and not the court’s authority to decide the suit. In other
words, they relate to the court’s exercise of its jurisdiction, but petitioners failed to show that the
trial court did not have the authority to decide the case. (Tolentino vs. Leviste, 443 SCRA 274
[2004]).
General rule – jurisdiction over the subject matter or nature of the action may be challenged
AT ANY STAGE of the proceedings.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
Party assailing jurisdiction of court must raise it at the first opportunity. While an order or
decision rendered without jurisdiction is a total nullity and may be assailed at any stage, a
party’s ACTIVE PARTICIPATION in the proceedings. without questioning the jurisdiction until
anadverse resolution is issued will BAR or ESTOP such party from attacking the court’s
jurisdiction, especially when an adverse judgment has been rendered (Soliven vs. Fastforms
Phils., Inc., 440 SCRA 389 [2004]).
A party cannot invoke the jurisdiction of the court to secure affirmative relief against his
opponent and after failing to obtain such relief, repudiate such jurisdiction (Salva vs. CA, 304
SCRA 632 (1999).This includes the filing of a counterclaim. Such practice cannot be tolerated
for reasons of public policy (Oca vs. CA, 278 SCRA 642 [2002]).
The earliest opportunity of a party to raise the issue of jurisdiction is in a motion to dismiss
filed before the filing or service of an answer. Lack of jurisdiction over the subject matter is a
ground for a motion to dismiss (Sec. 1[b], , Rule 16). If no motion to dismiss is filed, the defense
of lack of jurisdiction may be raised as an affirmative defense in the answer (Sec. 6, Rule 16).
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 not be deemed
waived, except lack of jurisdiction over the subject matter (Sec. 8, Rule 15).
Jurisdiction over the subject matter may be raised at any stage of the proceedings, even
for the first time on appeal (Francel Realty Corporation vs. Sycip, 469 SCRA 424 [2005])
Courts may take cognizance of the issue even if not raised by the parties themselves. No
reason to preclude the CA, for example, from ruling on this issue even if the same had not been
resolved by the trial court (Asia International Auctioneers, Inc. vs. ,G.R. No. 163445, December
18, 2007).
After recognizing the jurisdiction of the trial court by seeking affirmative relief in their
motion to serve supplemental pleading upon private respondents, petitioners are effectively
barred by estoppel from challenging the trial court’s jurisdiction. If a party invokes the jurisdiction
of a court, he cannot thereafter challenge the court’s jurisdiction in the same case. To rule
otherwise would amount to speculating on the fortune of litigation, which is against the policy of
the Court.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
E. Jurisdiction of Courts
1. Supreme Court
A. Original Jurisdiction
1. Exclusive
Petitions for issuance of writs of certiorari, prohibition, and mandamus against the
following:
a. Court of Appeals
b. Commission on Elections En Banc
c. Commission on Audit (Sec. 7, Art. IX-A, 1987 Constitution)
d. Sandiganbayan
e. Court of Tax Appeals En Banc
f. Ombudsman in criminal and non-administrative disciplinary cases
2. Concurrent
a. with Court of Appeals
1) Petitions for writs of certiorari, prohibition, and mandamus against the Civil
Service Commission
2) Petitions for writs of certiorari, prohibition and mandamus against the National
Labor Relations Commission under the Labor Code (Sec. 9, Batas 129
[1983], as amended by Rep. Act No. 7902 [1995], St. Martin’s Funeral Homes
vs. National Labor Relations Commission, G.R. No. 130866, September 16,
1998, 295 SCRA 494)
b. with Court of Appeals and Regional Trial Courts
1) Petitions for habeas corpus and quo warranto
2) Actions brought to prevent and restrain violations of laws concerning
monopolies and combinations in restraint of trade (Sec. 17, Rep. Act No.
296 [1948], as amended by Rep. Act No. 5440 [1968])
c. with Court of Appeals, Sandiganbayan and Regional Trial Courts
1) Petitions for certiorari, prohibition and mandamus relating to an act or
omission of a municipal trial court, or of a corporation, a board, an officer
or person
2) Petitions for issuance of writ of amparo (Sec. 3, A.M. No. 07-9-12-SC or
“The Rule on the Writ of Amparo,” effective October 24, 2007)
3) Petitions for issuance of writ of habeas data (Sec. 3, A.M. No. 08-1-16-SC
effective February 2, 2008)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
B. Appellate Jurisdiction
1. Ordinary Appeal
From the Court of Appeals, in all criminal cases involving offenses for which the
penalty imposed is reclusion perpetua or life imprisonment; or a lesser penalty is
imposed for offenses committed on the same occasion or which arose out of the
same occurrence that gave rise to the more severe offense for which the penalty of
death is imposed (Sec. 13[c], Rule 124, as amended by A.M. No. 00-5-03-SC,
effective October 15, 2004, Sec. 13[b], Rule 124)
3. Petition for certiorari filed within thirty (30) days from notice of the judgment/ final
order/ resolution sought to be reviewed against the following: (Rule 64, 1997
Rules of Civil Procedure)
a. Commission on Elections (Sec. 7, Article IX-A, 1987 Constitution; Aratuc vs.
COMELEC, No. L-49705-09, February 8, 1979, 88 SCRA 251)
b. Commission on Audit (Ibid., 1987 Constitution)
2. Court of Appeals
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
10
A. Original Jurisdiction
1. Exclusive
a. Actions for annulment of judgments of Regional Trial Courts (Sec. 9[2], Batas
Blg. 129 [1983]; Rule 47, 1997 Rules of Civil Procedure)
b. Petitions for certiorari, prohibition, and mandamus involving an act or omission
of a quasi-judicial agency, unless otherwise provided by law (Sec. 4, Rule 65,
as amended by A.M. No. 07-7-12-SC dated December 12, 2007)
2. Concurrent
a. with Supreme Court
1) Petitions for writs of certiorari, prohibition, and mandamus against the Civil
Service Commission (Rep. Act No. 7902 [1995])
2) Petitions for writs of certiorari, prohibition and mandamus against the
National Labor Relations Commission under the Labor Code (Sec. 9, Batas
129 [1983], as amended by Rep. Act No. 7902 [1995], St. Martin’s Funeral
Homes vs. National Labor Relations Commission, G.R. No. 130866,
September 16, 1998, 295 SCRA 494)
b. with Supreme Court and Regional Trial Courts
1) Petitions for habeas corpus and quo warranto
2) Actions brought to prevent and restrain violations of laws concerning
monopolies and combinations in restraint of trade (Sec. 17, Rep. Act No.
296 [1948], as amended by Rep. Act No. 5440 [1968])
c. with Supreme Court, Sandiganbayan, and Regional Trial Courts
1) Petitions for certiorari, prohibition and mandamus relating to an act or
omission of a municipal trial court, or of a corporation, a board, an officer,
or person
2) Petitions for issuance of writ of amparo (Sec. 3, A.M. No. 07-9-12-SC or
“The Rule on the Writ of Amparo,” effective October 24, 2007)
3) Petitions for issuance of writ of habeas data (Sec. 3, A.M. No. 08-1-16- SC,
effective February 2, 2008)
B. Appellate Jurisdiction
1. Ordinary Appeal
a. Appeals from Regional Trial Courts, except those appealable to the Supreme
Court under
b. Appeals from Regional Trial Courts on constitutional, tax, jurisdictional
questions involving questions of fact which should be appealed first to the
Court of Appeals (Sec. 17, subparagraph 4 of the fourth paragraph of Rep. Act
No. 296 [1948] as amended, which was not intended to be excluded by Sec.
9[3], Batas Pambansa Blg. 129 [1983])
c. Appeals from decisions and final orders of the Family Courts (Sec. 14, Rep.
Act No. 8369 [1997])
d. Appeals from Regional Trial Courts in criminal cases, where the penalty
imposed is reclusion perpetua, or life imprisonment, or where a lesser penalty
is imposed but for offenses committed on the same occasion or which arose
out of the same occurrence that gave rise to the more serious offense for
which the penalty of reclusion perpetua or life imprisonment is imposed (Sec.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
11
3[c], Rule 122, as amended by A.M. No. 00-5-03-SC, effective October 15,
2004; People vs. Mateo, G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640)
2. Petition for certiorari against decisions and final resolutions of the National Labor
Relations Commission (A. M. No. 99-2-01-SC; St. Martin Funeral Homes vs.
National Labor Relations Commission, G.R. No. 13086, September 16, 1998, 295
SCRA 494; Torres, et. al. vs. Specialized Packaging Development Corp., et. al.,
G.R. No.149634, July 6, 2004, 433 SCRA 455)
3. Automatic review in cases where the Regional Trial Courts impose the death
penalty (Secs. 3[d] and 10, Rule 122, as amended by A.M. No. 00-5-03-SC,
effective October 15, 2004; People vs. Mateo, supra)
4. Petition for review
a. Appeals from Regional Trial Courts in cases decided by the RTC in the exercise
of its appellate jurisdiction (Sec. 22, Batas Blg. 129 [1983]; Rule 42, 1997
Rules of Civil Procedure; Sec. 3[b], Rule 122)
b. Appeals from decisions of the Regional Trial Courts acting as Special Agrarian
Courts in cases involving just compensation to the landowners concerned
(Land Bank of the Philippines vs. De Leon, G. R. No. 143275, September 10,
2002, 388 SCRA 537)
c. Appeals from awards, judgments, final orders, or resolutions of, or authorized
by, quasi-judicial agencies in the exercise of their quasi-judicial functions.
Among these are: CSC, GSIS, NEA, CIAC, SEC, DAR, OP, CBAA, BPTTT,
ERC, LRA, CAB, BOI, PAEC, SSS, IC, ECC, Voluntary Arbitrator
d. Appeals from the Office of the Ombudsman in administrative disciplinary
cases (A.M. No. 99-2-02-SC; Fabian vs. Desierto, G.R. No. 129742,
September 16, 1998, 295 SCRA 470)
3. Decisions, orders or resolutions of the Regional Trial Courts in local tax cases originally
decided or resolved by them in the exercise of their original or appellate jurisdiction;
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
12
4. Decisions of the Commissioner of Customs in cases involving liability for customs duties,
fees or other money charges, seizure, detention or release of property affected, fines,
forfeitures or other penalties in relation thereto, or other matters arising under the Customs
Law or other laws administered by the Bureau of Customs;
5. Decisions of the Central Board of Assessment Appeals in the exercise of its appellate
jurisdiction over cases involving the assessment and taxation of real property originally
decided by the provincial or city board of assessment appeals;
6. Decisions of the Secretary of Finance 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 Tariff and Customs Code;
7. Decisions of the Secretary of Trade and Industry, in the case of nonagricultural product,
commodity or article, and the Secretary of Agriculture in the case of agricultural product,
commodity or article, involving dumping and countervailing duties under Sec. 301 and 302,
respectively, of the Tariff and Customs Code, and safeguard measures under Republic Act
No. 8800, where either party may appeal the decision to impose or not to impose said
duties.
1. Exclusive original jurisdiction over all criminal offenses arising from violations of the
National Internal Revenue Code or Tariff and Customs Code and other laws administered
by the Bureau of Internal Revenue or the Bureau of Customs: Provided, however, That
offenses or felonies mentioned in this paragraph where the principal amount of taxes and
fees, exclusive of charges and penalties, claimed is less than One million pesos
(P1,000,000.00) or where there is no specified amount claimed shall be tried by the regular
courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of
Court to the contrary notwithstanding, the criminal action and the corresponding civil action
for the recovery of civil liability for taxes and penalties shall at all times be simultaneously
instituted with, and jointly determined in the same proceeding by the CTA, the filing of the
criminal action being deemed to necessarily carry with it the filing of the civil action, and no
right to reserve the filling of such civil action separately from the criminal action will be
recognized.
a. Over appeals from the judgments, resolutions or orders of the Regional Trial Courts in tax
cases originally decided by them, in their respected territorial jurisdiction.
b. Over petitions for review of the judgments, resolutions or orders of the Regional Trial
Courts in the exercise of their appellate jurisdiction over tax cases originally decided by the
Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in their
respective jurisdiction.
1. Exclusive original jurisdiction in tax collection cases involving final and executory
assessments for taxes, fees, charges and penalties: Provided, however, That collection cases
where the principal amount of taxes and fees, exclusive of charges and penalties, claimed is
less than One million pesos (P1,000,000.00) shall be tried by the proper Municipal Trial Court,
Metropolitan Trial Court and Regional Trial Court.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
13
a. Over appeals from the judgments, resolutions or orders of the Regional Trial Courts in tax
collection cases originally decided by them, in their respective territorial jurisdiction.
b. Over petitions for review of the judgments, resolutions or orders of the Regional Trial
Courts in the Exercise of their appellate jurisdiction over tax collection cases originally
decided by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts, in their respective jurisdiction. (Sec. 7, RA 1125, amended by RA 9282)
4. Sandiganbayan
A. Original Jurisdiction
1. Exclusive
a. Violation of Rep. Act No. 3019 [1960] (Anti-Graft), Rep. Act No. RA 1379 [1955]
and Chapter II, Sec. 2, Title VII of Revised Penal Code; and other offenses
committed by public officials and employees in relation to their office, and
private individuals charged as co-principals, accomplices, and accessories
including those employed in government-owned or –controlled corporations,
where one or more of the accused are officials occupying the following
positions in government, whether in a permanent, acting, or interim capacity, at
the time of the commission of the offense:
In cases where none of the accused is occupying the above positions, the original
jurisdiction shall be vested in the proper Regional Trial Court or Metropolitan Trial
Court, etc., as the case may be, pursuant to their respective jurisdictions. (Sec.
2, Rep. Act No. 7975 [1995], as amended by Rep. Act No. 8249 [1997]
In cases where there is no specific allegation of facts showing that the offense was
committed in relation to the public office of the accused, the original jurisdiction
shall also be vested in the proper Regional Trial Court or Metropolitan Trial Court,
etc., as the case may be. (Lacson vs. Executive Secretary, G.R. No. 128096,
January 20, 1999, 310 SCRA 298)
b. Civil and criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14, and 14-A. (Sec. 2, Rep. Act No. 7975 [1995] as amended by Rep.
Act No. 8249 [1997]).
c. Violations of Rep. Act No. 9160, or “Anti-Money Laundering Act of 2001,” as
amended by Rep. Act No. 9194, when committed by public officers and private
persons who are in conspiracy with such public officers.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
14
3. Concurrent with Supreme Court, Court of Appeals and Regional Trial Courts
a. Petitions for writ of amparo and writ of habeas data when action concerns public
data files of government offices (Sec. 3, A.M. No. 07-9-12-SC or “The Rule on
the Writ of Amparo,” effective October 24, 2007; Sec. 3, A.M. No. 08-1-16-SC,
effective February 2, 2008)
b. Petitions for certiorari, prohibition, and mandamus, relating to an act or omission
of a Municipal Trial Court, corporation, board, officer, or person (Sec. 4, Rule 65,
as amended by A.M. No. 07-7-12-SC dated December 12, 2007)
B. Appellate Jurisdiction
Decisions and final orders of Regional Trial Courts in the exercise of their original or
appellate jurisdiction under Pres. Decree No. 1606 [1979], as amended, shall be
appealable to the Sandiganbayan in the manner provided by Rule 122 of the Rules of
Court. (Sec. 5, Rep. Act No. 8249 [1997])
2. Where the basic issue is other than the right to recover a sum of money, or
where the money claim is purely incidental to, or a consequence of the principal relief
sought, the subject of litigation may not be estimated in terms of money – jurisdiction
exclusively of RTC.
Exs. expropriation
specific performance
support
foreclosure of mortgage
annulment of judgment
actions questioning the validity of a mortgage
annulment of deed of conveyance
rescission
3. 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
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
15
MCTC where the assessed value of the real property involved does not
exceed P20,000.00 in Metro Manila, or P50,000.00, if located elsewhere.1
(Russel vs. Vestil, G.R. No. 119347, March 17, 1999).
2) Actions involving title to, or possession of real property or any interest therein
- where assessed value of property exceeds P20,000.00 (P50,000.00 in Metro
Manila), excluding forcible entry and unlawful detainer
3) Actions in admiralty and maritime jurisdiction – where demand or claim exceeds
P300,000.00 (P400,000.00 in Metro Manila)
4) Matters of probate, testate and intestate - where. gross value of estate exceeds
P300,000.00 (P400,000.00 in Metro Manila)
5) Cases not within exclusive jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions.
6) All other cases where demand – exclusive of interests, damages of whatever kind,
attorney’s fees, litigations expenses and cost, or value of property in controversy –
exceeds P300,000.00 (P400,000.00 in Metro Manila)
7) Additional original jurisdiction transferred under Sec. 5.2. of the Securities
Regulation Code.
8) Application for issuance of writ of search and seizure in civil actions for
infringement of intellectual property rights (Sec. 3, A.M. No. 02-1-06-SC,
effective February 15, 2002)
9) Violations of Rep. Act No. 9160 or “Anti-Money Laundering Act of 2001,” as
amended by Rep. Act No. 9194.
b. Concurrent
1) with Supreme Court
Actions affecting ambassadors and other public ministers and consuls (Sec.
21[1], Batas Blg. 129 [1983])
2) with Supreme Court and Court of Appeals
Petitions for habeas corpus and quo warranto Appeals (Sec. 5 [1], Article
VIII, 1987 Constitution
3) with Supreme Court, Court of Appeals, and Sandiganbayan
a) Petitions for certiorari, prohibition, and mandamus, if they relate to an act
or omission of a municipal trial court, corporation, board, officer, or person
(Sec. 4, Rule 65, as amended by A.M. No. 07-7-12-SC, dated December
12, 2007)
b) Petitions for writ of amparo and writ of habeas data (Sec. 3, A.M. No. 07
9-12-SC or “The Rule on the Writ of Amparo,” effective October 24,
2007; Sec. 3, A.M. No. 08-1-16-SC, effective February 2, 2008)
4) with metropolitan trial courts, municipal trial courts, and municipal circuit trial
courts
1
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts
in civil cases. - Metropolitan Trial Courts, Municipal Trial Courts, and Municipal 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 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:
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
16
Application for Protection Order under Sec. 10, Rep. Act No. 9282, unless
there is a Family Court in the residence of petitioner.
5) with Insurance Commission
Claims not exceeding PhP 100,000.00 (Sec. 416, Insurance Code [1974],
Pres. Decree No. 612 [1975]. Applicable if subject of the action is not
capable of pecuniary estimation; otherwise, jurisdiction is concurrent with
Metropolitan Trial Court, etc.
2. Criminal
a. Exclusive
Criminal cases not within the exclusive jurisdiction of any court, tribunal, or
body. (Sec. 20, Batas Blg. 129 [1983]). These include criminal cases where
the penalty provided by law exceeds six (6) years imprisonment irrespective
of the fine. (Rep. Act No. 7691 [1994]). These also include criminal cases not
falling within the exclusive original jurisdiction of the Sandiganbayan, where
none of the accused are occupying positions corresponding to salary grade
“27” and higher. (Rep. Act No. 7975 [1995] and Rep. Act No. 8249 [1997]).
But in cases where the only penalty provided by law is a fine, the Regional
Trial Courts have jurisdiction if the amount of the fine exceeds PhP 4,000.
(Rep. Act No. 7691 [1994] as clarified by Administrative Circular No. 09-94
dated June 14, 1994).
B. Appellate Jurisdiction
All cases decided by lower courts (metropolitan trial courts, etc.) in their
respective territorial jurisdictions. (Sec. 22, Batas Blg. 129 [1983])
6. Family Courts
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
17
9. Cases of violence against women and their children under Rep. Act No. 9262,
otherwise known as “Anti-Violence Against Women and their Children Act of
2004,” including applications for Protection Order under the same Act;
10 Criminal cases involving juveniles if no preliminary investigation is required
under Sec. 1, Rule 112 of Revised Rules on Criminal Procedure (Sec. 1, A.M.
No. 02-1-18-SC, effective April 15, 2002)
b. Delegated
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
18
c. Special
Petition for habeas corpus in the absence of all Regional Trial Court judges.
(Sec. 35, Batas Blg. 129 [1983])
2. Criminal
a. Exclusive
2) All offenses punishable with imprisonment of not more than six (6) years
irrespective of the fine and regardless of other imposable accessory or
other penalties and the civil liability arising therefrom; provided, however,
that in offenses involving damage to property through criminal negligence,
they shall have exclusive original jurisdiction. (Sec. 32, Batas Blg. 129
[1983] as amended by Rep. Act No. 7691 [1994])
3) All offenses committed not falling within the exclusive original jurisdiction
of the Sandiganbayan where none of the accused is occupying a
position corresponding to salary grade “27” and higher. (As amended
by Rep. Act No. 7975 [1995] and Rep. Act No. 8249 [1997])
4) In cases where the only penalty provided by law is a fine not exceeding
PhP 4,000, the Metropolitan Trial Courts, etc. have jurisdiction.
(Administrative Circular No. 09-94, dated June 14, 1994)
b. Special
Applications for bail in the absence of all Regional Trial Court judges. (Sec.
35, Batas Blg. 129 [1983])
8. Shariah Courts
Presidential Decree (P.D.) No. 1083 created the Shari’a Courts, which have limited
jurisdiction over the settlement of issues, controversies or disputes pertaining to the civil
relations between and among Muslim Filipinos. Specifically, these controversies require the
interpretation of laws on Persons, Family Relations, Succession, Contracts, and similar laws
applicable only to Muslims. Despite the seeming exclusivity of the jurisdiction of the Shari’a
Courts with regard to controversies involving Muslims, the Supreme Court retains the power of
review orders of lower courts through special writs (R.A. 6734, Art. IX, Sec.1). This review
extends to decisions made by the Shari’a Courts
All actions which are: (a) purely civil in nature where the claim of relief prayed for by the
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
19
plaintiff is solely for payment or reimbursement or sum of money, and (b) the civil aspect of the
criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule 111 of
the Revised Rules of Criminal Procedure, where the value of the claim does not exceed One
Hundred Thousand Pesos (P100,000.00), exclusive of interest and costs.
A. Civil Cases
1. All cases of forcible entry and unlawful detainer, irrespective of the amount of damages or
unpaid rentals sought to be recovered. Where attorney's fees are awarded, the same shall
not exceed twenty thousand pesos (P20,000.00).
2. All other cases, except probate proceedings, where the total amount of the plaintiff's claim
does not exceed one hundred thousand pesos (P100,000.00) or, two hundred thousand
pesos (P200,000.00) in Metropolitan Manila, exclusive of interest and costs." (A.M. No.
02-11-09-SC, which took effect on November 25, 2002)
B. Criminal Cases:
1. Violations of traffic laws, rules and regulations;
2. Violations of the rental law;
3. Violations of municipal or city ordinances;
4. Violations of Batas Pambansa Bilang 22 (Bouncing Checks Law) (A.M. No. 00-11
01-SC, which took effect on March 30, 2003)
5. All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment not exceeding six months, or a fine not exceeding one
thousand pesos (P1,000.00), or both, irrespective of other imposable penalties,
accessory or otherwise, or of the civil liability arising therefrom: Provided, however,
that in offenses involving damage to property through criminal negligence, this
Rule shall govern where the imposable fine does not exceed ten thousand pesos
(P10,000.00).
Barangay Conciliation
All disputes are subject to Barangay conciliation pursuant to the Revised Katarungang
Pambarangay Law [formerly P. D. 1508, repealed and now replaced by Secs. 399-422, Chapter
VII, Title I, Book III, and Sec. 515, Title I, Book IV, R.A. 7160, otherwise known as the Local
Government Code of 1991], and prior recourse thereto is a pre-condition before filing a
complaint in court or any government offices, except in the following disputes:
[2] Where one party is a public officer or employee and the dispute relates to the
performance of his official functions;
[3] Where the dispute involves real properties located in different cities and
municipalities, unless the parties thereto agree to submit their difference to
amicable settlement by an appropriate Lupon;
[5] Disputes involving parties who actually reside in barangays of different cities
or municipalities, except where such barangay units adjoin each other and the
parties thereto agree to submit their differences to amicable settlement by an
appropriate Lupon;
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
20
[6] Offenses for which the law prescribes a maximum penalty of imprisonment
exceeding one [1] year or a fine of over five thousand pesos (P5,000.00);
[8] Disputes where urgent legal action is necessary to prevent injustice from
being committed or further continued, specifically the following:
[b] Petitions for habeas corpus by a person illegally deprived of his rightful
custody over another or a person illegally deprived of or on acting in his
behalf;
[9] Any class of disputes which the President may determine in the interest of
justice or upon the recommendation of the Secretary of Justice;
[10] Where the dispute arises from the Comprehensive Agrarian Reform Law
(CARL) [Secs. 46 & 47, R. A. 6657];
[12] Actions to annul judgment upon a compromise which may be filed directly in
court [See Sanchez vs. Tupaz, 158 SCRA 459].
A. Actions in general
1. Cause of action
2. Right of action
B. Parties
1. Parties in general
2. Kinds of parties
3. Requirements
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
21
a. legal capacity
c. standing to sue
4. Joinder of parties
1) compulsory
2) permissive
1) class suit
2) intervention
3) interpleader
D. Selection of court
b. Personal, real
2. Hierarchy of courts
3. Jurisdiction
4. Venue
5. Summary procedure
1. Pleadings in general
a. Formal requirements
1) Verification
2. Complaint
1) Permissive
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
22
2) Compulsory
B. Docket fees
C. Raffle of cases
A. Summons
a. personal service
b. substituted service
d. extraterritorial service
B. Voluntary appearance
3. motion for leave to file a supplemental complaint under Rule 10, Section 6
B. Defendant’s motions
2. motion for extension of time to file responsive pleading under Rule 11, Section 11
V. JOINDER OF ISSUES
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
23
1. Motions
f. To set pre-trial
2. Pleadings
a. Reply
b. Answer to counterclaim
3. Others
a. Pre-trial brief
1. Motion
a. Motion to dismiss complaint due to fault of plaintiff under Rule 17, Sec. 3
2. Pleading
3. Others
a. Pre-trial brief
VI. PRE-TRIAL
A. Plaintiff’s motions
B. Defendant’s motion
1. Motion to dismiss
C. Common motions
1. To postpone
D. Joinder
2. Joinder of parties
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
24
A. Depositions
B. Interrogatories to parties
VIII. TRIAL
A. Common motion
1. To submit memorandum
B. Defendant’s motion
X. JUDGMENT
A. Common motions
1. For reconsideration
A. Before finality
1. Ordinary appeal
B. After finality
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
25
A. In general
1. Kinds of execution
a. Mandatory
b. Discretionary
4. Of special judgments
C. Execution sales
1. Sales on execution
E. Satisfaction of judgment
A. Actions
1. Meaning of ordinary civil actions
Civil action – 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)
May either be ordinary (Rules 1-56) or special (Rules 62-71); both are governed by the rules
for ordinary actions, subject to the specific rules prescribed for special civil actions.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
26
a. personal
b. real
Seeks the recovery of real property, or an action affecting title to property or for recovery of
possession, or for partition, or condemnation of, or foreclosure of mortgage on real property.
Venue: province or city where property or any part
thereof lies.
Local – may be filed in a fixed place, where property or any part thereof lies.
Action against a person on the basis of his personal liability, or one affecting the parties
alone, not the whole world, and the judgment thereon is binding only against the parties
properly impleaded.
Exs. forcible entry or unlawful detainer, recover ownership of land, recover damages,
specific performance.
b. in rem
Action against the res or thing itself, instead of against the person.
A real action may at the same time be an action in personam and not necessarily an
action in rem.
In rem – to determine title to land, and the object of the suit is to bar indifferently all who
might be minded to make an objection against the right sought to be established. Seeks
judgment with respect thereto against the whole world.
In personam – concerns only the right, title and interest of the parties to the land, not
the title of the land against the whole world.
Exs. probate proceeding, cadastral proceeding, action affecting personal status of
plaintiff (Rule 14, Sec. 15), insolvency proceeding, land registration proceeding (not
necessary to give personal notice to owners or claimants to vest court with jurisdiction -
publication of notice brings in the whole world as a party in the case and vests court with
jurisdiction to hear and decide the case).
Contrast: in personam (a) cases involving auction sale of land for collection of
delinquent taxes are in personam – mere publication of notice not sufficient; (b) action to
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
27
redeem, recover title to or possession of real property (not an action against the whole
world).
c. quasi in rem
Differs from true action in rem – individual is named as defendant, and purpose of
proceeding is to subject his interest therein to the obligation or lien burdening the property.
Neither strictly in personam nor in rem but it is an action in personam where a res is
affected by the decision.
Exs. partition, accounting under Rule 69 – actions essentially for the purpose of affecting
defendant’s interest in the property and not to render a judgment against him (Valmonte vs.
CA, 252 SCRA 92 [1996]).
B. Cause of Action
1. Meaning of cause of action
Cause of action defined - a cause of action is the act or omission by which a party violates
a right of another (Rule 2, Sec. 2).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
28
What are the requisites for joinder of causes of action? (Rule 2, Sec. 5)
1. Compliance with the rule on permissive joinder of parties under Rule 3, Sec. 6.
Must arise out of the same transaction or series of transactions AND there is a common
question of law or fact. Ex. A, owner of a property, can file an ejectment complaint against B,
C and D who are occupying his property without his consent..
2. A party cannot join in an ordinary action any of the special civil actions. – Reason:
special civil actions are governed by special rules. Ex. P500,000 collection cannot be joined
with partition because the latter is a special civil action.
3. Where the causes of action are between the SAME PARTIES but pertain to DIFFERENT
VENUES OR JURISDICTIONS, the joinder may be allowed in the RTC, provided ONE OF
THE CAUSES OF ACTION falls within the jurisdiction of the RTC and the venue lies therein.
Exception: ejectment case may not be joined with an action within the jurisdiction of the
RTC as the same comes within the exclusive jurisdiction of the MTC.
Unless the defendant did not object thereto, answered the complaint, and went to trial
because he is precluded from assailing any judgment against him on the ground of estoppel
or laches (Valderrama vs. CA, 252 SCRA 406 [1996]).
N.B. As to joinder in the MTC, it must have jurisdiction over ALL THE CAUSES OF
ACTION and must have common venue.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
29
4. Where the claims in all the causes of action are principally for recovery of money,
jurisdiction is determined by the AGGREGATE OR TOTAL AMOUNT claimed (totality rule).
N.B. The totality rule applies only to the MTC – totality of claims cannot exceed the
jurisdictional amount of the MTC.
There is no totality rule for the RTC because its jurisdictional amount is without limit. Exc.
In tax cases where the limit is below P1 million. Amounts of P1 million or more fall within the
jurisdiction of the CTA.
Note: Unlike splitting of a cause of action, a misjoinder is NOT a ground for the dismissal of
an action.
Minors represented by their parents were held as real parties in interest to file an
action to annul timber licenses issued by the state, under the following principles:
a. inter-generational responsibility
b. inter-generational justice
c. right of the people to a balanced and healthful ecology
d. minors represent themselves and the generations to come (Oposa vs.Factoran,
G.R. No. 101083, July 30,1993)
An action must be brought in the name but not necessarily by the real party in
interest. In fact, the practice is for an attorney-in-fact to bring action in the name of the
plaintiff.
Standing to sue – one who is directly affected by and whose interest is IMMEDIATE
AND SUBSTANTIAL in the controversy has the standing to sue. In other words, he is a
real party in interest. He has a personal stake in the outcome of the controversy.
In a case involving constitutional issues, “standing” or locus standi means a personal
interest in the case such that the party has sustained or will sustained DIRECT INJURY
as a result of the government act that is being challenged.
Who are allowed to sue under this concept of locus standi? (Kilosbayan, Inc. vs.
Morato, 246 SCRA 540 [1995])
1. Taxpayers – where there is a claim of illegal disbursement of public funds.
2. Voters – to question the validity of election laws because of their obvious interest in
the validity of such laws.
3. Concerned citizens – if the constitutional question they raise is of transcendental
importance which must be settled early.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
30
4. Legislators – to question the validity of official action which they claim infringes on
their prerogatives as legislators.
Indispensable parties;
Indispensable parties (Rule 3, Sec. 7)
An indispensable party is one without whom NO FINAL DETERMINATION can be had
of an action. He shall be joined either as plaintiff or defendant.
His interests in the subject matter of the suit and in the relief sought are so bound up
with that of the other parties that his LEGAL PRESENCE as party to the proceeding is
an ABSOLUTE NECESSITY.
Without the presence of indispensable parties to a suit or proceeding, the judgment of
the court cannot attain real finality (Servicewide Specialists, Inc. vs. CA, 251 SCRA 70
[1997]).
Examples of indispensable parties:
1. Vendors – in an action to annul the sale
2. Lot buyers – in an action for reconveyance of parcels of land which had already been
subdivided
3. Co-owners – in an action for partition
4. Possessor of land – in an action for recovery of possession
Where the obligation of the parties is solidary, either of the parties is indispensable, and
the other is not even a necessary party because complete relief is available from either.
(Cerezo vs. Tuazon, G.R. N0. 141538, March 23, 200
Representatives as parties;
Representative parties (Rule 3, Sec. 3)
A representative party is one who represents or stands IN THE PLACE OF ANOTHER
and who is allowed to PROSECUTE OR DEFEND an action for the beneficiary.
The beneficiary shall be included in the title of the case and shall be deemed to be the real
party in interest.
Who are the representatives?
1.Trustee of an express trust
2. Guardian
3. Executor or administrator
4. Party authorized by law or the Rules of Court
5. 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.
Necessary parties;
Necessary parties (Rule 3, Sec. 8)
A necessary or proper party is one who is not indispensable but who ought to be joined
as 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.
Their presence is necessary to adjudicate the whole controversy but whose interests
are so far SEPARABLE that a final decree can be made in their absence without
affecting them.
Non-inclusion of a necessary party does not prevent the court from proceeding in the
action and the judgment is WITHOUT PREJUDICE to the rights of such necessary
party.
Examples of necessary parties:
1. Co-debtor – in a joint obligation
2. Subsequent mortgagees or lien holders – in judicial foreclosure of mortgage
3. Possessor (tenant, etc.) – in an action for recovery of ownership of land (the owner is
the indispensable party)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
31
Indigent Parties;
Rule 3, Sec. 21. Indigent party. – A party may be authorized to litigate his action,
claim or defense as an indigent if the court, upon an ex parte application and hearing, is
satisfied that the party is one who has no money or property sufficient and available for
food, shelter and basic necessities for himself and his family.
The authority to litigate as an indigent party includes an exemption from the payment
of:
1. Transcript of stenographic notes
2. Docket fees and other lawful fees
Note: The amount of the docket and other lawful fees which the indigent was
exempted from paying shall be a LIEN on any judgment rendered in the case favorable
to the indigent, unless otherwise provided ( Rule 3, Sec. 21).
The guidelines for determining whether a party qualifies as an indigent litigant are
provided for in Section 19, Rule 141, which reads:
Sec. 19. Indigent litigants exempt from payment of legal fees. – Indigent litigant (a)
whose gross income and that of their immediate family do not exceed an amount double
the monthly minimum wage of an employee and (b) who do not own real property with a
fair market value as stated in the current tax declaration of more than three hundred
thousand pesos (p300,000.00) shall be exempt from the payment of legal fees.
Alternative defendants-
Rule 2, Sec. 13. Alternative defendants.
Where the plaintiff is uncertain against who of several persons he is entitled to relief, he
may join any or all of them as defendants in the alternative, although a right to relief
against one may be inconsistent with a right of relief against the other.
2. Juridical persons
Who are juridical persons? – Art. 44, Civil Code
1) State and its political subdivisions
2) Other corporations, institutions and entities for public interest and purpose, created by law
(government-owned or controlled corporations)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
32
3) Corporations, partnerships and entities for private interest and purpose to which the law
grants a juridical personality.
4) Entities authorized by law (even if they lack juridical personality) – the persons who
organized such entity may be sued under the name by which they are generally or commonly
known (Rule 3, Sec. 15)
Classification of parties
Lack of legal capacity to sue – plaintiff’s general disability to sue, such as on account of
minority, insanity, incompetence, lack of juridical personality or any other general
disqualifications of a party (Columbia Pictures, Inc. vs. CA, 261 SCRA 144 [1996])
Plaintiff’s lack of legal capacity to sue is a ground for motion to dismiss (Rule 16, Sec. 1[d}).
Ex. A foreign corporation doing business without a license lacks legal capacity to sue.
Note: A sole proprietorship is not vested with juridical personality and cannot sue or file or
defend an action. There is no law authorizing sole proprietorship to file a suit. A sole
proprietorship does not possess a judicial personality separate and distinct from the
personality of the owner of the enterprise. (Berman Memorial Park, Inc. vs. Francisco Cheng,
G.R. No. 154630, May 6, 2005)
. As such, the proper caption should have been "Gerino Tactaquin doing business under
the name and style of G.V.T. Engineering Services", as is usually done in cases filed
involving sole proprietorships. (Tan vs. G.V.T. Engineering Services, Acting through its
Owner/ Manager Gerino V. Tactaquin, G.R. No. 153057 August 7, 2006)
Lack of personality to sue – the fact that plaintiff is not the real party in interest.
All persons in whom or against whom any right to relief in respect to or arising out of the
SAME TRANSACTION or series of transactions is alleged to exist, whether jointly, severally,
or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be
joined as defendants in one complaint, where any QUESTION OF LAW OR FACT COMMON
to all such plaintiffs or to all such defendants may arise in the action; but the court may make
such orders as may be just to prevent any plaintiff or defendant from being embarrassed or
put to expense in connection with any proceedings in which he may have no interest.
The failure to comply with the order for his inclusion, without justifiable cause, shall be
deemed a WAIVER of the claim against such party.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
33
The non-inclusion of a necessary party does not prevent the court from proceeding in the
action, and the judgment rendered therein shall be WITHOUT PREJUDICE to the rights of
such necessary party.
JOINDER OF PARTIES
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
34
c. subrogation or
d. any other relief
in respect of his opponent’s claim.
> A third party complaint is an action actually independent of, and separate and distinct
from plaintiff’s complaint. Were it not for the Rules of Court, it would be necessary to file the
action separately from the original complaint by the defendant against the third party
(Associated Bank. vs. CA, 233 SCRA 137 [1994])
> A third party plaintiff may assert a cause of action against the third party defendant on a
THEORY DIFFERENT from that asserted by the plaintiff against the defendant. Ex. a
defendant in a contract may join as third party defendant those liable to him in tort for the
plaintiff’s claim against him or directly to the plaintiff (Samala vs. Victor, 170 SCRA 453
[1989]).
Special joinder modes - Parties may also be joined in an action through three special
joinder modes:
a. class suits
b. intervention
c. interpleader
Class suits and interpleader – parties are joined at the inception of the suit. Involuntary
because parties joined may or may not know that they are being joined.
Intervention – party is joined after the suit has been filed. Voluntary because a party asks
for leave of court to be allowed to intervene.
4. Class Suit
Class suit (Rule 3, Sec. 12)
An action filed or defended by one or more parties for the benefit of parties who are so
numerous that it is impracticable to bring them all before the court, involving a matter which
is of common or general interest to such numerous persons.
There should be only ONE RIGHT OR CAUSE OF ACTION pertaining or belonging in
common to many persons, not separately or severally to distinguish the individuals.
Ex. Derivate suit brought in behalf of numerous stockholders of a corporation to
perpetually enjoin or nullify a breach of trust or ultra act of the company’s board of directors.
There is only a single right of action pertaining to numerous stockholders, not multiple rights
belonging separately to several distinct persons.
When two or more persons not organized as an entity with juridical personality enter into a
transaction, they may be sued under the name by which they are generally or commonly
known.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
35
In the answer of such defendant, the names and addresses of the persons composing said
entity must all be revealed.
Rule 3, Sec. 17. Death or separation of a party who is a public officer.When a public officer
is a party in an action in his official capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the action may be continued and maintained by or against his successor
if, within thirty (30) days after the successor takes office or such time as may be granted by the
court, it is satisfactorily shown to the court by any party that there is a substantial need for
continuing or maintaining it and that the successor adopts or continues or threatens to adopt or
continue the action of his predecessor. Before a substitution is made, the party or officer to be
affected, unless expressly assenting thereto, shall be given reasonable notice of the application
therefor and accorded an opportunity to be heard.
Rule 3, Sec. 20. Action on contractual money claims. — When the action is for recovery of
money arising from contract, express or implied, and the defendant dies before the 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 the entry of final judgment. A
favorable judgment obtained by the plaintiff therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims against the estate of a deceased person.
The last sentence above refers to Rule 86 (Claims Against Estate). Sec. 5 thereof refers to -
Claims which must be filed under the notice. If not filed, barred.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
36
What is the effect of failure by counsel to inform the court of death of a party on the
judgment against the party and writ of execution against his sole heir?
It will render the judgment and writ of execution VOID for lack of jurisdiction and lack of due
process. If counsel had notified the court of the party’s death, the court would have ordered the
substitution of the deceased by the sole heir (Rule 3, Sec. 16). The court acquired no
jurisdiction over the sole heir upon whom the trial and the judgment are not binding (Lawas vs.
CA, 146 SCRA 173).
Non-compliance with the rule on substitution would render the proceedings and judgment of
the trial court infirm because the court acquires no jurisdiction over the persons of the legal
representatives or of the heirs on whom the trial and the judgment would be binding.
Thus, proper substitution of heirs must be effected for the trial court to acquire jurisdiction over
their persons and to obviate any future claim by any heir that he was not apprised of the
litigation against Bertuldo or that he did not authorize Atty. Petalcorin to represent him.
No formal substitution of the parties was effected within thirty days from date of death of
Bertuldo, as required by Section 16, Rule 3 of the Rules of Court. Needless to stress, the
purpose behind the rule on substitution is the protection of the right of every party to due
process. It is to ensure that the deceased party would continue to be properly represented in the
suit through the duly appointed legal representative of his estate. (Hinog vs. Melicor, 455 SCRA
460 [2005])
The Rules require the legal representatives of a dead litigant to be substituted as parties
to a litigation. This requirement is necessitated by due process. Thus, when the rights of
the legal representatives of a decedent are actually recognized and protected, noncompliance
or belated formal compliance with the Rules cannot affect the validity of the promulgated
decision. After all, due process had thereby been satisfied. When a party to a pending action
dies and the claim is not extinguished, the Rules of Court require a substitution of the deceased.
The procedure is specifically governed by Section 16 of Rule 3. (Dela Cruz vs. Joaquin, G.R.
No. 162788, July 28, 2005).
Failure of counsel to comply with his duty under Section 16 to inform the court of the
death of his client and no substitution of such party is effected, will not invalidate the
proceedings and the judgment thereon if the action survives the death of such party.
Moreover, the decision rendered shall bind his successor-in-interest. The instant action for
unlawful detainer, like any action for recovery of real property, is a real action and as such
survives the death of Faustino Acosta. His heirs have taken his place and now represent his
interests in the instant petition. (Limbauan vs. Acosta, G.R. No. 148606, June 30, 2008)
While it is true that a decision in an action for ejectment is enforceable not only against the
defendant himself but also against members of his family, his relatives, and his privies who
derived their right of possession from the defendant and his successors-in-interest, it had been
established that petitioner (defendant’s wife) had, by her own acts, submitted to the jurisdiction
of the trial court. She is now estopped to deny that she had been heard in defense of her
deceased husband in the proceedings therein.(Vda. De Salazar v. CA, G.R. No. 121510,
November 23, 1995)
D. Venue
Venue defined - the place where the action is triable, whether real or personal. Relates to
place of trial. Touches more of convenience of the parties rather than the substance of the case.
Procedural and not substantive.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
37
1. Venue – locality or place where the suit may be had. Relates to jurisdiction over the
person rather than subject matter. Provisions relating to venue establish a relation between
plaintiff and defendant.
2. Jurisdiction – power of the court to decide the case on the merits.
Provisions on jurisdiction establish a relation between the court and the subject matter.
A court cannot motu proprio dismiss a complaint on the ground of improper venue since
improper venue may be WAIVED for failure to object to it (Decoycoy vs. IAC, 195 SCRA 641
[1991]).
2. If action affects any PROPERTY of defendant located in the Philippines – venue is the
court in the area where PROPERTY or portion thereof is SITUATED.
While court acquires no jurisdiction over person of defendant, valid judgment may be
rendered against the property which is the one impleaded and is the subject of judicial power
(ex. where plaintiff is already in possession of a lien sought to be enforced or by attachment
of the property).
This is an action in rem.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
38
Example: An offended party who is at the same time a public official can only institute an
action for damages arising from libel in two venues: (a) the place where he holds office (if
private individual, where he resided at the time of the commission of the offense) and (b) the
place where the alleged libelous articles were printed and first published. N.B. applies also to
the criminal case.
a. Unless and until the defendant OBJECTS to venue in a motion to dismiss prior to a
responsive pleading, venue cannot truly be said to have been improperly laid.
b. A motion to dismiss belatedly filed could no longer deprive the trial court of jurisdiction
to hear and decide the civil action for damages. Improper venue may be waived and such
waiver may occur by laches.
c. Objections to venue in such actions may be waived as it does not relate to jurisdiction
over the subject matter but rather over the person. Laying of venue is PROCEDURAL and
not substantive ( Diaz vs. Adiong, 219 SCRA 631 (1993)
d. A court cannot motu proprio dismiss a complaint on the ground of improper venue since
improper venue may be WAIVED for failure to object to it (Dacoycoy vs. IAC, 195 SCRA 641
[1991]).
NOTE: 1) Under Sec. 1 of Rule 16, objections to improper venue must be made in a motion
to dismiss before responsive pleading is filed. [Responsive pleading is one that seeks
affirmative relief and sets up defenses].
2) Improper venue (Sec. 1 (c) - that venue is improperly laid) may now be raised as an
AFFIRMATIVE DEFENSE in the answer if no motion to dismiss has been filed (Rule 16, Sec.
6).
3) Under the old rule, when improper venue is not objected to in a motion to dismiss, it is
deemed WAIVED. This provision has been deleted in the new rule.
TO SUMMARIZE:
E. Pleadings
1. Kinds of Pleadings
What is a pleading?
Written statements of the respective CLAIMS and DEFENSES of the parties submitted to
the court for appropriate judgment.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
39
a. Complaint
b. Answer
c. Counterclaim
d. Cross-claim
e. Reply
f. Third party (fourth party, etc.) complaint (Rule 2, Sec. 6)
g. Complaint in intervention, answer in intervention (Rule 19. Sec. 3)
a. Complaint
Rule 6, Sec. 3. Complaint.
The complaint is the pleading alleging the plaintiff's cause or causes of action. The names
and residences of the plaintiff and defendant must be stated in the complaint.
b. Answer
1. What is an answer?
An answer is a pleading in which a defending party sets forth his defenses (Rule 6, Sec. 4).
It may be an answer to the complaint, third party (fourth party, etc.) complaint, counterclaim,
or cross-claim.
Time to Plead
a. Answer to Complaint and Third-Party (Fourth-Party, etc.) Complaint – fifteen (15) days
after service of summons, unless a different period is fixed by the court (Rule 11, Sec. 1)
However, under Rule 16, Section 4, if a motion to dismiss is denied, the movant shall file
his answer within the balance of he period provided by Rule 11 to which he was entitled at
the time of serving his motion, but not less than five (5) days in any event, computed from his
receipt of the notice of the denial. .
(1) when summons is served upon a resident agent – fifteen (15) days after service of
summons;
(2) when summons is served on the government official designated to receive the same –
thirty (30) days from receipt by the latter of the summons.
(1) amended complaint was filed as a matter of right (Rule 10, Section 2) – fifteen (15) days
after being served with a copy thereof; and
(2) amended complaint was filed with leave of court (Rule 10, Section 3) – ten (10) days
from notice of order admitting the amended complaint.
While the rules are liberally construed, the provisions on reglementary periods are
strictly applied for they are deemed indispensable to the prevention of needless delays and
necessary to the orderly and speedy discharge of judicial business.
Strict compliance with said periods is mandatory and imperative.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
40
What are the two kinds of defenses that may be set forth in the answer?
c. Counterclaims
A counterclaim is any claim which a DEFENDING PARTY may have against an opposing
party. (Rule 6, Sec. 6)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
41
a. In a permissive counterclaim, the docket and other lawful fees should be paid and the
same should be accompanied by a certificate against forum shopping and certificate to
file action issued by the proper Lupon Tagapamayapa. It should also be answered by
the claiming party. It is NOT BARRED even if not set up in the action.
Ex. A filed a suit for collection of P350,000 against B in the RTC. Aside from alleging
payment as a defense, B in his answer, set up counterclaims for P120,000 as damages and
P25,000 as attorney’s fees as a result of the baseless filing of the complainant, as well as for
P230,000 as the balance of the purchase price of the 28 units of refrigerators he sold to A.
The counterclaim for reimbursement of the value of the improvements is in the nature of a
compulsory counterclaim. Thus, the failure by private respondents to set it up bars their right to
raise it in a subsequent litigation.The rule on compulsory counterclaim is designed to achieve
resolution of the whole controversy at one time and in one action to avoid multiplicity of suits
(Baclayon vs. Court of Appeals, G.R. No. 89132, February 26, 1990)
N.B.: (1) A compulsory counterclaim that merely reiterates special defenses which
are deemed controverted even without a reply, or raises issues which are deemed
automatically joined by the allegations of the complaint need not be answered.
However, a compulsory counterclaim which raises issues not covered by the complaint
should be answered.
(2) If the defendant has a compulsory counterclaim, he should not file a motion to
dismiss but an answer with a counterclaim, with the ground for the motion to dismiss
being asserted as an affirmative defense pursuant to Rule 16, Sec. 6. The compulsory
counterclaim is deemed waived when defendant filed a motion to dismiss the
complaint instead of answering the same (Financial Building Corp. vs. Forbes Park
Association, Inc., G.R. No. 133119, August. 17, 2000).
(3) If the counterclaim is based on an ACTIONABLE DOCUMENT attached to or
copied in the counterclaim, the genuineness and due execution of the instrument shall
be DEEMED ADMITTED unless the adverse party specifically DENIES UNDER OATH
its genuineness and due execution (Rule 8, Sec. 8)
(3) In an action before the first level court (MTC, MeTC, MTCC, MCTC) the
amounts demanded in the counterclaim, cross-claim, third party complaint must fall
WITHIN THE JURISDICTION of said court, which should not exceed P300,000.00
(outside Metro Manila) and P400,000.00 (within Metro Manila),
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
42
3. 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 ( Rule 17,
Sec. 3)
d. Cross-claims
What is a cross-claim?
a. Any claim by any party against a co-party
b. arising out of the transaction or occurrence
c. that is the subject matter of either the original action or of a counterclaim therein.
Such cross-claim may include a claim that the party against whom it is asserted is or
may be liable to the cross-claimant for all or part or a claim asserted in the action
against the cross-claimant (Rule 6, Sec. 8).
The dismissal of the complaint carries with it the dismissal of the cross-claim which is
purely defensive, but NOT a cross-claim seeking affirmative relief (Torres vs. CA, 49
SCRA 67 [1973]).
Note: Leave of court is necessary -- In third (fourth, etc.) –party complaint is necessary 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.
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, Oct. 26, 1968)
f. Complaint-in-intervention
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
43
INTERVENTION - a legal proceeding by which a person who is not a party to the action is
permitted by the court to become a party by intervening in a pending action after meeting the
conditions and requirements of the Rules of Court.
If the purpose of the motion for intervention is to assert a claim against either or all of the
original parties, the pleading shall be called a COMPLAINT-IN-INTERVENTION
. The answer to the complaint-in-intervention shall be filed within fifteen (15) days from
notice of the order admitting the same, unless a different period is fixed by the court. (Rule
19, Sec. 4)
g. Reply
Rule 6, Sec. 10. Reply.
A reply is a pleading, the office or function of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense in the answer and thereby join or make
issue as to such new matters. If a party does not file such reply, ALL the new matters alleged
in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such
claims shall be set forth in an amended or supplemental complaint.
N.B. The filing of a reply is not necessary, because even if a party does not file a repy, all
the new matters that were alleged in the answer are deemed controverted. (Rule 6, Sec. 10)
Exceptions:
1. Where the answer alleges the defense of usury, in which case a reply under oath
should be made, otherwise, the allegation of usurious interest shall be deemed
admitted.(Rule 8, Sec. 11)
2. Where the defense in the answer is based on an actionable document, a reply under
oath must be made, otherwise, the genuineness and due execution of the document
shall be deemed admitted (Rule 8, Sec. 8)
(Veluz vs. Court of Appeals, G.R. No. 139951, November 23, 2000)
2. Pleadings allowed in small claims cases and cases covered by the rule on
summary procedure
Small Claims-
a. Pleadings allowed
1. Statement of Claims (complaint)
2. Response (answer) - Secs 5 and 11, Rule of Procedure for Small Claims Cases
3. Permissive counterclaim - The defendant may also elect to file a counterclaim
against the plaintiff that does not arise out of the same transaction or occurrence,
provided that the amount and nature thereof are within the coverage of this Rule
and the prescribed docket and other legal fees are paid. (Sec. 13, RPSCC)
1. Motion to dismiss
2. Motion for a bill of particulars.
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial.
4. Petition for relief from judgment.
5. Motion for extension of time to file pleadings, affidavits, or any other paper.
6. Memoranda.
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued
by the court.
8. Motion to declare the defendant in default.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
44
Summary Procedure
a . Pleadings allowed.
1. Complaint
2. Compulsory counterclaim
3. Cross-claims pleaded in the answer
4. Answer to these pleadings (Sec. 3, Rule on Summary Procedure)
3. Parts of a pleading
a. Caption
An unsigned pleading produces NO LEGAL EFFECT. However, the court may, in its
discretion, allow such deficiency to be remedied if it shall appear that the same was due to
mere inadvertence and not intended for delay.
Counsel who (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 (d) fails to promptly
report to the court a change of his address, shall be subject to appropriate DISCIPLINARY
ACTION.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
45
Verification
The absence of the signature of the person misjoined as a party-plaintiff in either the
verification page or certification against forum-shopping is not a ground for the dismissal of the
action (Chua vs. Torres, G.R. No. 151900, August 30, 2005)
Forum Shopping
Test to determine forum-shopping: To determine whether a party violated the rule against
forum shopping, the most important question to ask is whether the elements of litis pendentia are
present or whether a final judgment in one case will result to res judicata in another.Thus, the test is
whether in the two or more cases pending, there is identity of:
1. Parties
2. Rights or causes of action
3. Reliefs sought (Huibonhoa v. Concepcion, supra)
What are the undertakings of a party under the certification against forum shopping?
1. That the party has not commenced 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;
2. That if there is such other pending action or claim, a complete statement of the present
status thereof;
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
46
3. That if he should therefore learn that the same or similar action or claim has been filed or
is pending, he shall report that fact within five days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has been filed (Rule 7, Sec. 5)
Certification against forum shopping is required in filing a complaint and other initiatory
pleadings asserting a claim or relief (Rule 7, Sec. 5). This rule applies as well to special civil
actions since the rules for ordinary civil action are suppletory.
2. If the forum shopping is WILFUL and DELIBERATE, both (or all, if there are more than two
actions) shall be DISMISSED WITH PREJUDICE (Ao-As vs. CA, 491 SCRA 353 [2006])
Willfull and deliberate forum shopping of the party or his counsel shall be a ground for
summary dismissal. This dismissal is with prejudice and shall constitute DIRECT
CONTEMPT as well as cause for administrative sanctions on the part of counsel. (Rule 7,
Sec. 5)
Only individuals vested with authority by a valid board resolution may sign the certificate of
non-forum shopping in behalf of a corporation. In addition, the Court has required that proof of
said authority must be attached. Failure to provide a certificate of non-forum shopping is
sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a
certification was submitted unaccompanied by proof of the signatory's authority. (Philippine
Airlines, Inc. vs. Flight Attendants and Stewards Association of the Philippines (FASAP),
G.R. No. 143088. January 24, 2006)
4. Allegations in a pleading
a. Manner of making allegations
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
47
(2) Fraud, mistake, malice, intent, knowledge and other condition of the mind,
judgments, official documents or acts
Rule 8, Sec. 5. Fraud, mistake, condition of the mind.
In all averments of fraud or mistake, the circumstances constituting fraud or mistake must be
stated with PARTICULARITY. Malice, intent, knowledge or other condition of the mind of a
person may be averred GENERALLY.
c. Specific denials
Rule 8, Sec. 10. Specific denial.
A defendant must specify each material allegation of fact the truth of which he does not
admit and, whenever practicable, shall set forth the substance of the matters upon which he
relies to support his denial. Where a defendant desires to deny only a part of an averment,
he shall specify so much of it as is true and material and shall deny only the remainder.
Where a defendant is without knowledge or information sufficient to form a belief as to the
truth of a material averment made in the complaint, he shall so state, and this shall have the
effect of a denial.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
48
6. Default
a. When a declaration of default is proper
What are the grounds for the declaration of default?
a) Failure of a defending party to answer within the time allowed (Rule 9, Sec. 3). This
includes failure to answer a complaint, permissive counterclaim, cross-claim, third-party
complaint, etc.
b) Wilful failure to appear before an officer to make a deposition, after being served with a
proper notice, or failure to serve answers after proper service of interrogatories (Rule 29,
Sec. 3)
c) Failure to appear at pre-trial (Rule 18, Sec. 5)
NOTE:
1. A declaration of default cannot be made by the court motu proprio; there must be a motion
to that effect (The Philippine British Co., Inc. vs. De Los Angeles, 63 SCRA 50 [1975]).
2. If no motion to declare defendant in default is filed, the complaint should be dismissed for
failure to prosecute.
3. A defendant’s answer should be admitted where it had been filed before it was declared in
default, and no prejudice is caused to plaintiff (Indiana Aerospace University vs. CHED.
356 SCRA 367 [2001])
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
49
e. Extent of relief
Two (2) kinds of Proceedings after Declaration of Default and the Extent of Relief that
may be Granted
NOTE: If the defending party fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion exists between the parties, and if there
is no collusion, to intervene for the State in order to see to it that the evidence submitted
is not fabricated.
b. Actions governed by the Rule on Summary Procedure and Rule of Procedure for Small
Claims Cases, where a motion to declare defendant in default is not allowed.
c. Special civil actions of certiorari, prohibition and mandamus where comment instead of
an answer is required to be filed.
Manuel Uy Po Tiong filed complaint with RTC QC against Sun Insurance Office Ltd. for
refund of premiums, with damages that can be inferred from body of complaint to be around
P50M, but paid only P210 as docket fee. Later re-amended complaint and supplemental
complaint – total claim of P64,601. Paid total docket fee of P182,824. But petitioner claims
he should pay P257,810.
Ruling:
a. Amount of damages prayed for should be specified not only in the body of the pleading
but also in the prayer, and said damages shall be considered in the assessment and
payment of filing fees.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
50
b. It is not simply the filing of complaint or initiatory pleading but also payment of prescribed
docket fee that vests a trial court with jurisdiction over subject matter or nature of the
action.
c. Without payment of correct docket fee, no original complaint or similar pleading is
considered filed. Hence, amendment of such complaint of similar pleading, or payment
of docket fee based on the amounts sought in the amended pleading will not vest
jurisdiction in the court.
d. Where the filing of the initiatory pleading is not accompanied b y payment of the docket
fee, the court may allow payment of deficient docket fee within a reasonable period but
not beyond the applicable prescriptive or reglementary period. Conclusion: if the
complete amount of docket fee is not paid, prescriptive period continues to run as the
complaint is deemed not filed.
e. The same rule applies to permissive counterclaims, third party claims and similar
pleadings, which shall not be considered filed unless the filing fee is paid.
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 court awards a claim
not specified in the pleadings, such as damages arising after the filing of the complaint or
similar pleading, the additional filing fee therefor shall constitute a lien on the judgment.(Sun
Insurance Office, Ltd. vs. Asuncion, 170 SCRA 274 (1989), reiterated in Tacay vs. RTC of
Tagum, Davao del Norte, 180 SCRA 433 (1989) and Heirs of Bertuldo Hinog vs. Melicor,
455 SCRA 460 (2005)).
What is filing?
It is the act of PRESENTING the pleading or other paper to the clerk of court (Rule 13,
Sec.2)
What is service?
It is the act of PROVIDING A PARTY WITH A COPY of the pleading or paper concerned.
If any party has appeared by counsel, service upon him shall be made upon his counsel or
one of them, unless service upon the party himself is ordered by the court. When a party is
represented by counsel, service of notice should be made upon counsel and not upon the
party, unless service upon the party himself is ordered by the court. (Rule 13, Sec. 2).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
51
Answer to amended complaint (matter within fifteen (l5) days after being served
of right) with a copy thereof
Answer to amended complaint (NOT a ten (10) days from notice of the order
matter of right) admitting the same. (An answer earlier
filed may serve as the answer to the
amended complaint if no new answer is
filed.)
Answer to third (fourth, etc.)- party same rule as the answer to the complaint
complaint. (within fifteen (l5) days after service of
summons, unless a different period is
fixed by the court.)
Answer to supplemental complaint. ten (10) days from notice of the order
admitting the same, unless a different
period is fixed by the court.
V. Modes of service
(1) Personal service
Rule 13, Sec. 6. Personal service. — Service of the papers may be made by delivering
personally a copy to the party or his counsel, or by leaving it in his office with his clerk or
with a person having charge thereof. If no person is found in his office, or his office is not
known, or he has no office, then by leaving the copy, between the hours of eight in the
morning and six in the evening, at the party's or counsel's residence, if known, with a person
of sufficient age and discretion then residing therein.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
52
Rule 13, Sec. 11 requires personal service of petitions and other pleadings. This is the
general rule, while recourse to alternative modes of service and filing is the exception.
Where recourse is made to the exception, a written explanation of why personal service
was not effected is indispensable, even when such explanation by its nature is acceptable
and manifest. Where no explanation is offered to justify resort to other modes, the court may
expunge the pleading. (Zulueta vs. Asia Brewery, Inc., G.R. No. 138137, March 8, 2001)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
53
if filed by REGISTERED MAIL, by the registry receipt and by the affidavit of the person
who did the mailing, containing a full statement of the date and place of depositing the mail in
the post office in a sealed envelope addressed to the court, with postage fully prepaid, and
with instructions to the postmaster to return the mail to the sender after ten (10) days if not
delivered.
8. Amendment
a. Amendment as a matter of right
Rule 10, Sec. 2. Amendments as a matter of right.
A party may amend his pleading once as a matter of right at any time BEFORE a
responsive pleading is served or, in the case of a reply, at any time within ten (l0) days after
it is served.
NOTES:
1. The filing by the defendant of a motion to dismiss does not affect the plaintiff’s right to
amend his complaint without first securing leave of court because a motion to dismiss
is NOT a responsive pleading.
2. Leave of court is necessary AFTER the filing of a responsive pleading. However, even
substantial amendments may be made under this Rule.
3. But such leave may be refused, if it appears to the court that the motion was made with
intent to delay.
c. Formal amendment
Rule 10, Sec. 4. Formal amendments.
A defect in the designation of the parties and other clearly clerical or typographical errors
may be summarily corrected by the court at any stage of the action, at its initiative or on
motion, provided no prejudice is caused thereby to the adverse party.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
54
SUBSTANTIAL JUSTICE will be subserved thereby. The court may grant a continuance to
enable the amendment to be made.
When issues not raised by the pleadings are tried with the express or implied consent of
the parties
1. They shall be treated in all respects as if they had been raised in the pleadings;
2. Such amendment of the pleadings as may be necessary to cause them to conform to the
evidence may be made upon motion of any party at any time, even after judgment;
3. BUT failure to amend does NOT affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground that it is not within the issues made
by the pleadings
1. The court may allow the pleadings to be amended;
2. It shall do so with liberality if the presentation of the merits of the action and the ends of
substantial justice will be subserved thereby;
3. The court may grant a continuance to enable the amendment to be made.
NOTES:
1. The adverse party may plead thereto within ten (10) days from notice of the order
admitting the supplemental pleading. The answer to the complaint shall serve as the answer
to the supplemental complaint if no new or supplemental answer is filed.
2. A supplemental pleading incorporates matters arising AFTER the filing of the complaint.
A supplemental pleading is always filed with leave of court. It does not result in the withdrawal
of the original complaint.
F. Summons
1. Nature and purpose of summons in relation to actions in personam, in rem
and quasi in rem
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
55
SUMMONS is a writ by which the defendant is notified of the action brought against him.
Service of such writ is the means by which the court may acquire jurisdiction over his person.
ALIAS SUMMONS – one issued by the clerk of court on demand of the plaintiff when the
original summons was returned without being served on any or all of the defendants, or when
summons has been lost. When issued, it supersedes the first summons.
2. Voluntary appearance
Rule 14, Sec. 20. Voluntary appearance.The defendant's voluntary appearance in the
action shall be equivalent to service of summons. The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction over the person of the defendant shall not be
deemed a voluntary appearance.
SUMMONS
Modes of Service of Summons
There are four (4) modes of serving summons:
1) personal service;
2) substituted service;
3) constructive service (by publication); and
4) extraterritorial service.
1. Actions in personam
a. To acquire jurisdiction over the person of the defendant; and
b. To give notice to the defendant that an action has been commenced against him
(Umandap vs. Sabio, Jr., G.R. No. 140244, August 29, 2000)
2. Actions in rem and quasi in rem – not to acquire jurisdiction over the defendant but
mainly to satisfy the constitutional requirement of due process (Gomez vs. CA, G.R. No.
127692, March 10, 2004).
3. Personal service
Rule 14, Sec. 6. Service in person on defendant.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
56
Whenever practicable, the summons shall be served by HANDING a copy thereof to the
defendant in person, or, if he refuses to receive and sign for it, by TENDERING it to him.
If there are two (2) or more defendants, each one of them should be served a copy of the
summons and the complaint (Bello vs. Ubo, 117 SCRA 91 [1982])
4. Substituted service
Rule 14, Sec. 7
If for justifiable causes, the defendant cannot personally be served with summons within
a reasonable time, service may be effected:
1) by leaving copies of the summons at the defendant’s RESIDENCE with some person of
suitable age and discretion then residing therein, or
2) by leaving the copies at the defendant’s OFFICE or regular place of business with some
competent person in charge thereof.
In substituted service, it is immaterial that the defendant does not in fact receive actual
notice. This will not affect the validity of the service.
For substituted service of summons to be available, there must be several attempts by the
sheriff to personally serve the summons within a reasonable period [of one month] which
eventually resulted in failure to prove impossibility of prompt service. “Several attempts” means
at least three (3) tries, preferably on at least two different dates. In addition, the sheriff must
cite why such efforts were unsuccessful. It is only then that impossibility of service can be
confirmed or accepted. (Manotoc vs. Court of Appeals, G.R. No. 130974, August 16, 2006, 499
SCRA 21)
If diligent efforts were undertaken by the Sheriff to serve summons upon the defendant but he
was PREVENTED from effecting such service by the DEFENDANT HIMSELF, summons shall
be deemed PROPERLY served and that the court has acquired jurisdiction over the person of
the defendant. (Robinson v. Miralles, supra)
Defendant’s filing of a motion for resetting of the hearing of the motion for execution effectively
cured the defect of the substituted service of summons. Although the substituted service of
summons on defendant is patently defective as the sheriff’s return does not contain any
statement with regard to the impossibility of personal service, said defect was cured by his
voluntary appearance therein. An appearance in whatever form without expressly objecting to
the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over
the person of the defendant or respondent. (Cezar vs. Ricafort-Bautista, G.R. No. 136415,.
October 31, 2006. )
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. 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. A
resident defendant who does not voluntarily appear in court, must be personally served with
summons as provided under Section 6, Rule 14 of the Rules of Court. (Biaco vs. Philippine
Countryside Rural Bank, G.R. No. 161417, February 8, 2007, 515 SCRA 106. )
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
57
Rule 14, Sec. 14. Service upon defendant whose identity or whereabouts are unknown. –
In ANY ACTION where the defendant is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry,
service may, by leave of court, be effected upon him by publication in a newspaper of
general circulation and in such places and for such time as the court may order.
N.B. When the defendant is a resident of the Philippines, service of summons by
publication is allowed in any action, even in actions in personam.
Hence, this can be allowed in a suit for collection of sum of money, which is an in
personam action.
In ANY suit against a resident of the Philippines temporarily absent from the country, the
defendant may be served by SUBSTITUTED service because he still leaves a definite place of
residence where he is bound to return.
NOTE:
a. The three modes of service of summons upon a non-resident must be made OUTSIDE
the Philippines, such as through the Philippine Embassy in a country where defendant
resides (Valmonte vs. CA, 252 SCRA 92 [1996]).
b. Service of summons on husband is not binding on wife who is a non-resident (ibid.)
Gemperle v. Shenker (G.R. No. L-18164, January 23, 1967) (In contrast to
Valmonte):The lower court had acquired jurisdiction over defendant husband, through service of
the summons addressed to him upon his wife, Mrs. Schenker, it appearing from said answer
that she is the representative and attorney-in-fact of her husband in the aforementioned civil
case, which apparently was filed at her behest, in her representative capacity..
NOTE:
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
58
Rule 14, Sec. 11. Service upon domestic private juridical entity. — When the defendant is
a corporation, partnership or association organized under the laws of the Philippines with a
juridical personality, service may be made on the president, managing partner, general
manager, corporate secretary, treasurer, or in house counsel.
Clearly, the summons was not served personally on the defendant (respondent) through any
of the officers enumerated in Section 11 of Rule 14; rather, summons was served by substituted
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
59
service on the defendant’s staff member, Romel Dolahoy. Substituted service was resorted
to on the server’s first attempt at service of summons, and there was no indication that
prior efforts were made to render prompt personal service on the defendant. (B. D. Long
Span Builders, Inc. vs. R. S. Ampeloquio Realty Development, Inc., G.R. No. 169919,
September 11, 2009
Service upon foreign private juridical entity (Rule 14, Sec. 12). — When the defendant is a
foreign private juridical entity which has transacted business in the Philippines, service may be
made on its resident agent designated in accordance with law for that purpose, or, if there be
no such agent, on the government official designated by law to that effect, or on any of its
officers or agents within the Philippines. If the foreign private juridical entity is not registered in
the Philippines or has no resident agent, service may, with leave of court, be effected out of
the Philippines through any of the following means:
This will be allowed only if there are well-pleaded allegations of having transacted or
doing business in the Philippines.
The fact of DOING BUSINESS in the Philippines must be established by appropriate
allegations in the complaint. The court need not go beyond the allegations of the complaint
in order to determine whether it has jurisdiction.
A determination that the foreign corporation is doing business is only tentative and is made
only for the purpose of enabling the local court to acquire jurisdiction over the foreign
corporation through service of summons pursuant to Rule 14, Section 12. Such
determination does not foreclose a contrary finding should evidence later show that it is not
transacting business in the country.
8. Proof of service
Rule 14, Sec. 18. Proof of service.
The proof of service of a summons shall be made in writing by the server and shall set
forth the manner, place, and date of service; shall specify any papers which have been
served with the process and the name of the person who received the same; and shall be
sworn to when made by a person other than a sheriff or his deputy.
G. Motions
1. Motions in general
a. Definition of a motion
Rule 15, Section 1. Motion defined.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
60
Rule 15, Sec. 6. Proof of service necessary. — No written motion set for hearing shall
be acted upon by the court without proof of service thereof.
Gen. Rule: All available grounds for objection in attacking a pleading, order, judgment,
or proceeding [POJP] should be invoked at one time; otherwise, they shall be deemed
waived
Exc. The court may dismiss the case motu proprio based on:
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia
3. Res judicata; and
4. Prescription [LLRP] (Rule 9, Sec. 1)
Ex parte motions- While a motion may be allowed to be filed ex parte and is an exception
to the 3-day notice rule, it does not necessarily mean that the hearing thereof shall be
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
61
dispensed with. The court may still hear the same ex parte, that is, in the absence of the
opposing party, since the court can very well see to it that the latter’s interests will be duly
protected. An ex parte proceeding merely means that it is taken or granted at the instance and
for the benefit of one party, and without notice to or contestation by any party adversely
affected. Ex. motion for extension of time to file answer; motion for postponement; motion for
extension of time to file record on appeal; motion to set case for pre-trial.
g. Pro-forma motions
A motion that does not comply with Rule 15, particularly Sections 4, 5 and 6 (hearing,
notice of hearing, proof of service), is a mere scrap of paper, should not be accepted for
filing and is not entitled to judicial cognizance and does not affect any reglementary period
involved for the filing of the requisite pleading.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
62
a. If the order directing the plaintiff to submit a bill of particulars is not complied
with, or in case of insufficient compliance,
b. the court may order
c. the STRIKING OUT of the pleading or the portion thereof to which the order was
directed or,
d. MAKE SUCH ORDERS as it DEEMS JUST. (Rule 12, Sec. 4)
3. Motion to Dismiss
Four general types of motion to dismiss under the Rules
1. Motion to dismiss before answer (Rule 16)
2. Motion to dismiss by plaintiff (Rule 17)
3. Motion to dismiss on demurrer to evidence after plaintiff has rested his case (Rule 33)
4. Motion to dismiss appeal either in RTC (Rule 41, Sec. 13), CA (Rule 50, Sec. 1) or SC
(Rule 56, Sec. 5)
1. When it appears from the pleadings or the evidence on record that the following grounds
for dismissal are present: lack of jurisdiction over the subject matter; litis pendentia; res
judicata and prescription (Rule 9, Sec. 1) - LLRP
2. If for no justifiable cause, the plaintiff fails to appear on the date of the presentatiion of
his evidence in chief on the complaint, or to prosecute his complaint for an unreasonable
length of time, or to comply with the Rules of Court or any order of the court (Rule 17,
Sec. 3); and
3. After an examination of the allegations in the complaint and such evidence attached
thereto, the court may dismiss the complaint outright on any of the grounds apparent
therefrom [ex. lack of jurisdiction] (Revised Rule on Summary Procedure, Sec. 4)
a. Grounds
What are the grounds for a motion to dismiss?(Rule 16, Section 1)
a. That the court has no jurisdiction over the person of the defending party;
b. That the court has no jurisdiction over the subject matter of the claim;
c. That venue is improperly laid;
d. That the plaintiff has no legal capacity to sue;
e. That there is another action pending between the same parties for the same
cause;
f. That the cause of action is barred by a prior judgment or by the statute of
limitations;
g. That the pleading asserting the claim states no cause of action;
h. That the claim or demand set forth in plaintiff’s pleading has been paid, waived,
abandoned, or otherwise extinguished;
i. That the claim on which the action is founded is unenforceable under the
provisions of the Statute of Frauds; and
j. That a condition precedent for filing the claim has not been complied with.
NOTES:
1. The motion must comply with Rule 15. The court is without authority to act on the
motion without PROOF OF SERVICE of the notice of hearing.
2. Waiver of defenses. Defenses and objections not pleaded whether in a motion to
dismiss or in the answer are deemed waived (Rule 9, Sec. 1, 1st sentence).
Defenses and objections not waived even if not raised in a motion to dismiss or
answer. The court shall motu proprio dismiss the claim when it appears from the
pleadings or the evidence on record that:
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
63
a. The court has no jurisdiction over the subject matter (lack of jurisdiction)
b. There is another action pending between the same parties for the same cause (litis
pendentia)
c. The action is barred by prior judgment (res judicata)
d. The action is barred by the statute of limitations (prescription) (Rule 9, Sec. 1, 2nd
sentence). [LLRP]
The court has no jurisdiction over the person of the defending party
The court has no jurisdiction over the subject matter of the claim.
b. In Pilipinas Shell Petroleum Corporation v. Dumlao, the Supreme Court held that a
person who has no interest in the estate of a deceased person has no legal capacity to file a
petition for letters of administration. With respect to foreign corporations, the qualifying
circumstances of plaintiff’s capacity to sue being an essential element must be affirmatively
pleaded. The qualifying circumstance is an essential part of the element of the plaintiff’s
capacity to sue. The complaint must either allege that it is doing business in the Philippines
with a license or that it is a foreign corporation not engaged in business and that it is suing in
an isolated transaction.
a. Rationale of the Rule: Like res judicata as a doctrine, litis pendentia is a sanction of
public policy against multiplicity of suits. The principle upon which a plea of another action
pending is sustained is that the latter action is deemed unnecessary and vexatious.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
64
(4) there must be, between the first and second actions, identity of parties, of subject
matter and of cause of action.
c. A judicial compromise has the effect of res judicata and is immediately executory and not
appealable. The ultimate test in ascertaining the identity of causes of action -- whether or
not the same evidence fully supports and establishes both the present cause of action and
the former cause of action. Only substantial, and not absolute, identity of parties is required
for res judicata.
NOTES:
a. Prescription and estoppel cannot be invoked against the State (Delos Reyes vs. CA,
January 27, 1998, 285 SCRA).
b. Even if the defense of prescription has not been raised in a motion to dismiss or an
answer, if the plaintiff’s complaint or evidence shows that the action had prescribed,
the action shall be dismissed. (Rule 9, Sec. 1)
c. Prescription cannot be invoked as a ground if the contract is alleged to be void ab initio
but where prescription depends on whether contract is void or voidable, there must be
a hearing.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
65
(4) facts which appear by record or document included in the pleadings to be unfounded
(5) matters of evidence
(6) surplusage and irrelevant matters
(7) scandalous matters
(8) averments contradicted by more specific averments
(9) conclusions or interpretations of law
(10) allegations of fact the falsity of which is subject to judicial notice (Tan vs. Director of
Forestry, 125 SCRA 302 [1982])
What is the issue in a motion to dismiss on the ground that the complaint states no
cause of action?
Admitting the allegations of the complaint, may the court render VALID JUDGMENT in
accordance with its prayer and the law?
NOTE:
a. The insufficiency of the cause of action must appear on the FACE OF THE COMPLAINT
to sustain a dismissal on that ground.
b. No extraneous matter may be considered nor facts alleged which would require
evidence and therefore, must be raised as defenses and await the trial.
The Claim or Demand Has Been Paid, Waived, Abandoned, or Otherwise Extinguished.
Under Art. 1231 of the Civil Code, obligations are extinguished:
(1) by payment or performance;
(2) by the loss of the thing due;
(3) by the condonation or remission of the debt;
(4) by the confusion or merger of rights of debtor and creditor;
(5) by compensation; and
(6) by novation
NOTES:
a. Where applied: The statute of frauds applies only to EXECUTORY CONTRACTS and
in actions for their SPECIFIC PERFORMANCE, not to those which have been totally or
partially performed. Performance, which must be proved, takes the contract out of the
operation of the principle (Tankiko vs. Cesar, 302 SCRA 559 [1999])
b. Purpose: To prevent fraud and perjury in the enforcement of obligations depending for
their evidence on the unassisted memory of witnesses by requiring certain contracts
and transactions to be in writing (Claudel vs. CA, 119 SCRA 113 [1999]).
A Condition Precedent For Filing The Claim Has Not Been Complied With
Where a condition precedent for filing the claim in court has not been complied with, the
cause of action has not accrued.
A complaint may be dismissed for FAILURE TO STATE A CAUSE OF ACTION if:
a. the case is between or among members of the SAME FAMILY and there is no
allegation that earnest efforts towards a COMPROMISE has been exerted, or
b. the claim is referable to the Katarungang Pambarangay and prior recourse to
barangay CONCILIATION has not been made, or
c. the case involves a matter which the law requires that there be EXHAUSTION of
ADMINISTRATIVE REMEDIES before a litigant is allowed to resort to court for
reliefs, except where the complaint alleges facts which bring the case under any of
the exceptions thereto (Sunville Timber Products, Inc. vs. Abad, 206 SCRA 582
[1992]).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
66
b. Resolution of Motion
Rule 16, Sec. 3. After the hearing, the court may
1) dismiss the action or claim,
2) deny the motion, or
3) order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground relied
upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor.
a. File his ANSWER (within the balance of the 15-day period to which he was entitled
at the time of serving the motion, but not less than 5 days in any event, computed
from his receipt of the order of denial – Rule 16, Sec. 4) and proceed with the
hearing before the trial court.
b. if the decision is adverse, APPEAL therefrom. The denial of the motion to dismiss
being interlocutory, cannot be questioned by certiorari; it cannot be the subject of
appeal until judgment is rendered (Casil vs. CA, January 28, 1998).
c. Exception: where the court denying the motion acts without or in excess of
jurisdiction or with grave abuse of discretion, the defendant may question the
denial by petition for CERTIORARI under Rule 65. Reason: it would be unfair to
require the defendant to undergo the ordeal and expense of trial under such
circumstances because the remedy of appeal then would not be plain and
adequate (Drilon vs. CA, March 20, 1997).
The dismissal of the complaint under this section shall be without prejudice to the
prosecution in the same or separate action of a counterclaim pleaded in the answer.
g. Bar by dismissal
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
67
See e above
A demurrer to evidence is differentiated from a motion to dismiss in that the former can be
availed of only after the presentation of plaintiff’s evidence while the latter is instituted as a
general rule before a responsive pleading is filed.
Distinction between motion to dismiss for failure to state a cause of action and to
dismiss based on lack of cause of action.
The first is raised in a motion to dismiss under Rule 16, Sec. 1 (g) before a responsive
pleading is filed and can be determined only from the ALLEGATIONS of the pleading and not
from evidentiary matters. The second is raised in a demurrer to evidence under Rule 33 after
the plaintiff has rested his case and can be resolved only on the basis of the EVIDENCE he has
presented in support of his claim(The Manila Banking Corp. vs. University of Baguio, Inc., G.R.
No. 159189, February 21, 2007)
When the motion for a demurrer to evidence is granted, the judgment of the court is
considered on the merits and so it has to comply with Rule 36, Section 1, regarding the
requirement that judgment should clearly and distinctly state the facts and the law on which it is
based. If the motion is denied, the order is merely interlocutory. (Nepomuceno vs.
Commission on Elections, G.R. No. 60601, December 29, 1983, 126 SCRA 472.)
H. Dismissal of Actions
1. Dismissal upon notice by plaintiff; Two-dismissal rule
1. NOTICE OF DISMISSAL OF COMPLAINT
A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time
before service of the answer or of a motion for summary judgment. (Rule 17, Sec. 1).
General rule: the dismissal of the complaint under this rule is WITHOUT PREJUDICE.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
68
Exceptions:
a. where the notice of dismissal so provides;
b. where the plaintiff has previously dismissed the same case in a court of competent
jurisdiction;
c. 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 claims involved. For the
notice of dismissal to be effective, there must be an order confirming the dismissal.
The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim,
or third-party complaint. A voluntary dismissal by the claimant by notice as in section 1 of this
Rule, shall be made before a responsive pleading or a motion for summary judgment is
served or, if there is none, before the introduction of evidence at the trial or hearing.
DISMISSALS
What dismissals are WITH prejudice?
a. Dismissal upon mere NOTICE without order of the court when filed by a party who was
once dismissed in a competent court an action based on or including the same claim
(Rule 17, Sec. 1).
b. Dismissal by order of the court upon a party’s MOTION which specifies that the same
shall be with prejudice to the filing of a subsequent action based on or including the
same claim (Rule 17, Sec. 2).
c. Dismissal upon motion of a defendant or on the court’s motion upon plaintiff’s
FAILURE TO PROSECUTE his claim (Rule 17, Sec. 3).
d. Dismissal as a result of plaintiff’s FAILURE TO APPEAR during the pre-trial, unless
otherwise ordered by the court (Rule 18, Sec. 5).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
69
I. Pre-trial
1. Concept of pre-trial
Pre-trial is a procedural device by which the Court is called upon after the filing of the last
pleading 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, such as the number of witnesses the parties intend to
present, the tenor or character of their testimonies, their documentary evidence, the nature
and purpose of each of them and the number of trial dates that each will need to put on his
case. One of the objectives of pre-trial procedure is to take the trial of cases out of the realm
of surprise and maneuvering. (Permanent Concrete Products, Inc. vs. Teodoro, G.R. No.
29776, November 29, 1968, 26 SCRA 332 )
Pre-trial also lays down the foundation and structural framework of another concept, that
is, the continuous trial system. (Circular No. 1-89, Administrative Circular No. 4, September
4, 1988) Pre-trial is mandatory but not jurisdictional. (Martinez vs. de la Merced, G.R. No.
82309, June 20, 1989, 174 SCRA 18)
Note: Section 4, Rule 18 imposes the duty on litigating parties and their respective
counsel to appear during pre-trial. The provision also provides for the instances where the
non-appearance of a party may be excused. Nothing, however, in Section 4 provides for a
sanction should the parties or their respective counsel be absent during pre-trial. Instead, the
penalty is provided for in Section 5. Notably, what Section 5 penalizes is the failure to appear
of either the plaintiff or the defendant, and not their respective counsel (Paredes vs. Verano,
G.R. No. 164375, October 12, 2006).)
Note: Pre-trial is mandatory in civil cases. In criminal cases, it is mandatory in cases cognizable
by the following:
1. Sandiganbayan
2. RTC
3. MeTC, MTCC, MTC, MCTC
It is also mandatory in both criminal and civil cases under the Rule on Summary Procedure. The
Court’s authority is confined to a mere determination of the propriety of rendering a judgment on
the pleadings or a summary judgment
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
70
3. Notice of pre-trial
Rule 18, Sec. 3. Notice of pre-trial.
The notice of pre-trial shall be served on counsel, or on the party who has no counsel.
The counsel served with such notice is charged with the duty of notifying the party
represented by him.
This has been superseded by A.M. No. 03-1-09-SC (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) which took effect on August 29, 2006. .
Under I.A.1.2 – Within 5 days after filing of the reply, the plaintiff must promptly move
ex parte that the case by set for pre-trial conference. If the plaintiff fails to file such motion
within the given period, the Branch Clerk of Court SHALL ISSUE A NOTICE OF PRE-
TRIAL.
2. If the defendant fails to appear – plaintiff shall be allowed to present his evidence
ex parte and the court shall render judgment on the basis thereof (Rule 18, Sec.
5, 3rd sentence).
5. Pre-trial brief
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
71
The pre-trial brief (to be filed at least three days before the pre-trial) shall contain the
following:
1. Statement of the parties’ willingness to enter into amicable settlement or alternative modes of
dispute resolution, indicating the desired terms
2. A summary of admitted facts and proposed stipulation of facts
3. Issues to be tried or resolved
4. Documents or exhibits to be presented, stating the purpose thereof (No evidence shall be
allowed to be presented and offered during the trial in support of a party's evidence-in-chief
other than those that had been earlier identified and pre-marked during the pre-trial, except if
allowed by the court for good cause shown (A.M. No. 03-1-09-SC)
5. A manifestation of their having availed OR their intention to avail themselves of discovery
procedures or referral to commissioners;
6. The number and names of witnesses and the substance of their testimonies (Rule 18, Sec. 6)
Parties are bound by the representations and statements in their respective pre-trial briefs as
such are in the nature of judicial admissions.
5. the sanction for non-appearance in a pre- 5. the sanction are imposed upon the counsel
trial are imposed upon the plaintiff and the for the accused or the prosecutor.
defendant in a civil case.
6. a pre-trial brief is required to be submitted 6. pre-trial brief is not required to be submitted.
(Civil Procedure, A Restatement of the Bar,
Willard B. Riano, 2009 Edition pp. 373-374)
Pre-Trial Order
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
72
The order of the court is issued upon the termination of the pre-trial.
The order shall contain
1. The matters taken up in the conference;
2. The action taken thereon;
3. The amendments allowed to the pleadings; and
4. The agreements or admissions made by the parties.
The pre-trial order shall define and limit the issues to be tried and shall control the subsequent
course of the action except if it is modified before trial to prevent manifest injustice (Rule 18,
Sec.7)
Coverage:
1. All civil cases, settlement of estates, and cases covered by the Rule on Summary Procedure,
except those which by law may not be compromised;
2. Cases cognizable by the Lupong Tagapamayapa under the Katarungang Pambarangay Law;
3. The civil aspect of BP 22 cases; and
4. The civil aspect of quasi offenses under Title 14 of the Revised Penal Code
The trial court, after determining the possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution, shall issue an Order referring the case to the Philippine
Mediation Center (PMC) Unit for mediation and directing the parties to proceed immediately to
the PMC Unit.
The Order shall be personally given to the parties during the pre-trial. Copy of the Order
together with a copy of the Complaint and Answer/s, shall be furnished the PMC Unit within the
same date
The Supervisor of the PMC Unit shall assist the parties select a mutually acceptable Mediator
from a list of duly accredited Mediators and inform the parties about the fees, if any, and the
mode of payment. If the parties cannot agree on a Mediator, then the Supervisor shall assign
the Mediator. The trial court shall immediately be notified of the name of the Mediator, and shall
thereafter confirm the selection/appointment of the Mediator. The Mediator shall immediately
commence the mediation proceedings unless both parties agree to reset the mediation within
the next five (5) working days, without need of further notice.
The period during which the case is undergoing mediation shall be excluded from the regular
and mandatory periods for trial and rendition of judgment in ordinary cases and in cases under
summary procedure.
The period for mediation shall not exceed (30) days, extendible for another 30 days, in order to
allow the parties sufficient time to reach a compromise agreement and put an end to litigation
In case of SUCCESSFUL settlement, the trial court shall immediately be informed and given (a)
the original Compromise Agreement entered into by the parties as basis for the rendition of a
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
73
judgment by compromise which may be enforced by execution or, (b) a withdrawal of the
Complaint or, (c) a satisfaction of the claim.
If the mediation is NOT SUCCESSFUL, the Mediator shall issue a “Certificate of Failed
Mediation” for the purpose of returning the case for further judicial proceeding
Since mediation is part of Pre-Trial, the trial court shall impose the appropriate sanction
including but not limited to censure, reprimand, contempt and such sanctions as are provided
under the Rules of Court for failure to appear for pre-trial, in case any or both of the parties
absent himself/themselves, or for abusive conduct during mediation proceedings
J. Intervention
INTERVENTION – is a legal proceeding by which a person who is NOT a party to the action is
permitted by the court to become a party by intervening in a pending action after meeting the
conditions and requirement set by the Rules of Court.
LEGAL INTEREST – one that is actual and material, direct and of an immediate character, not
merely contingent or expectant.
Intervention is NOT an absolute right (nor is it compulsory or mandatory), as it is within the
court’s discretion to grant the same.
Intervention is an ancillary and supplemental proceeding to an existing litigation. Thus, the
final dismissal of the principal action results in the denial for the motion to intervene.
Motion for intervention may only be filed BEFORE judgment is rendered by the trial court.
In the present case, the motions for intervention were filed after judgment had already been
rendered, indeed when the case was already final and executory. Certainly, intervention can no
longer be allowed in a case already terminated by final judgment.
Intervention is merely collateral or accessory or ancillary to the principal action, and not an
independent proceeding; it is an interlocutory proceeding dependent on or subsidiary to the case
between the original parties. Where the main action ceases to exist, there is no pending
proceeding wherein the intervention may be based. (Looyuko vs. Court of Appeals, G.R. No.
102696, July 12, 2001)
However, in some cases, the Supreme Court has allowed intervention after judgment, and in
one case even after the judgment had become final and executory, to “serve the ends of justice
and equity.” (Office of the Ombudsman vs. Miedes, Sr., G.R. No. 176409, February 27, 2008)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
74
exercised, is not reviewable by certiorari or mandamus save in instances where such discretion is
exercised in an arbitrary or capricious manner. (Gallego vs. Galang, G.R. No. 130228, July 27,
2004)
K. Subpoena
1. Subpoena duces tecum
Rule 21, Section 1. Subpoena and subpoena duces tecum.
Subpoena is a process directed to a person requiring him to attend and to testify at the
hearing or the trial of an action, or at any investigation conducted by competent authority, or
for the taking of his deposition. It may also require him to bring with him any books,
documents, or other things under his control, in which case it is called a subpoena duces
tecum.
2. Subpoena ad testificandum
A process directed to a person requiring him to attend and to testify at the hearing or the
trial of an action, or at any investigation conducted by competent authority, or for the taking
of his deposition. (Rule 21, Section 1)
It shall state the name of the court and the title of the action or investigation, shall be
directed to the person whose attendance is required, and in the case of a subpoena duces
tecum, it shall also contain a reasonable description of the books, documents or things
demanded which must appear to the court prima facie relevant ( Rule 21, Sec. 3)
3. Service of subpoena
Rule 21, Sec. 6. Service.
Service of a subpoena shall be made in the same manner as personal or substituted
service of summons. The original shall be exhibited and a copy thereof delivered to the
person on whom it is served, tendering to him the fees for one day’s attendance and the
kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf
of the Republic of the Philippines or an officer or agency thereof, the tender need not be
made. The service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or things demanded shall also be
tendered.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
75
not issued by a court, the disobedience thereto shall be punished in accordance with the
applicable law or Rule.
5. Quashing of subpoena
Rule 21, Sec. 4. Quashing a subpoena.
The court may quash a subpoena duces tecum upon motion promptly made and, in any
event, at or before the time specified therein if it is unreasonable and oppressive, or the
relevancy of the books, documents or things does not appear, or if the person in whose
behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.
The court may quash a subpoena ad testificandum on the ground that the witness is not
bound thereby. In either case, the subpoena may be quashed on the ground that the witness
fees and kilometrage allowed by these Rules were not tendered when the subpoena was
served.
L. Modes of Discovery
What modes of discovery may be availed of without leave of court and generally
without court intervention?
a. depositions (whether by oral examination or written interrogatories) under Rule 24)
b. interrrogatories to parties under Rule 25
c. requests for admission under Rule 26.
Under the Rules of Court, leave of court is not necessary to avail of said modes of
discovery after an answer to the complaint has been served. It is only when an answer has
not yet been filed (but after jurisdiction has been obtained over the defendant or property
subject of the action) that prior leave of court is needed, the reason being that at that time the
issues are not yet joined and the disputed facts are not clear.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
76
a. A method of discovery
Deposition is chiefly a mode of discovery. This purpose is evident from Section 2 of Rule
23 on the broad scope of examination 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,
the only requirement is that it be relevant and not privileged.
Note: The duties of the officer under Secs. 17, 19, 20, 21 & 22 of Rule 23 shall also be followed
on deposition upon written interrogatories (Rule 23, Secs. 26 & 27).
What are the contents of the motion for deposition pending appeal?
The motion shall state:
1. The names and addresses of the persons to be examined
2. The substance of the testimony which he expects to elicit from each
3. The reason for perpetuating their testimony (Sec. 7, Rule 24).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
77
Note: 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 (Rule 24, Sec. 7.
Examination and cross-examination of deponents may proceed as permitted at the trial under
sections 3 to 18 of Rule 132.
A deposition is not generally supposed to be a substitute for the actual testimony in open court
of a party or witness. If the witness is available to testify, he should be presented in court to
testify. If available to testify, a party’s or witness’ deposition is inadmissible in evidence for
being hearsay. The exceptions however to the inadmissibility of such deposition are provided for
in Rule 23, Section 4. (Rule 23, Sec. 3)
The exception will NOT apply if the deposition used is that of an opposing party or the
deposition is used to impeach or contradict the deponent – Deponent still NOT a witness of the
party taking the deposition.
Use of depositions
Any part or all of the deposition, so far as admissible under the rules of evidence, may be used
1) Against any party who was present or represented at the taking of the deposition; or
2) Against one who had due notice of the deposition.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
78
d) That the party offering the deposition has been unable to procure the attendance of the
witness by subpoena; or
e) Upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice to allow the deposition to be used. (Rule 23, Sec. 4)
Note: 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.
When may the court 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 (Rule
23, Sec. 16,).
This section refers to protection orders during examination either by the court in which
the action is pending or where the deposition is being taken. When the constitutional
privilege against self-incrimination is invoked by deponent or his counsel, the trial court may
stop the examination to protect the deponent’s constitutional right. Other grounds, such as bad
faith which unreasonably annoy, embarrass or harass deponent or party may likewise be
invoked.
Written interrogatories elicit material and relevant facts from any adverse party (Note:
answers may also be used as admissions of the adverse party). .(Rule 25, Section 1)
Answer to interrogatories
The interrogatories shall be ANSWERED FULLY in writing and shall be signed and sworn
to by the person making them. Such answer shall be filed and served to the party submitting the
interrogatory within fifteen (15) days from service of such interrogatories UNLESS the court on
motion and for good cause extends or shortens the time.(Rule 25, Sec. 2)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
79
Objections to interrogatories
1. May be presented to the court within 10 days after service thereof, with notice as in the case of
motions.
2. Answers shall be deferred until objections are resolved, which shall be at the earliest
possible time. (Rule 25, Sec. 3)
Objections to any request for admission shall be submitted to the court WITHIN the period for
and PRIOR to the filing of the sworn statement - Fifteen (15) days after service of request.
Compliance shall be deferred until such objections have been resolved by the court. (Rule 26,
Sec. 2)
(2) if the party to whom the request is made does NOT file and serve a sworn statement
EITHER a) denying specifically the matters of which an admission is requested OR b) setting
forth the reasons why he cannot either admit or deny those matters
(3) within fifteen (15) days after service thereof or with such further time as the court may
allow on motion
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
80
Objections to any request for admission shall be submitted to the court by the party
requested within the period for and prior to the filing of his sworn statement as contemplated in
the preceding paragraph (15 days).
His compliance therewith shall be deferred until such objections are resolved, which
resolution shall be made as early as practicable. (Rule 26 Sec. 2)
The request for admission must be SERVED directly upon the PARTY REQUESTED.
Otherwise, that party cannot be deemed to have admitted the genuineness of any relevant
matters of fact set forth therein on account of failure to answer the request for admission.
(Nestle Philippines, Inc. and Santos vs. Court of Appeals and Sps. Hemedez, G. R. No.
102404, February 1, 2002).
c. Effect of admission
Any admission made 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.
The admission may NOT be used against the party who made it in any other proceeding.
(Rule 26, Sec. 3)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
81
This mode of discovery does not mean that the person who is required to produce the
document or the thing will be deprived of its possession even temporarily. It is enough that the
requesting party be given the opportunity to inspect or copy or photograph the document or take
a look at the thing.
Since the results of the examination are intended to be made public, the same are not
covered by the physician-patient privilege (Sec 24(c), Rule 130). Also, unlike the privilege,
the examination is not done to treat or cure the patient.
The party examined MAY request the party causing the examination to be made to deliver to
him a copy of a detailed report of the examining physician setting out his findings and
conclusions (Rule 28, Sec. 3).
Waiver of Privilege
By requesting and obtaining a report of the examination or by taking the deposition of the
examiner, the party examined WAIVES any privilege he may have in that action or any other
involving the same controversy regarding the testimony of every other person who has
examined or may thereafter examine him in respect of the same mental or physical examination
(Rule 28, Sec. 4).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
82
If a party –
1. FAILS TO APPEAR before the officer who is to take his deposition;
2. FAILS TO SERVE ANSWERS to interrogatories submitted under Rule 25
M. Trial
1. Adjournments and postponements
Rule 30, Sec. 2. Adjournments and postponements.
A court may adjourn a trial from day to day, and to any stated time, as the expeditious and
convenient transaction of business may require, but shall have no power to adjourn a trial for
a longer period than one month for each adjournment, nor more than three months in all,
except when authorized in writing by the Court Administrator, Supreme Court.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
83
7. Trial by commissioners
a. Reference by consent or ordered on motion
Rule 32, Section 1. Reference by consent.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
84
By written consent of both parties, the court may order any or all of the issues in a case to
be referred to a commissioner to be agreed upon by the parties or to be appointed by the
court. As used in these Rules, the word "commissioner" includes a referee, an auditor and an
examiner.
(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.
N. Demurrer to Evidence
1. Ground
Rule 33, Section 1. Demurrer to evidence.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
85
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.
2. Effect of denial
If his motion is denied, he shall have the right to present evidence.
3. Effect of grant
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.
DEMURRER TO EVIDENCE
Distinction between motion to dismiss for failure to state a cause of action and motion to
dismiss based on lack of cause of action.
The first is raised in a motion to dismiss under Rule 16, Sec. 1 (g) before a responsive
pleading is filed and can be determined only from the allegations of the pleading and not from
evidentiary matters. The second is raised in a demurrer to evidence under Rule 33 after the
plaintiff has rested his case and can be resolved only on the basis of the evidence he has
presented in support of his claim(The Manila Banking Corp. vs. University of Baguio, Inc.,
G.R. No. 159189, February 21, 2007)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
86
2. Contents of a judgment
Rule 36 - Section 1. Rendition of judgments and final orders.
A judgment or final order determining the merits of the case shall be in writing personally
and directly prepared by the judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him, and filed with the clerk of the court.
NOTES:
1. The plaintiff must file a motion for judgment on the pleadings. The court cannot
motu proprio render judgment on the pleadings. (Pineda vs. Guevara, G.R. No. 143188,
February 14, 2007)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
87
plaintiff may not move for judgment on the pleadings. The court should order the prosecutor
to investigate whether or not a COLLUSION exists between the parties. If there is collusion,
the case should be dismissed. If there is no collusion, the prosecutor should intervene for the
State in order to see if the evidence submitted is not fabricated (Rule 9, Sec. 3 (e).
If there is no controverted matter in the case after the answer is filed, the trial court has
the discretion to grant a motion for judgment on the pleadings filed by a party. Where there
are actual issues raised in the answer, such as one involving damages, which require the
presentation of evidence and assessment thereof by the trial court, it is improper for a judge
to render judgment based on the pleadings alone. (Spouses Hontiveros v. Regional Trial
Court of Iloilo, Br. 25, G.R. No. 125465, June 29, 1999, 309 SCRA 340. )
4. Summary judgments
What is a summary judgment?
One granted by the court, upon motion of either party, for an expeditious settlement of
the case, there appearing from the pleadings, depositions, admissions and affidavits that NO
GENUINE ISSUES OF FACT are involved (except the determination of the amount of
damages) and that therefore the moving party is entitled to a judgment as a matter of law.
It is also proper where the facts appear undisputed and certain from the pleadings,
depositions, admissions and affidavits, so that the ONLY ISSUE is ONE OF LAW.
NOTES:
1. Genuine issue – issue of law which calls for the PRESENTATION OF EVIDENCE
as distinguished from an issue which is sham, fictitious, contrived, set up in bad
faith and patently unsubstantial so as not to constitute a genuine issue for trial
(Paz vs. CA, 181 SCRA 26 [1990]).
2. Although an answer may on its face tender issues requiring trial, yet if its
demonstrated by affidavits, depositions or admission s that those issues are NOT
GENUINE but sham or fictitious, the court is justified in DISPENSING WITH THE
TRIAL and rendering judgment for plaintiff.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
88
If on motion under this Rule, judgment is not rendered upon the whole case or for all the
reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining
the pleadings and the evidence before it and by interrogating counsel shall ascertain what
material facts exist without substantial controversy and what are actually and in good faith
controverted. It shall thereupon make an order specifying the facts that appear without
substantial controversy, including the extent to which the amount of damages or other relief
is not in controversy, and directing such further proceedings in the action as are just. The
facts so specified shall be deemed established, and the trial shall be conducted on the
controverted facts accordingly.
In a motion for summary judgment, the crucial question is: are the issues raised in the
pleadings genuine, sham or fictitious, as shown by affidavits, depositions or admissions
accompanying the motion? A GENUINE ISSUE means an issue of fact which calls for the
presentation of evidence. The plaintiff cannot be said to have admitted the averments in the
defendant’s motion for partial summary judgment and its supporting affidavit just because he
failed to file an opposing affidavit. Section 3, Rule 35 did not make the submission of an
opposing affidavit mandatory. (Manufacturers Hanover Trust Co. vs. Guerrero, G.R. No.
136804, February 19, 2003)
When, on their face, the pleadings tender a genuine issue, summary judgment is
not proper. (Evadel Realty and Development Corporation vs. Soriano, G.R. No. 144291,
April 20, 2001, 357 SCRA 395). The test for the propriety of a motion for summary
judgment is whether the pleadings, affidavits and exhibits in support of the motion are
sufficient to overcome the opposing papers and to justify the findings that, as a matter of law,
there is no defense to the action or the claim is clearly meritorious. (Estrada vs.
Consolacion, No. L-40948, June 29, 1976, 71 SCRA 523;
In summary judgments, the trial court can determine a genuine issue on the basis of the
pleadings, admissions, documents, affidavits or counter affidavits submitted by the parties.
When the facts as pleaded appear uncontested or undisputed, then there is no real or
genuine issue or question as to any fact, and summary judgment is called for (Bitanga vs.
Pyramid Construction Engineering Corp., G.R. No. 173526, August 28, 2008).
Courts are without discretion to deny a motion for summary judgment where there is no
genuine issue as to a material fact. Summary judgment is available even if the pleadings
ostensibly show genuine issue which by depositions or affidavits are shown not to be
genuine. (Diman v. Alumbres, G.R. No. 131466, November 27, 1998, 299 SCRA 459)
A partial summary judgment may be rendered (Rule 35, Sec. 4) but the same is
interlocutory and not appealable. (Guevarra v. Court of Appeals, Nos. L-49024, August 30,
1983, 124 SCRA 297.)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
89
JUDGMENT
Amendment of judgment before it becomes final and executory
Courts have inherent power to amend their judgments, to make them conformable to the
law applicable provided that said judgments have not yet attained finality. In fact, motions for
reconsideration are allowed to convince the court that their rulings are erroneous and
improper ( Eternal Gardens Memorial vs. IAC, 165 SCRA 439 [1988]).
When it finds that the ends of justice would be better served, the court may disregard
technicalities and amend its order or process that had not become final (Villanueva vs. CFI of
Oriental Mindoro, 119 SCRA 288).
Instances where a court has authority to amend judgments that are already final
a. Correction of clerical errors; nunc pro tunc entries which cause no prejudice to any party;
where judgment is void (Nunal vs. CA, supra).
b. Where there is an AMBIGUITY caused by an omission or mistake in the dispositive
portion of a decision, the court may clarify such ambiguity by an amendment even after
the judgment had become final. For this purpose, it may resort to the pleadings filed by
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
90
the parties and the court’s findings of fact and conclusions of law expressed in the body of
the decision (Presbiterio vs. CA, 129 SCRA 450).
c. Where FACTS AND CIRCUMSTANCES transpire which render its execution
IMPOSSIBLE AND UNJUST and it therefore becomes necessary in the interest of justice,
to direct its modification in order to harmonize the disposition with the prevailing
circumstances.
Example: As observed by the Solicitor General, it may be true that the amount of
backwages and other benefits due to the private respondents as recomputed, is not in
harmony with the literal import of the dispositive portion of the decision subject of execution.
However, at the time the recomputation was made in 1992, 5 years had already elapsed
from the time the labor arbiter rendered his decision on February 26, 1987. Thus, a
recomputation was necessary to arrive at a just and proper determination of the monetary
awards due the private respondents. (Industrial Timber Corp. vs. NLRC, 233 SCRA 597
[1994] )
Where judgment has become final, what is the remedy for inclusion of a party-heir?
After the decision became final and executory, the trial judge lost jurisdiction over the
case. Any modification that he would make, i.e., the inclusion of Mary Lyon Martin would be
in excess of his authority. The remedy of Mary is to file an INDEPENDENT SUIT against the
parties and all other heirs for her share in the subject property, in order that all the parties in
interest can prove their respective claims (Nunal vs. CA, supra).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
91
a. FAME
(1) Fraud must be extrinsic or collateral, the kind of fraud which prevented the aggrieved
party from having a trial or presenting his case to the court, or was used to procure the
judgment without fair submission of the controversy. Examples: acts intended to keep the
unsuccessful party away from the court by a false promise of compromise, or purposely keeps
him in ignorance of the suit, or where the attorney fraudulently pretends to represent a party and
connives at his defeat, or corruptly sells out his client’s interest. ( Magno v. Court of Appeals, N.
L-28486, September 10, 1981, 107 SCRA 819.) Distinguished from intrinsic fraud which refers
to the acts of a party at the trial which prevented a fair and just determination of the case (
Palanca v. American Food Manufacturing Co., Inc., No. L-22822, August 30, 1968, 24 SCRA
819.) and which could have been litigated and determined at the trial or adjudication of the
cases, such as falsification, false testimony and so forth, and does not constitute a ground for
new trial. (Tarca v. Vda. De Carretero, 99 Phil. 419 [1956]; Conde v. Intermediate Appellate
Court, No. L-70443, September 15, 1986, 144 SCRA 144)
(2) Mistake generally refers to mistakes of fact but may also include mistakes of law where,
in good faith, the defendant was misled in the case. Thus, a mistake as to the scope and extent
of the coverage of an ordinance, (City of Iloilo v. Pinzon, 97 Phil.968 [Unreported] [1955].) or a
mistake as to the effect of a compromise agreement upon the need for answering a complaint,
(Salazar v. Salazar, 8 Phil. 183 [1907].) although actually constituting mistakes of law, have
been considered sufficient to warrant a new trial.
(3) Negligence must be excusable and generally imputable to the party but the negligence
of counsel is binding on the client just as the latter is bound by the mistakes of his lawyer.
(Gaba v. Castro, No. L-56171, January 1, 1983, 120 SCRA 505; Ayllon v. Sevilla, No. L-79244,
December 10, 1987, 156 SCRA 257.) However, negligence of the counsel may also be a
ground for new trial if it was so great such that the party was prejudiced and prevented from
fairly presenting his case. (People v. Manzanilla, 43 Phil. 167 [1922]; cf. Republic v. Arro, No.
L-48241, June 11, 1987, 150 SCRA 625.)
A motion for new trial based on FAME shall be supported by affidavits of merits which may
be rebutted by affidavits.
An affidavit of merits is one which states:
a) the nature or character of the fraud, accident, mistake or excusable negligence on which
the motion for new trial is based;
b) the facts constituting the movant’s good and substantial defenses or valid causes of
action (Ferrer v. Yap Sepeng, No. L-39373, September 30, 1974, 60 SCRA 149. )
An affidavit of merits should state facts and not mere opinions or conclusions of law. (Malipol v.
Tan, No. L-27730, January 2, 1974, 55 SCRA 202). Affidavits of merits may be dispensed with
when the judgment is null and void as where the court has no jurisdiction over the defendant or
the subject matter (Republic v. De Leon, 101 Phil. 773 [1957]) or is procedurally defective as
where judgment by default was rendered before the reglementary period to answer had expired,
as when no notice of hearing was furnished him in advance. (Solaria v. Cruz, G.R. No. 20738,
January 31, 1966, 16 SCRA 114). Affidavits of merits are not required in motions for
reconsideration (Mendoza v. Bautista, No. L-45885, April 8, 1983, 121 SCRA 760).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
92
- if presented would probably alter the result of the action. (National Shipyards and Steel
Corporation vs. Asuncion, 103 Phil. 67 [1958].) Mere initial hostility of a witness at the trial
does not constitute his testimony into newly discovered evidence. (Arce vs. Arce, 106 Phil.
630 [1959].)
Yes. A second motion for new trial is authorized. A motion for new trial shall include all
grounds then available and those not so included are deemed waived. However, when a ground
for a new trial was not existing or available when the first motion was made, a second motion for
new trial may be filed within the period allowed but excluding the time during which the first
motion had been pending (Rule 37, Sec. 5).
Is a motion for extension of time to file a motion for new trial or reconsideration
allowed?
NO. A motion for extension of time to file a motion for new trial or reconsideration is not
allowed (Rule 40, Sec. 2; Rule 41, Sec. 3).
Exception: Said motion can be filed in the SUPREME COURT (Habaluyas Enterprises vs.
Japson, 142 SCRA 208 [1988]; Argel vs. CA, 316 SCRA 511 [1999]).
Although a motion for reconsideration may merely reiterate issues already passed
upon by the court, that by itself does not make it pro forma.
Otherwise, after the decision is rendered, the losing party would be confined to motions
for reopening and new trial (Marina Properties Corporation vs. CA, 294 SCRA 273 [1998]).
b. When to file
1. Time to File
A motion for reconsideration or new trial may be filed within the period for taking appeal.
Note that a pro forma motion for new trial or reconsideration shall not toll the reglementary
period. A pro forma motion for reconsideration or new trial is one which does not comply
with the requirements of Rule 37 and does not toll the reglementary period to appeal.
(Cledera vs. Sarmiento, Nos. L-32450-51, June 10, 1971, 39 SCRA 552; Firme vs. Reyes,
No. 35858, August21, 1979, 92 SCRA 713.)
2. A motion for reconsideration or new trial suspends the running of the period to appeal
but if denied, the movant has only the balance of the reglementary period within which to
take his appeal. (Rule 41, Sec. 3 ). This is subject to Neypes vs. CA ruling.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
93
In ordinary appeal under Rules 40 and 41, a party is now given a fresh period of 15
days from denial of motion for reconsideration or new trial within which to file notice
of appeal (Neypes vs. CA, G.R. No. 141524, September 14, 2005, 469 SCRA 633)
2. Appeals in General
a. Judgments and final orders subject to appeal
What can be appealed?
Only a final order or judgment on the merits may be the subject of an appeal.
Final order – one which disposes of the whole subject matter or terminates a particular
proceeding or action, leaving nothing to be done but to enforce by executing what has been
determined.
Interlocutory order – one which does not dispose of the case completely but leaves
something to be done upon its merits.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
94
A. NOT YET FINAL AND UNAPPEALABLE – there are three modes of reviewing on
appeal a judgment or final order:
1. ORDINARY APPEAL
a. perfected by filing a notice of appeal in the trial court within the period specified in
the Rules of Court.
b. appeal will be upon errors or questions of fact and law.
c. this mode applies to final judgments or orders:
of MTC to RTC (Rule 40)
of RTC (rendered in the exercise of original jurisdiction) to CA (Rule 41)
of RTC to SB (PD 1606, am. by RA 8249)
of RTC to CA (Rule 122, as am. by A.M. No. 00-5-03-SC, Oct. 15, 2004)
of SB to SC (P.D. 1606, as am. by RA 8249)
of CA to SC (Rule 124, as am. by
A.M. No. 00-5-03-SC, Oct. 15, 2004)
a. to CA
b. from RTC - if judgment to be appealed from is rendered in the exercise of its
appellate jurisdiction (Rule 42)
c. from quasi-judicial agency (Rule 43)
a. to SC under Rule 45
b. upon pure questions of law
c. from RTC, CA, SB or CTA
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
95
1) An order denying a motion for new trial or reconsideration; (Deleted by A.M. No.
07-7-12-SC dated December 4, 2007, which took effect on December 27, 2007,
governing amendments to Rules 41, 45, 58 and 65. Effect: neither appeal nor
certiorari is a remedy. The remedy is appeal from the judgment or final order [Sec. 9,
Rule 37]. However, certiorari may be availed of if the order subject of the motion for
reconsideration is an interlocutory order)
1) An order denying a petition for relief or any similar motion seeking relief from
judgment;
2) An interlocutory order;
3) An order disallowing or dismissing an appeal;
4) 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;
5) An order of execution;
6) 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
7) An order dismissing an action without prejudice.
The remedy against a dismissal of an action without prejudice is to file another action,
unless there are grounds for commencing a special civil action for certiorari.
Under Sec. 5, Rule 18 (Pre-trial), failure of plaintiff to appear at the pre-trial conference
shall be a cause for dismissal of the action. - - This dismissal shall be with prejudice unless
otherwise ordered by the court.
If the dismissal is expressly stated to be without prejudice, plaintiff cannot appeal
because he can file another action.
If the dismissal is with prejudice, remedy of plaintiff is to appeal from the order of
dismissal, which, being with prejudice, is a final resolution of the case.
d. Modes of appeal
Same period to appeal – 15 days from notice of judgment or final order; 30 days where
record on appeal is required (in certain sp. proc. and other cases of multiple or separate
appeals).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
96
NOTES:
1. Period to file notice of appeal cannot be extended. No motion to that effect shall be
allowed.
2. 15 or 30 day period interrupted by timely filing of motion for new trial or
reconsideration.
3. Filing of motion for new trial and reconsideration cannot be extended (exc. by the Supreme
Court).
4. Appellant has only remaining period to file notice of appeal after denial of motion for new
trial or reconsideration.
N.B. “not less than 5 days in any event” rule applies only to filing of answer after denial of
motion to dismiss (Rule 16, Sec. 4); denial of motion for bill of particulars or service of BOP
(Rule 12, Sec. 5); denial of motion to dismiss in interpleader (Rule 62, Sec. 4); and filing of
petition for certiorari against COA and COMELEC decisions (Rule 64, Sec. 3).
5. Fresh period of 15 days from denial of motion for reconsideration or new trial (Neypes
vs. CA, 469 SCRA 633 [2005]).
Same manner of perfection - Perfection of appeal and effect thereof in both appeals from
MTC to RTC and RTC to CA – governed by Sec. 9, Rule 41.
Residual powers
Sec. 9, last par., Rule 41, applicable to MTC pursuant to Sec. 9, Rule 40 (“Other provs. 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.”)
Prior to transmittal of original record or record on appeal, the court may –
1. Issue orders for the protection and preservation of the rights of the parties which
do not involve any matter litigated in the appeal.
2. Approve compromises
3. Permit appeals of indigent parties
4. Order execution pending appeal in acc. with Sec. 2, Rule 39.
5. Allow withdrawal of appeal [IAPOA]
NOTES:
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
97
1. Payment of prescribed docket fees within the prescribed period, both mandatory
and jurisdictional, noncompliance with which is fatal to an appeal. Without such
payment, the appeal is not perfected (Cu-Unjieng vs. CA, 479 SCRA 594 [2006])
2. Non-payment of docket fees within prescribed period -- ground for dismissal of an
appeal; rules relaxed only for the most persuasive and weighty reasons (Far
Corporation vs. Magdaluyo, 443 SCRA 218 [2004]).
Special Agrarian Court decisions (LBP vs. De Leon, 388 SCRA 537; LBP vs. De Leon,
399 SCRA 376).
1. Judgments and final orders issued under the Labor Code (Sec. 2).
NLRC decisions (St. Martin Funeral Home vs. NLRC, 295 SCRA 494)
– petition for certiorari to CA under Rule 65.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
98
a. Petition for review (7 legible copies with original copy indicated as such) within 15
days from notice of decision, final order, resolution, etc. or denial of MNT or MR (or
from date of last publication, if publication acquired for its effectivity) – Sec. 1, Rule
42; Sec. 4, Rule 43
b. Extendible 15 days, and no further extension except for the most compelling
reason and not to exceed 15 days (Id.)
c. Only one (1) MR allowed (Sec. 4, Rule 43). Deemed to apply also to Rule 42.
2. Service of copy of petition on lower court and adverse party - - serves as notice of appeal.
(Sec. 1, Rule 42; Sec. 5, Rule 43)
3. Payment to CA clerk of court of docketing and other lawful fees and deposit for costs.
(Id.)
4. Perfection of appeal – as to petitioner, upon timely filing of petition and payment of
docket and other lawful fees. (Id.)
Court or agency loses jurisdiction over case upon perfection of appeals filed in due time
and expiration of time to appeal of other parties (Sec. 8, Rule 42). No similar provision in
Rule 43, but apparently appeal also perfected in same manner.
> Mere filing of a motion for extension of time to file petition for review under Rule 42 is
not sufficient. Unless the appeal is perfected by timely filing of the petition and payment of
docket and other lawful fees, the Court of Appeals does not acquire jurisdiction over the case
(Fernandez vs. CA, 458 SCRA 454
CA MAY REQUIRE respondent to file COMMENT on the petition, within 10 days from
notice, or DISMISS petition if it finds the same to be (a) patently without merit, (b) prosecuted
manifestly for delay, or (c) questions raised too unsubstantial to require consideration.(PPQ)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
99
lower court has committed an error of fact or law that will warrant a reversal or modification of
the appealed decision, award, judgment, final order or resolution. Otherwise, dismissed.
.
Where Rules 42 and 43 differ
Rule 42
Sec. 8. Perfection of appeal; effect thereof.
(b) Except in civil cases decided under the Rule on Summary Proceeding, the appeal
SHALL STAY the judgment of final order unless the CA, the law, or these Rules shall provide
otherwise.
Sec. 21, Rule on Summary Procedure:
The decision of the Regional Trial Court in civil cases governed by this Rule,
including forcible entry and unlawful detainer, shall be IMMEDIATELY EXECUTORY,
without prejudice to a further appeal that may be taken therefrom.
Rule 43
Sec. 12. Effect of appeal – 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.
N.B. Court of Appeals injunctive orders are not binding on the Ombudsman
in administrative disciplinary cases. (Buencamino vs. CA, April 12, 2007,
Office of the Ombudsman vs. Samaniego (Resolution dated October 5,
2010) and Facura vs. CA, February 16, 2011).
Appeal by petition for review under Rule 43 requires that petitioner has EXHAUSTED ALL
ADMINISTRATIVE REMEDIES and that a final order or decision has been rendered by the
administrative body in the exercise of its quasi-judicial functions. If there is no exhaustion or
administrative remedies, appeal by petition for review may not be the appropriate remedy but a
special civil action under Rule 65
a. Failure to comply strictly with its requirements shall be sufficient ground for
dismissal – Rule 42, Sec. 3; Rule 43, Sec. 7
b. The fact that petitioner has complied with all its requirements is no assurance that
the petition will be given due course, as CA will still have to be convinced that
court or agency concerned has committed prima facie an error of fact or law that
will warrant reversal or modification of the appealed decision before it may be
given due course – Rule 42, Sec. 6; Rule 43, Sec. 10
a. Verified petition within 15 days from notice of decision, final order of resolution or
denial of MNT or MR. (Secs. 1 & 2)
On motion duly filed and served, with payment of full amount of docket and other
lawful fees and deposit for costs before expiration of reglementary period --
extension of 30 days only for justifiable reasons.
b. Docket and other lawful fees, deposit for costs (Sec. 3)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
100
- appellate court renders its own decision affirming, reversing or modifying judgment or
order appealed from
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
101
- court cannot reverse inferior court’s decision and render a contrary one, but can only
annul or modify act complained of and all proceedings flowing therefrom
6. Petition for Review under Rule 45 and special civil action under Rule 65 mutually
exclusive
Special civil action under Rule 65 may not be allowed as a substitute for failure to file petition
under Rule 45 (Linzag vs. CA, 291 SCRA 304 [1998]).
However, in the interest of justice, SC may consider petition for certiorari under Rule 65
as a petition for review under Rule 45, provided latter is filed within the required period
(Banco Filipino Savings and Mortgage Bank vs. CA, 334 SCRA 305 [2000]).
Petition for review under Rule 45 may be treated as a petition for certiorari under Rule
65, in the interest of substantial justice. Dismissal of appeal purely on technical grounds is
frowned upon where the policy of the courts is to encourage hearing of appeals on the
merits. The rules of procedure ought not to applied in a very rigid technical sense, as they
are used only to help, not override, substantial justice.
The strict application of procedural technicalities should not hinder the speedy disposition of
the case on the merits (Ramiscal vs. Sandiganbayan, 446 SCRA 166 [2004]). Callejo
Petition for review can be considered as a petition for certiorari, in the interest of
justice. -- Petitioner came to know of the judgment by default after it was promulgated by the
trial court while appeal was still available. In fact, she filed a motion for reconsideration which
was denied. What she should have done was to file an ordinary appeal with the Court of
Appeals. Instead, she came directly to this Court via a petition for review on certiorari.
However, in the interest of justice, we consider the instant petition, pro hac vice, a petition for
certiorari under Rule 65, it appearing that the trial court committed grave abuse of discretion
in rendering the judgment by default. (Tan vs. Dumarpa, 438 SCRA 659 [2004])
Petitioner cannot file an “alternative” petition, i.e., delegating to the Supreme Court
the task of determining under which rule the petition should fall - petition for review on
certiorari under Rule 45 or certiorari under Rule 65. In this case, appeal was not only
available but also a speedy and adequate remedy. Petitioner should have filed a petition for
review. Under Rule 56, Section 5 (f), a wrong or inappropriate mode of appeal, as in this
case, merits an outright dismissal. (Chua vs. Santos, 440 SCRA 365 [2004]) Callejo
Petition for review on certiorari is the proper remedy to assail the Court of Appeals’
decision denying a petition for certiorari. Since petitioner filed instead a petition for
relief from judgment, the CA decision became final. After the CA denied his petition for
relief from judgment, petitioner filed a petition for review with the Supreme Court seeking a
reversal and setting aside of both CA decisions. Futile because of the finality of the earlier
decision and the fact that a petition for certiorari, not a petition for review, is the correct
remedy against a denial of a petition for relief from judgment (Section 1 (b), Rule 41)
(Azucena vs. Foreign Manpower Services, Inc. 441 SCRA 346 [2004]). Carpio-Morales
Motion for reconsideration not a sine qua non for filing of a petition for review under
Rule 45. – We do not agree with the contention of respondent that a motion for
reconsideration ought to have been filed before the filing of the instant petition
(Commissioner of Internal Revenue vs. Hantex Trading Co., Inc., 454 SCRA 301 [2005]).
Callejo)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
102
surmises or conjectures
2. when inference made is manifestly mistaken, absurd or impossible
3. when there is grave abuse of discretion
4. when judgment is based on misapprehension of facts
5. when findings of fact are conflicting
6. when lower court, in making its findings, went beyond issues of the
case and the same is contrary to admissions of both appellant and
appellee
7. when findings of fact of CA are contrary to those of trial court
8. when findings of fact are conclusions without citation of specific
evidence on which they are based
9. when facts set forth in petition as well in petitioner’s main and
reply briefs are not disputed by respondent
10. when findings of fact are premised on supposed absence of
evidence and are contradicted by evidence on record
11. where decision contains merely a restatement of the evidence
but does not make any findings of fact
Additional exception:
Those filed under Writs of amparo, habeas data, or kalikasan.
Judicial Courtesy
Rule of judicial courtesy, meaning holding in abeyance the execution of a judgment because
of a pending petition for certiorari with the higher court, even without the issuance of a
temporary restraining order. In Eternal Garderns Memorial Corp. vs. CA (164 SCRA 421
[1988]), the role of judicial courtesy would apply ONLY if there is a string probability that the
issues before the higher court would be rendered MOOT AND MORIBUND as a result of the
continuation of the proceedings in the lower court.
f. Period of appeal
Period of time to appeal must be strictly enforced on considerations of public policy. The
period is mandatory and jurisdictional (Government Service Insurance System v. Gines, G.R.
No. 85273, March 9, 1993, 219 SCRA 724.) and the failure to do so renders the questioned
decision final and executory that deprives the appellate court of jurisdiction to alter the final
judgment much less to entertain the appeal (De Castro, Jr. v. Court of Appeals, No. L-36021,
February 29, 1988, 158 SCRA 288.) or motion for new trial. (Velasco v. Ortiz, G.R. No. 51973,
April 16, 1990, 184 SCRA 303) The decision of the Court of Appeals after expiration of the
period to appeal is null and void.(Antonio v. Court of Appeals, No. L-77656, August 31, 1987,
153 SCRA 592.)
g. Perfection of appeal
Rule 41, Sec. 9
A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the
notice of appeal in due time.
A party’s appeal by record on appeal is deemed perfected as to him with respect to the
subject matter thereof upon the approval of the record on appeal filed in due time.
In appeals by notice of appeal, the court loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the expiration of the time to appeal of the other
parties.
In appeals by record on appeal, the court loses jurisdiction only over the subject matter
thereof upon the approval of the records on appeal filed in due time and the expiration of the
time to appeal of the other parties.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
103
1. issue orders for the protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal;
2. approve compromises;
3. permit appeals of indigent parties;
4. order execution pending appeal in accordance with Section 2, Rule 39; and
5. allow withdrawal of appeal. (Rule 41, Sec. 9) (IAPOA)
It is a special remedy in which equity and justice justify the grant to give petitioner a last
chance to defend his rights or protect his interest.
When available
1. Available only after
(a) decision or final order from
which relief is sought has become final and executory, and
(b) loss of the right to appeal.
Not available where (a) a party has another adequate remedy available him (motion for new
trial or appeal) and (b) he is not prevented from filing such motion or taking the appeal.
2. Relief will not be granted when a party’s loss of legal remedy is due to his own negligence or
mistaken mode of procedure.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
104
Otherwise, petition will be tantamount to reviving the right of appeal which has already been
lost because of inexcusable negligence or due to a mistake in the mode of procedure taken by
counsel.
Requisites:
a. fraud, accident, mistake or excusable negligence
- same meaning as those used as grounds for new trial under Rule 37.
- fraud must be extrinsic or collateral
b. presence of good and substantial cause of action or defense, as the case may be.
60-day period – ordinarily counted from date of service of judgment or final order. If there
is no indication of receipt of service by petitioner or his counsel, it is his duty to show that he
received it within the 60-day period.
6-month period – counted from the time judgment or final order is entered, meaning
entry or recording thereof by the clerk of court in the book of entries of judgment after the same
has become final or executory.
If clerk of court failed to enter judgment or final order in the book of entries, 6-month
period is counted from issuance of writ of execution, as the “other proceeding taken” against
petitioner.
Exceptions – exceptional circumstances when the period may be relaxed, for the SC, in
the interest of substantial justice, has the power to suspend its rules and to consider petition
filed beyond the period as seasonably filed.
c. Contents of petition
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
105
Rule 38, Sec. 3. Time for filing petition; contents and verification.
A petition provided for in either of the preceding sections of this Rule must be verified,
filed within sixty (60) days after the petitioner learns of the judgment, final order, or other
proceeding to be set aside, and not more than six (6) months after such judgment or final
order was entered, or such proceeding was taken; and must be accompanied with affidavits
showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts
constituting the petitioner's good and substantial cause of action or defense, as the case may
be.
Governs annulment of judgments or final orders and resolutions in civil actions of RTCs for
which ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies
are no longer available thru no fault of petitioner.
Cannot be availed of –
(1) where party had availed of remedy of new trial, appeal, petition for relief or other
appropriate remedy and lost therefrom; or
(2) where he failed to avail of any such remedy thru his own fault or negligence.
b. In an ejectment case, the judge demanded and received money from plaintiff in
order that the latter may secure the favorable outcome of the case. As a result of the
acts of both plaintiff and the judge, defendant was prevented from receiving a fair and
just trial. Judgment annulled (Joven vs. Calilung, 477 SCRA 470).
c. Petition must be filed within four (4) years from discovery – an action based on
fraud prescribes in 4 years.
(2) Lack of jurisdiction - judgment rendered without jurisdiction is null and void.
a. Nullity may be shown not only by what appears on the face of the decision but also
by the documentary and testimonial evidence found in the record.
b. Petition filed before it is barred by laches or estoppel. While a void judgment due to
lack of jurisdiction is imprescriptible, the declaration of its nullity may be barred by laches or
estoppel.
Laches – neglect or omission to assert a right with a reasonable time.
> CA has no jurisdiction to entertain a petition to annul a final decision of the SEC under
Rule 47. Applies only to judgments or final orders of RTC in civil cases, per Sec. 1. MTC
judgments and final orders can be annulled by RTC, per Sec. 10. CA can reverse or modify
SEC decision under Rule 43 (Galang vs. CA, 472 SCRA 259 [2005])
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
106
The fact that the judgment or final order has been executed does not preclude the filing
of the action for annulment of judgment.
1. On motion
2. Upon judgment or order that disposes of the action or proceeding and
3. Upon expiration of the period to appeal therefrom and no appeal has been duly perfected;
or
4. When appeal has been duly perfected and resolved.
Once the judgment has become final and executory, the prevailing party may, by motion,
move for the issuance of a writ execution of the judgment in the court of origin.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
107
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. (Rule 39, Sec. 1)
What is the remedy against the court’s refusal to issue writ of execution?
Where the judgment or final order has become final and executory, notwithstanding which the
trial court refuses to issue a writ of execution by denying the motion for execution without
justifiable reason, the aggrieved party’s remedy is to file a petition for MANDAMUS (Valenzona
vs. CA, 226 SCRA 306 [1993]).
b. Discretionary execution
How may discretionary execution or execution pending appeal be availed of?
Requisites
This must be done while trial court has jurisdiction over the case and is in
possession of either the original record or record on appeal. The court may, in its
discretion, order execution even before the expiration of the period for appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be
filed with the appellate court. (Rule 39, Sec. 2(a)).
Several separate or partial judgments MAY be executed under the SAME terms and
conditions as executon of judgment or final order pending appeal. (Rule 39, Sec. 2(b))
Examples of good reasons:. (1) where there is danger of the judgment becoming
ineffectual, such as where the losing party is disposing ot its assets, or articles subject of the
case would deteriorate; (2) where the judgment debtor is insolvent or in imminent danger of
being insolvent’
What are the reasons that do not justify execution pending appeal?
a. appeal is frivolous and dilatory – it is not for the trial court to decide that question (Ong
vs. CA, 203 SCRA 38 [1991])
b. posting of a bond to answer for damages is not alone a sufficient reason, otherwise
execution pending appeal could be obtained through the mere filing of such bond (BF
Corp. vs. EDSA Shangri-La Hotel and Resort, Inc., 294 SCRA 109 [1998]).
c. the fact that the prevailing party is In financial distress (Intramuros Tennis Club, Inc. vs.
Court of Appeals, 341 SCRA 90)
What is the remedy where the judgment subject to discretionary execution 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 (Rule 39, Sec. 5).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
108
Mandatory execution
What judgments are immediately executory?
a. Judgments in actions for injunction, receivership, accounting, support. (IRAS)
Such judgments shall not be stayed by an appeal therefrom unless otherwise stayed by the trial
court. Also, on appeal, the appellate court may make an order suspending, modifying, restoring
or granting the injunction, receivership, accounting or award of support. (Rule 39, Sec. 4)
b. In forcible entry and unlawful detainer, if judgment is rendered against the defendant,
execution shall issue immediately upon motion unless defendant complies with the requisites for
staying execution (Rule 70, Sec. 19).
c. In forcible entry and unlawful detainer, the judgment of the RTC in aid of its appellate
jurisdiction against the defendant shall be immediately executory, without prejudice to further
appeal to the CA or SC (Rule 70, Sec. 21).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
109
Note: The judgment obligor shall have discretion to choose which property to levy; if not exercised,
the officer shall levy first on personal property, then on real property. The sheriff shall only sell
property sufficient to satisfy the judgment and other lawful fees.
In executing a judgment for money, what steps shall the sheriff follow?
1. Immediate payment on demand. 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;
2.. Satisfaction by levy. 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 obligor 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;
3. Garnishment of debts and credits.. 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 con troll of third parties. This is
called garnishment.
What is levy?
Levy is the act whereby a sheriff sets apart or appropriates for the purpose of satisfying the
command of the writ, a part or whole of the judgment debtor’s property.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
110
Rulings on Levy
1. A valid levy is essential to the validity of an execution sale, and levy is invalid if the
notice of levy of real property is not filed with the office of the register of deeds, the purpose
of which is to notify third parties who may be affected in their dealings with respect to such
property. (Valenzuela v. De Aguilar, No. L-18083-84, May 31, 1963, 8 SCRA 212) Where a
parcel of land levied upon execution is occupied by a party other than a judgment debtor, the
procedure is for the court to order a hearing to determine the nature of said adverse
possession. (Guevara v. Ramos, No. L-24358, March 31, 1971, 38 SCRA 194.)
2. To effect a levy upon real property, the sheriff is required to do two specific things:
(a) file with the register of deeds, a copy of the order and description of the attached property
and notice of attachment; and (b) leave with the occupant of the property a copy of the same
order, description and notice. (Delta Motors Corporation v. Court of Appeals, No. L-78012,
November 29, 1988, 168 SCRA 206.)
3. Notice to the owner who is not the occupant does not constitute compliance with the
statute. (Philippine Surety and Insurance Co., Inc. v. Zabal, No. L-21556, October 31, 1967,
21 SCRA 682.
Rulings on Garnishment
1 The garnishment of property to satisfy a writ of execution operates as an attachment
and fastens upon the property a lien by which the property is brought under the jurisdiction of
the court issuing the writ. It is brought into custodia legis, under the sole control of such
court. (De Leon v. Salvador, No. L-30871, December 28, 1970, 35 SCRA 567.) It is also
known as attachment execution.
2 Money judgments are enforceable only against property unquestionably belonging to
the judgment debtor. One man’s goods shall not be sold for another man’s debts, as the
saying goes. (Ong v. Tating, No. L-61042, April 15, 1987, 149 SCRA 265.)
3 The prohibition against examination or an inquiry into a bank deposit under Rep. Act No.
1405 does not preclude its being garnished to insure satisfaction of judgment. (China
Banking Corporation v. Ortega, No. L-34964, January 31, 1973, 49 SCRA 355.)
4. Government-owned-and-controlled corporations have a personality of their own,
separate and distinct from the government; their funds, therefore, although considered to be
public in character, are not exempt from garnishment. (Philippine National Bank v. Pabalan,
No. L-33112, June 15, 1978, 83 SCRA 595.)
5.. All government funds deposited in an official depositary of the Philippine Government by
any of its agencies or instrumentalities, whether by general or special deposit, remain
government funds. Hence, they may not be subject to garnishment or levy, in the absence of
corresponding appropriation as required by law (City of Naga vs. Asuncion, G.R. No.
174042, July 9, 2008, citing City of Caloocan v. Allarde, G.R. No. 107271, September 10,
2003, 410 SCRA 432, 439).
1. Conveyance, delivery of deeds, or other specific acts vesting title. If a party fails to
comply with the time specified, the court may direct the act to be done at the cost of the
disobedient party.
2. Sale of personal or real property. The officer shall sell such property, describing it, and
apply the proceeds in conformity with the judgment.
3. Delivery or restitution of real properties. The officer shall demand the losing party to
peaceably vacate the property within three working days, and restore possession to the
judgment oblige; otherwise the officer shall oust such disobedient party.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
111
5. Delivery of personal property. The officer shall take possession of the same and
forthwith deliver it to the party entitled to satisfy any judgment for money as therein provided
Except as otherwise expressly provided by law, the following property, and no other, shall be
exempt from execution;
(1) The judgment obligor's family home as provided by law, or the homestead in which
he resides, and land necessarily used in connection therewith;
(2) Ordinary tools and implements personally used by him in hs trade, employment, or
livelihood;
(3) 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;
(4) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(5) 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;
(6) Provisions for individual or family use sufficient for four months;
(7) 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;
(8) 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;
(9) So much of the salaries, wages, or earnings of the judgment obligor of his
personal services within the four months preceding the levy as are necessary for
the support of his family;
(10) Lettered gravestones;
(11) Monies benefits, privileges, or annuities accruing or in any manner growing out of
any life insurance;
(12) The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the Government;
(13) Properties specially exempt by law.
But no article or species of property mentioned in his section shall be exempt from executio
issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage
thereon.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
112
What is the 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 upon the officer making
levy?
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 [Indemnity bond]. In case of
disagreement as to such value, the same shall be determined by the court issuing the writ of
execution. No claim for damages for the taking or keeping of the property may be enforced
against the bond unless the action therefor is filed within one hundred twenty (120) days from
the date of the filing of the bond.
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.
The officer shall not be liable for damages for the taking or keeping of the property, to any
third-party claimant if such bond is filed (Rule 39, Sec. 16).
The third-party claimant is not obligated to file an action for damages against the sheriff in case an
indemnity bond was filed by the judgment creditor. The third-party claimant may file a separate and
independent action to establish ownership to the property levied upon by the sheriff. In that action,
he may secure an injunction to restrain the sale of the attached property. (Arabay, Inc. vs. Salvador,
G.R. No. L-31077 March 17, 1978).
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 vs. CA,
G.R. No. 161647, June 22, 2006)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
113
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, because intervention is no longer
allowed as judgment has already been rendered. 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 vs. Yllas
Lending Corporation., G.R. No. 158997, October 6, 2008)
6. Rules on Redemption
What is the right of redemption?
The right of a judgment debtor or redemptioner to buy back from the purchaser of the
property sold at public auction by virtue of a writ of execution at anytime within the reglementary
period.
What is the time and manner of successive redemptions? (Rule 39, Sec. 28)
When is the 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 one (1) year from the date of the registration of the certificate of sale (Rule 39, Sec.
33).
Purchaser or last redemptioner is entitled to:
a. execution of final deed of sale by the sheriff – to enable purchaser or last redemptioner to
consolidate his title to the property and to issuance by the register of deeds of new title in his
name.
b. physical possession of the property by means of a writ of possession against the judgment
obligor or his successor or interest or against any person who occupied the land after filing of
the case in which judgment was rendered and writ of execution was issued.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
114
Limitation
No judgment obligor shall be required to appear before a court or commissioner outside the
province or city in which such obligor resides or is found. (Rule 39, Sec. 36)
Satisfaction of judgment
Rule 39, Sec. 44. Entry of satisfaction of judgment by clerk of court. — Satisfaction of a
judgment shall be entered by the clerk of court in the court docket, and in the execution book,
upon the RETURN of a writ of execution showing the full satisfaction of the judgment or upon
the FILING of an admission to the satisfaction of the judgment executed and acknowledged in
the same manner as a conveyance of real property by the judgment obligee or by his counsel
unless a revocation of his authority is filed, or upon the endorsement of such admission by the
judgment obligee or his counsel on the face of the record of the judgment.
Rule 39, Sec. 45. Entry of satisfaction with or without admission. — Whenever a judgment
is satisfied in fact, or otherwise than upon an execution, on demand of the judgment obligor, the
judgment obligee or his counsel must execute and acknowledge, or indorse, an admission of
the satisfaction as provided in the last preceding section, and after notice and upon motion the
court may order either the judgment obligee or his counsel to do so, or may order the entry of
satisfaction to be made without such admission.
BAR BY PRIOR JUDGMENT – In other cases, the judgment or final order is, with respect to the
matter directly adjudged or as to any other matter that could have been raised in relation
thereto, conclusive between the parties and their successors in interest by title subsequent to
the commencement of the action or special proceeding, litigating for the same thing and under
the same title and in the same capacity;
The judgment or decree of a court of competent jurisdiction concludes the litigation between the
parties and their successors or privies and bars a new action or suit involving the same cause of
action
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
115
CONCLUSIVENESS OF JUDGMENT – In any other litigation between the same parties or their
successors in interest, that only is deemed to have been adjudged in a former judgment or
final order which appears upon its face to have been so adjudged, or which was actually and
necessarily included therein or necessary thereto.
Any right, fact or matter in issue which has been directly adjudicated upon or is necessarily
involved in the determination of the action by a competent court is conclusively settled by the
judgment or final order and CANNOT be litigated again by the parties and their privies.
Enforcement
By filing an action based on said judgment; the foreign judgment is presumed to be valid and
binding.
Effect:
1. Against a specific thing - conclusive upon title to the thing.
2. Against a person - presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title.
In BOTH instances, the judgment may be repelled by evidence of want of jurisdiction, notice,
collusion, fraud, or clear mistake of law or fact.
Foreign arbitral awards may be enforced under RA 9285 or the Alternative Dispute Resolution
Act of2004. The award must first be confirmed by the RTC and when so confirmed shall be
enforced in the same manner as final and executory judgments of Philippine Courts
R. Provisional Remedies
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
116
COMMON REQUIREMENTS
a. Affidavits are required to support the issuance of these remedies, except injunction and
receivership.
b. A bond is also required to answer for damages by reason of the improvident issuance of the
writ. Exceptions: temporary restraining order, support pendente lite, inspection of accounts and
freeze order (Human Security Act), inspection and production orders (rule on the writ of
amparo), seizure and sequestration of accounts and assets (Human Security Act), restriction of
travel (Human Security Act) and hold departure order (Circular 39-97 and AM 02-11-12).
Recovery of damages from the bond is governed by Rule 57, Section 20.
They are provisional because they constitute temporary measures availed of during the
pendency of the action. They are ancillary because they are mere incidents in and are
dependent upon the result of the main action. (Regalado 2008 ed.)
2. Preliminary Injunction (Rule 58) - at ANY STAGE of the action prior to the judgment or
final order
a Action for injunction, whether or not coupled with other prayers
b Forcible entry and unlawful detainer
3. Receivership (Rule 59) – at ANY STAGE of the proceedings and even up to the stage
after the judgment has become final and executory as a means of enforcing the
judgment
a. Receivership action
b. Real action involving title to or possession of realty
c. Foreclosure of mortgage
d. Dissolution of corporation
4. Replevin (Rule 60) - at the COMMENCEMENT of the action OR at ANY TIME before
answer
a. Recovery of possession of personal property
b. Recovery of personal property subject of chattel mortgage as a preliminary step to
extrajudicial foreclosure
5. Support Pendente Lite (Rule 61) – at the COMMENCEMENT of the proper action or
proceeding, or at ANY TIME prior to the judgment or final order
a. Support, whether as the main case or as one of several causes of action.
b. Criminal actions where the civil liability includes support of the offspring as a
consequence of the crime ( rape, seduction).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
117
The court which grants or issues a provisional remedy is the court which has jurisdiction
over the main action. Even a municipal trial court may grant a provisonal remedy in action
pending with it and within its jurisdiction. Exs. writ of preliminary mandatory action, ancillary to
the main action of ejectment (Rule 70, Sec. 15). But where the main action is for support,
provisional remedy of support pendente lite may not be granted by a municipal trial court
because the main action is within the jurisdiction of the family court.
3. Preliminary Attachment
Preliminary attachment defined -
a. a provisional remedy
b. issued upon order of the court where the action is pending,
c. to be levied upon the property of the defendant therein,
d. the same to be held thereafter by the sheriff
e. as SECURITY for the satisfaction of a judgment in said action
f. in favor of the attaching creditor against the defendant.
(Virata vs. Aquino, September 10, 1973)
When the main action is appealed the attachment is also considered appealed, It cannot
be the subject of an independent action (Olib vs. Pastoral, 188 SCRA 692 [1990]).
An order of attachment may be issued either ex parte or upon notice and hearing by the
court in which the action is pending, or by the Court of Appeals or Supreme Court (Rule 57,
Sec. 2).
It may be issued ex parte because to require notice to the adverse party would defeat the
purpose of attachment and enable the adverse party to abscond or dispose of the property
before the issuance of the writ (Mindanao Savings and Loan Association, Inc. vs. CA, 172
SCRA 480).
Garnishment is an attachment by which the plaintiff seeks to subject to his claim property of
the defendant in the hands of a third person or money owed by such third person or garnishee
to the defendant. The rules on attachment also apply to garnishment proceedings.
Attachment Garnishment
Property is usually in the possession Property is in the possession of a
of the party litigant. third party
Subject is real or personal property Subject is personal property,
usually debts or security
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
118
Garnishment of bank deposits does not violate the bank secrecy law (RA 1405) - because
it does not involve examination or inquiry into the deposit, but is merely to inform the court
whether defendant has a deposit in the bank which may be garnished.
When garnishment order lifted. – A garnishment order shall be lifted if it is established that:
(a) the party whose accounts have been garnished has posted a counterbond or has made
the requisite cash deposit; (b) the order was improperly or irregularly issued as where there is
no ground for garnishment or the affidavit and/or bond filed therefor are defective or
insufficient; (c) the property attached is exempt from execution, hence exempt from preliminary
attachment; or (d) the judgment is rendered against the attaching or garnishing creditor.
Discharge of attachment
1. Posting of counterbond (Sec. 12). Even before actual levy, seizure may be prevented also
under a counterbond (Sec. 5).
2. Showing of improper or irregular issuance (Sec. 13).
3. Judgment rendered against attaching party – dismissal of principal action (Sec. 19).
b. Requisites
Attachment bond (Rule 57, Sec.3)
An attachment bond is a pre-requisite to the issuance of a writ of attachment. Until the
attachment is discharged or lifted in accordance with law, the bond continues to be valid even
when the PREMIUM IS NOT PAID.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
119
Several writs may be issued at the same time to the sheriffs of the courts of different
judicial regions.
Ex parte grant of the writ is allowed because it is possible that during the course of the
hearing, the part against whom the writ is sought may dispose of his property or abscond before
the writ is issued. (Filinvest Credit Corporation vs. Relova, G.R. No. L-50378, September 30,
1982)
The rule on prior or contemporaneous service of summons shall apply, subject to the
exceptions enumerated earlier. (Rule 57, Section 5)
Rule 57, Sec. 7. Attachment of real and personal property; recording thereof.
The sheriff executing the writ shall attach real and personal property in the following manner:
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
120
a) By filing with the registry of deeds a copy of the order, together with a description of the
property attached and 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
b) 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.
4. Debts and credits, including bank deposits, financial interest, royalties, commissions,
and other personal property not capable of manual delivery
a) By leaving with the person owing such debts, or having in his possession or under his
control, such credits or other personal property, or with his agent, a copy of the writ, and
notice that the debts owing by him to the party against whom the attachment is issued,
and the credits and other personal property in his possession, or under his control,
belonging to said party, are attached in pursuance of such writ
5. The interest of the party against whom attachment is issued in property belonging to
the estate of the decedent, whether as heir, legatee, or devisee
a) By serving the executor or administrator or other personal representative of the
decedent with a copy of the writ and notice, that said interest is attached
b) A copy of said writ of attachment and of said notice shall also be filed in the office of the
clerk of the court in which said estate is being settled and served upon the heir, legatee,
or devisee concerned.
Such liability shall accrue from the time of service upon him of the copy of the writ of
attachment and until the attachment is discharged, or any judgment recovered by him is
satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk,
sheriff, or other proper officer of the court issuing the attachment. (Rule 57, Section 8)
It is not necessary to serve summons upon the garnishee to acquire jurisdiction upon him. All
that is required is service upon him of the writ of garnishment.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
121
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 the third-party claimant in a
sum not less than the value of the property levied upon. (indemnity bond)
In case of disagreement as to such value, the same shall be decided by the court issuing
the writ of attachment.
No claim for damages for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred twenty (120) days from
the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property, to
any such third-party claimant, if such bond is filed.
The proceedings set forth above shall not prevent such claimant or any third person from
vindicating his claim to the property in the same or separate action.
or prevent the attaching party from claiming damages against a third-party claimant who
filed a frivolous or plainly spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the
sheriff is sued for damages as a result of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be appropriated for the
purpose.
The third party CANNOT APPEAL NOR AVAIL OF CERTIORARI AS A REMEDY in the
event that his claim is denied since HE IS A NON-PARTY to the original action (Sierra
vs. Rodriguez and Northern Motors vs. Coquia),
Aside from Rule 57, Sec. 14, the other provisions of the Rules of Court dealing with
terceria or third party claims are Rule 39, Sec. 16 (execution) and Rule 60, Sec. 7
(replevin).
Attachment bond under Sec. 3 is different from the bond under Sec. 14 (proceedings
where property claimed by third person). Sec. 3 refers to the attachment bond to assure
the return of defendant’s property or the payment of damages to the defendant if the
plaintiff’s action to recover possession of the same property fails, in order to protect the
person’s right of possession of said property, or to prevent the defendant from destroying the
same during the pendency of the suit.
Under Sec. 14, the purpose of the bond is to indemnify the sheriff against any claim by the
intervenor to the property seized or for damages arising from such seizure, which the sheriff
was making and for which the sheriff was directly responsible to the third party (Fort
Bonifacio Development Corporationvs. Yllas Lending Corporation, G.R. No. 158997, October
6, 2008).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
122
equal to the value of that property as determined by the court. In either case, the cash
deposit or the counter-bond shall secure the payment of any judgment that the
attaching party may recover in the action (R57S12);
2. Attachment was improperly or irregularly issued or enforced, as where there is no
ground for attachment under Section 1 (R57S13);
3 . The bond filed is defective or insufficient (R57S13);
4. Attachment is excessive but the discharge shall be limited to the excess (R57S13);
5. Property attached is exempt from execution (R57S2 and R57S5);
6. Judgment is rendered against the attaching creditor (R57S19).
A discharge of the attachment must be made only after hearing. Ex parte discharge is a
disservice to the orderly administration of justice (Peroxide Philippines Corporation vs.
Court of Appeals, 199 SCRA 882].
1. By paying to the judgment obligee the proceeds of all sales of perishable or other property
sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the
judgment;
2. If any balance remain due, by selling so much of the property, real or personal, as may be
necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s hands, or in
those of the clerk of the court;
3. By collecting from all persons having in their possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the
amount of such credits and debts as determined by the court in the action, and stated in the
judgment, and paying the proceeds of such collection over to the judgment obligee.
The sheriff shall forthwith make a return in writing to the court of his proceedings under the
section and furnish the parties with copies thereof. (Rule 57, Sec. 15)
If after realizing upon all the property attached, any balance shall remain due, the sheriff must
proceed to collect such balance as upon ordinary execution.
Whenever the judgment shall have been paid, the sheriff, upon reasonable 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. (Rule 57, Sec.16)
When the judgment has become executory, the surety or sureties on the counter-bond shall
become charged on such counter-bond and bound to pay the judgment oblige upon demand
the amount due under the judgment, which may be recovered from such surety or sureties after
notice and summary hearing in the same action. (Rule 57, Sec. 17)
Where the party, against whom attachment had been issued, has deposited the money instead
of giving counter-bond, it shall be applied under direction of the court to the satisfaction of any
judgment rendered in favour of the attaching party. The balance shall be refunded to the
depositor or his assignee.
If the judgment is in favor of the party against whom attachment was issued, the whole sum
deposited must be refunded to him or his assignee. (Rule 57, Sec. 18)
If judgment be rendered against the attaching party, all the proceeds of the sales and money
collected or received by the sheriff, under the order of attachment, and all property attached
remaining in any such sheriff’s hands, shall be delivered to the party against whom attachment
was issued, and the order of attachment discharged. (Rule 57, Sec. 19)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
123
4. Preliminary Injunction
a. Definitions and Differences: Preliminary Injunction and Temporary
Restraining Order
Temporary Restraining Order – may be issued ex parte or without a hearing, and is
effective for a limited period.
Preliminary Injunction - may not be issued ex parte and is effective while the main case
is pending
PRELIMINARY INJUNCTION
There is no power, the exercise of which, is more delicate which requires greater caution,
deliberation, and sound discretion, or (which is) more dangerous in a doubtful case than the
issuing of an injunction. It is the strong arm of equity that never ought to be extended unless
in cases of great injury, where courts of law cannot afford an adequate or commensurate
remedy in damages. (University of the Philippines v. Catungal, Jr. G.R. No. 121863 May 5,
1997, 272 SCRA 221,236 )
b. Requisites
Essential Requisites for the Issuance of Preliminary Injunction
1. There must be a right in esse or the existence of a right to be protected.
2. The act against which the injunction is to be directed is a violation of such right.
(Philippine Sinter Corporation et.al. vs Cagayan Electric Power and Light Co. Inc. GR No.
127371, April 25, 2002. 381 SCRA 582)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
124
Capitol Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, Oct. 13,1989, 178
SCRA 493.)
b. An injunction will not issue to protect a right not in esse and which may never
arise or to restrain an act which does not give rise to a cause of action. ( Republic of
the Philippines v. Villarama G.R. No. 117733, September 5, 1997, 278 SCRA 736;
Buayan v. Quintillan, supra, note 315.) There must exist a clear and actual right to
be protected and that the acts against which the writ is to be directed are
violative of the established right. (G & S Transport Corporation vs CA 382 SCRA
262 GR No. 120287, May 28, 2002)
c. Kinds of Injunction
1. Preliminary prohibitory injunction – order granted at any stage of the action or
proceeding prior to judgment or final order requiring a party or court, agency or person to refrain
from a particular act or acts (Rule 58, Sec. 1)
2. Preliminary mandatory injunction – order granted at any stage of the action or
proceeding prior to the judgment or final order requiring the performance of a particular act or
acts.
3. Final or permanent injunction - one issued in the judgment in the case permanently
restraining the defendant or making the preliminary injunction permanent.
Under the Rules of Court, probability is enough basis for injunction to issue as a
provisional remedy, which is different from injunction as a main action where one needs
to establish absolute certainty as basis for a final and permanent injunction.(Hernandez
vs. NAPOCOR, G.R. No. 145328, March 23, 2006).
(a) 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;
(b) 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
(c) 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.
PRELIMINARY INJUNCTI0N
Purpose of preliminary injunction – to preserve the status quo ante litem motam (status
before the suit) until the trial court hears fully the merits of the case. Its primary purpose is not to
correct a wrong already consummated or to redress an injury already sustained, or to punish
wrongful acts already committed, but to preserve and protect the rights of the litigant during the
pendency of the case (Bustamante vs. CA, April 17, 2002).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
125
So that the court may thereby prevent a threatened or continuous irremediable injury to
some of the parties before their claims can be thoroughly investigated and advisedly
adjudicated. The application of the writ rests upon an alleged existence of an emergency or of a
special reason for such an order before the case can be regularly heard, and the essential
conditions for granting such temporary injunctive relief are that (a) the complaint alleges facts
which appear to be sufficient to constitute a cause of action for injunction and that (b) on the
entire showing on both sides, it appears, in view of all the circumstances, that the injunction is
reasonably necessary to protect the legal rights of the plaintiff pending the litigation.
(Estares vs. CA, 459 SCRA 604 [2005]).
Status quo sought to be preserved – the last actual, peaceable and uncontested situation
[LAPUS] which precedes a controversy. The status quo should be existing ante litem motam, or
at the time of the filing of the case. For this reason, a preliminary injunction should not establish
new relations between the parties, but merely maintain or re-establish the pre-existing
relationship between them (Bustamante vs. CA, supra).
Requisites for injunctive writ: (1) invasion of the right is material and substantial; (2) the
right of complainant is clear and unmistakable; (3) and there is an urgent and permanent
necessity of the writ to prevent serious damage.
Injunction not designed to protect contingent or future rights. Injunction will not issue
to protect a right not in esse and which may never arise, or to restrain an act which does not
give rise to a cause of action.
The complainant’s right or title must be CLEAR AND UNQUESTIONED, for equity, as a rule,
will not take cognizance of suits to establish title, and will not lend its preventive aid where the
complainant’s title or right is doubtful or disputed. The possibility of irreparable damage,
without proof of violation of an actual existing right, is no ground for an injunction, being mere
damnum absque injuria (Ulang vs. CA, 225 SCRA 637 [1993]).
MANDATORY INJUNCTION
Strict requisites for mandatory injunction. Since it commands the performance of an
act, a mandatory injunction does not preserve the status quo and is thus more cautiously
regarded than a mere prohibitive injunction (Gateway Electronics Corporation vs. Land Bank
of the Philippines, July 30, 2003, 407 SCRA 454,).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
126
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
127
1. If great or irreparable injury would result to the applicant before the matter can be heard on
notice, the court may issue a TRO effective for 20 days from service on party enjoined
2. If the matter is of extreme urgency and the applicant will suffer grave injustice and
irreparable injury, the court may issue a TRO effective only for 72 hours from issuance, renewable
after summary hearing for a period not exceeding 20 days including the original 72 hours
Issues on jurisdiction
1. Pursuant to the policy of judicial stability, the judgment or order of a court of competent
jurisdiction may not be interfered with by any court of concurrent jurisdiction (Javier vs.
Court of Appeals, February 16, 2004, 423 SCRA 11; See also Chings vs. Court of Appeals,
February 24, 2003, 398 SCRA 88).
2. Injunctions issued by the Regional Trial Courts are limited to acts committed or to be
committed within its territorial jurisdiction. The doctrine is, however, limited to prohibitory
and injunctive writs.
Section 21 of BP 129 reads: “Original jurisdiction in other cases – Regional Trial Courts
shall exercise original jurisdiction (1) in the issuance of writs of certiorari, prohibition,
mandamus, quo warranto, habeas corpus and injunction which may be enforced in any party
of their respective regions.”
1. An original action for injunction is outside the jurisdiction of the Court of Appeals.
2. The appellate court’s jurisdiction to grant a writ of preliminary injunction is limited to the
actions or proceedings before it or in a petition for certiorari, prohibition or mandamus under
Rule 65.
3. An order granting or denying a preliminary injunction is not appeal
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
128
Exceptions
a. Forcible entry in which the Court may issue preliminary mandatory injunction (Rule 70,
Sec. 15) and by Section 20 thereof involving leases in which the court may, on appeal,
grant similar mandatory injunctive relief. The exception applies only to ejectment cases
exclusively cognizable by the municipal trial court. (Ramos v. Court of appeals, G.R.
81354, July 26, 1988, 163 SCRA 583 )
b. Property covered by Torrens Title when there is a clear finding of ownership and
possession of the land or unless the subject property is covered by a Torrens Title
pointing to one of the parties as the undisputed owner. (GSIS v. Florendo, supra, note
329; Cagayan de Oro City Landless Residents Association, Inc. v. Court of Appeals, G.R.
No. 106043, March 4, 1996, 254 SCRA 229)
Injunctions not issued where act sought to be prevented had been committed /
consummated acts (fait accompli)
1. The remedy of injunction could no longer be availed of where the act to be prevented
had long been consummated. Where a span of seven years has intervened from the
time the award of the lot has already been accomplished to the time petitioners’
complaint for injunction was filed, injunction would just be an exercise in futility
(Zabat vs. CA, August 23, 2000, 338 SCRA 551).
2. A writ of preliminary injunction will not issue if the act sought to be enjoined is a fait
accompli or an accomplished or consummated act (Transfield Philippines, Inc., vs.
Luzon Hydro Corporation, November 22, 2004, 443 SCRA 307). By issuing a
temporary restraining order and writ of preliminary injunction enjoining the eviction of
the respondents, the Court of Appeals allowed the respondents to stay in the property
despite the mandatory provision of Section 19, Rule 70 of the Rules of Court. The
appellate court, in effect, granted the same injunctive relief which the respondents
failed to secure from the Regional Trial Court due to their procedural lapse (David vs.
Navarro, February 11, 2004, 422 SCRA 499).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
129
7. Injunctions to prevent the Anti Money Laundering Council from issuing and /or
implementing freeze orders, with the exception of writs issued by the Court of
Appeals and the Supreme Court (RA 9160 as amended by RA 9194)
8. Injunctions to restrain the Presidential Agrarian Reform Council from performing
its tasks (Section 55 RA 6657)
9. Injunctions against public administrative officers in the issuance of public grants
for the exploitation of natural resources (PD 605)
Effect when a higher court issues a writ of preliminary injunction against a lower court,
board or tribunal in a petition for certiorari under Rule 65 :
The trial court, the Court of Appeals, the Sandiganbayan or the Court of Tax Appeals that
issued a writ of preliminary injunction against a lower court, board, officer or quasi-judicial
agency shall decide the main case or the petition within six months from the issuance of the
writ.
Under this provision, higher courts that restrain a lower court from proceeding with a case
by issuing a writ of preliminary injunction must decide the main case or petition within six
months in order not to unduly delay the main case lodged in a lower court. (Section 5, Rule 58,
as amended by A.M. No. 07-7-12-SC which took effect on December 27, 2007)
g. Duration of TRO
Effectivity of TRO
RTC - 20 days
CA - 60 days
SC - until further orders
This law expressly repealed Presidential Decree No. 605 (prohibiting injunction
involving concessions, licenses and other permits issued by public administrative office or
bodies for the exploitation of natural resources) and Presidential Decree No. 1818
(prohibiting injunction in cases involving infrastructures and natural resources
development and public utilities. (National Power Corporation v. Vera, G.R. No. 83558, 27
Feb. 1989, 170 SCRA 721)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
130
5. Receivership
Receiver defined
Receiver is a representative of the court appointed for the purpose of PRESERVING AND
CONSERVING the property in litigation and prevent its possible destruction or dissipation, if it
were left in the possession of any of the parties. He is not the representative of any or the
parties but by all of them to the end that their interests may be equally protected with the least
possible inconvenience and expense.
Upon a verified application, one or more receivers of the property subject of the action or
proceeding may be appointed by the court where the action is pending, or by the Court of
Appeals or by the Supreme Court, or a member thereof, in the following cases:
(a) When it appears from the verified application, and such other proof as the court may
require, that the party applying for the appointment of a receiver has an interest in the
property or fund which is the subject of the action or proceeding, and that such property or
fund is in danger of being lost, removed, or materially injured unless a receiver be appointed
to administer and preserve it;
(b) When it appears in an action by the mortgagee for the foreclosure of a mortgage 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, or that the parties have so stipulated
in the contract of mortgage;
(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose
of it according to the judgment, or to aid execution when the execution has been returned
unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the
judgment, or otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.
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 said court.
Before issuing the order appointing a receiver the court shall require the applicant to file a
bond executed to the party against whom the application is presented, in an amount to be fixed
by the court, to the effect that the applicant will pay such party all damages he may sustain by
reason of the appointment of such receiver in case the applicant shall have procured such
appointment without sufficient cause; and the court may, in its discretion, at any time after the
appointment, require an additional bond as further security for such damages. (3a)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
131
as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to
compound for and compromise the same; to make transfers; to pay outstanding debts; to divide
the money and other property that shall remain among the persons legally entitled to receive the
same; and generally to do such acts respecting the property as the court may authorize.
However, funds in the hands of a receiver may be invested only by order of the court upon the
written consent of all the parties to the action.
No action may be filed by or against a receiver without leave of the court which appointed him.
f. Termination of receivership
Rule 59, Sec. 8. Termination of receivership; compensation of receiver.
Whenever the court, motu proprio or on motion of either party, shall determine that the necessity
for a receiver no longer exists, it shall, after due notice to all interested parties and hearing,
settle the accounts of the receiver, direct the delivery of the funds and other property in his
possession to the person adjudged to be entitled to receive them, and order the discharge of the
receiver from further duty as such. The court shall allow the receiver such reasonable
compensation as the circumstances of the case warrant, to be taxed as costs against the
defeated party, or apportioned, as justice requires.
Appointment of a Receiver
The general rule is that neither party to the litigation should be appointed as a receiver
without the consent of the other because a receiver is supposed to be an impartial and
disinterested person. (Alcantara v. Abbas, No. L-14890, September 30, 1963, 9 SCRA 54 )A
clerk of court should not be appointed as a receiver as he is already burdened with his official
duties. (Abrigo v. Kayanan, No. L-28601, March 18, 1983, 121 SCRA 20)
If a spouse, without just cause, abandons the other or fails to comply with his or his
obligations to the family, the aggrieved spouse may petition the court for receivership.
The court may appoint a receiver of the property of the judgment obligor; and it may also
forbid the transfer or other disposition of, or any interference with, the property of the
judgment obligor not exempt from execution.
3. After the perfection of an appeal, the trial court retains jurisdiction to appoint a
receiver of the property under litigation since this matter does not touch upon the subject of
the appeal. (Rules of Court, Rule 41, Sec. 9; Acuña v. Caluag, 101 Phil. 446 [1957])
5. Appointment of a receiver over the property in custodia legis may be allowed when it
is justified by special circumstances as when it is reasonably necessary to secure and
protect the rights of the real owner. (Dolar v. Sundiam, No. L-27631, April 30, 1971, 38
SCRA 616)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
132
6. In a petition for corporate rehabilitation, when the court finds the same to be
sufficient in form and substance, the Court shall, within five days from filing of the petition
appoint a Rehabilitation and fix his bond. (Rules of Procedure on Corporate Rehabilitation
2008)
6. Replevin
What is replevin?
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 filing of a bond.
1. A party praying for the recovery of possession of a personal property files with the
court at the commencement of the action or before answer an application for a writ of
replevin. (Rule 60, Sec. 1)
a) that the applicant is the owner of the property claimed, particularly describing
it, or is entitled to the possession thereof;
b) that the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of knowledge, information,
and belief;
c) that the property has not been distrained or taken for a tax assessment or a
fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized , that it is
exempt from such seizure or custody; and
d) the actual market value of the property
Notes:
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
133
1) The applicant for a writ of replevin need not be the owner for it is enough that he
has a right to posses it. (Yang v. Valdez, G.R. No. 73317, August 31, 1989, 177
SCRA 141)
3) The defendant is entitled to the return of the property taken under a writ of replevin
if the following requisites are met:
Note: The RTC had no jurisdiction to take cognizance of the petition for replevin by
respondents, issue the writ of replevin and order its enforcement. The Collector of
Customs had already seized the vehicles and set the sale thereof at public auction. The
RTC should have dismissed the petition for replevin at the outset. By granting the plea of
respondents (plaintiffs below) for the seizure of the vehicles and the transfer of custody to the
court, the RTC acted without jurisdiction over the action and the vehicles subject matter
thereof. The forfeiture of seized goods in the Bureau of Customs is a proceeding against
the goods and not against the owner. It is in the nature of a proceeding in rem, i.e., directed
against the res or imported articles and entails a determination of the legality of their
importation. In this proceeding, it is, in legal contemplation, the property itself which commits
the violation and is treated as the offender, without reference whatsoever to the character or
conduct of the owner (Asian Terminals, Inc. vs. Bautista-Ricafort, G.R. No. 166901, October
27, 2006).
(a) That the applicant is the owner of the property claimed, particularly describing it, or is
entitled to the possession thereof;
(b) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and belief;
(c) That the property has not been distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise
placed under custodia legis, or if so seized, that it is exempt from such seizure or custody;
and
The applicant must also give a BOND, executed to the adverse party in DOUBLE THE
VALUE of the property as stated in the affidavit aforementioned, for the return of the property
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
134
to the adverse party if such return be adjudged, and for the payment to the adverse party of
such sum as he may recover from the applicant in the action.
Order of Replevin
1) Upon the filing of such affidavit and approval of the bond, the court shall issue an
ORDER and the corresponding WRIT OF REPLEVIN describing the personal property
alleged to be wrongfully detained and requiring the sheriff forthwith to take such property
into his custody. (R60S3)
2) A writ of replevin may be served anywhere in the Philippines
Redelivery bond
If the adverse party objects to the sufficiency of the applicant’s bond, or of the surety or
sureties thereon, he cannot immediately require the return of the property. But if he does not so
object, he may, at any time before the delivery of the property to the applicant, require the return
thereof, by filing with the court where the action is pending a redelivery bond—that is, a bond
executed to the applicant:
1. In DOUBLE THE VALUE of the property as stated in the applicant’s affidavit for the delivery
of the property to the applicant, if such delivery be adjudged; and
2. For the payment of such sum to him as may be recovered against the adverse party; and
3. By serving a copy of such bond on the applicant.(R60S5)
The sheriff is bound to keep the property when the applicant, on demand of the sheriff,
files a BOND approved by the court to INDEMNIFY the third-party claimant in a sum not
less than the value of the property under replevin (indemnity bond)
In case of disagreement as to such value, the court shall determine the same
No claim for damages for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred twenty (120) days from
the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property, to
any such third-party claimant, if such bond is filed.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
135
The proceedings set forth above shall not prevent such claimant or any third person from
vindicating his claim to the property, in the same or a separate action.
or prevent the applicant from claiming damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a separate action.
When the writ of replevin is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the
sheriff is sued for damages as a result of the attachment, he shall be represented by the
Solicitor General, and if held liable therefor, the actual damages adjudged by the court
shall be paid by the National Treasurer out of the funds to be appropriated for the
purpose.
How commenced:
o COMPLAINT (IEFPF)
a. interpleader
b. expropriation
c. foreclosure of real estate mortgage
d. partition
e. forcible entry and unlawful detainer
o PETITION (DRCPMQC)
a. declaratory relief
b. review of adjudications of Comelec and COA
c. certiorari
d. prohibition
e. mandamus
f. quo warranto
g .contempt
Writs of injunction, certiorari, mandamus, prohibition, quo warranto and habeas corpus
issued by the RTCs are enforceable within their respetive judicial regions (BP 129).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
136
4. Interpleader
Definition
A remedy whereby a person who has property in his possession or has an obligation to
render wholly or partially,
without claiming any right in both,
comes to court and asks that the defendants who have made conflicting claims upon the
same property or who consider themselves entitled to demand compliance with the
obligation
be required to litigate among themselves in order to determine who is entitled to the
property or payment of the obligation (Beltran vs. PHHC, 1969).
Purpose
To compel conflicting claimants to interplead and litigate their several claims among
themselves (R62S1)
To protect a person not against double liability but against a double vexation in respect
of one’s liability (Beltran vs. PHHC)
b. When to file
1. Interpleader was found to be a proper action in an action by a lessee who does not know
to whom to pay rentals due to conflicting claims on the property (Pagkalinawan v.
Rodas, 80 Phil. 281 [1948]) and in an action by a bank where the purchaser of a
cashier’s check claims it was lost and another has presented it for payment. (Mesina v.
Intermediate Appéllate Court, No. L-70145, November 13, 1986, 145 SCRA 497).
2. It was however found to be improper in an action where defendants had conflicting
claims against the plaintiff; (Beltran v. People’s Homesite and Housing Corporation, No.
L-25138, August 28, 1969, 29 SCRA 145) in an action where one of the defendants had
earlier sued the plaintiff and secured a judgment against him which has already become
final, the action being barred by laches or unreasonable delay; (Wack Wack Golf and
Country Club, Inc. v. Won, No. L-23851, March 26; 1976, 70 SCRA 165.) and in an
action where there are non conflicting claims among the defendants, their respective
claims being separate and distinct from each other.Hence, the complaint for interpleader
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
137
may be dismissed for lack of cause of action. (Vda. De Camilo vs. Aranio, L-15653,
September 29, 1961.)
3. An interpleader is commenced to protect a party, not against double liability, but against
double vexation on account of one liability
4. The parties in an interpleader action may file counterclaims, cross-claims, third party
complaints and responsive pleadings in the same action, as provided in the second
paragraph of Section 5 of Rule 62 of the 1997 Rules of Civil Procedure in the interest of
a complete adjudication of the controversy and its incidents. (Arreza v. Diaz, Jr. , GR No.
133113, August 30, 2001)
Procedural Features
1. Upon the filing of the complaint, the court shall issue an order requiring the conflicting
claimants to interplead with one another. (Rule 62, Sec. 2 )
2. The court may direct in the same order mentioned in the preceding paragraph that
the subject matter of the suit be paid or delivered to the court.
3. The summons shall be accompanied by copies of the complaint and order.
4. The defendants may file a motion to dismiss on the ground of the impropriety of the
interpleader action or on other appropriate grounds specified in Rule 16.
5. The defendants shall serve a copy of the answer not only on the plaintiff but also on
their co-defendants who may file their reply thereto.
6. The effect of a failure to plead within the prescribed period is that, upon motion, the
defendant will be declared in default and thereafter, the Court renders judgment
barring him from any claim in respect of the subject matter.
An action for the reformation of an instrument, to quiet title to real property or remove
clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be
brought under this Rule.
Procedural Features
1. The petition must be filed before there is a breach of contract or violation of the statute of
ordinance. (Rule 63, Sec. 1)
2. A third-party complaint is not allowed. (Commissioner of Customs v. Cloribel, No. L-
21036, June 30, 1977, 77 SCRA 459))
3. Except in actions for quieting of title, the court’s action in an action for declaratory relief
is discretionary. Thus, the court, motu proprio or upon motion, may refuse to exercise
the power to declare rights and to construe instruments in any case where a decision
would not terminate the uncertainty or controversy which gave rise to the action or in any
case where the declaration or construction is not necessary under the circumstances.
(Rule 63, Sec. 5)
4. When a statute, executive order or any government regulation or ordinance is alleged to
be unconstitutional, the Solicitor-General should be notified by the party assailing the
same. (Rule 63, Sec. 3)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
138
A petition for declaratory relief is ripe for judicial determination if there is a threatened
litigation in the immediate future, which litigation is imminent and inevitable unless prevented by
the declaratory relief sought. (Tolentino v. Board of Accountancy GR No. L-362, September 28,
1951) .
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
139
11. when judgment would have to be made, only after a judicial investigation of the
disputed issues rather than a construction of definite stated rights, status and
other relations, commonly expressed in written instruments. In this case, what
was sought was the declaration that the private respondent was a corporation
and that it was separate and distinct from C.F. Sharp Kabushiki Kaisha and that,
therefore, it was not liable for the latter’s indebtedness (Kawasaki Port Service
Corp. v. Amores, GR No. L-58340 ,July 16, 1991).
- Even when the action is for a declaratory judgment, the court may grant such
affirmative relief as may be warranted by the evidence when the allegations in the
complaint are sufficient to make out a case for specific performance or recovery of
property with claims for damages, and the defendants did not raise an issue in the trial
court to challenge the remedy or the form of the action availed of. (Adlawan v. IAC, G.R.
No. 73022 February 9, 1989 )
- A third-party complaint is not proper when the main case is for a declaratory relief.
This is because in a third-party complaint, the defendant or third-party plaintiff is
supposed to seek contribution, indemnity, subrogation or any other relief from the third-
party defendant in respect of the claim of the plaintiff against him. (Customs v. Cloribel,
G.R. No. L-21036 June 30, 1977)
- The non-joinder of persons who may claim interest which may be affected by a
declaratory judgment is not a jurisdictional defect, as Section 2 of Rule 63 provides that
said declaration shall not prejudice their interests, unless otherwise provided in the
Rules of Court. (Baguio Citizens Action, Inc. v The City Council, etc. of Baguio City, L-
27247, April 20, 1983)
B. Consolidation of ownership
DECLARATORY RELIEF
What is declaratory relief?
A declaratory relief is an action which any person interested under a deed, will,
contract, or other written instrument, whose rights are afffected by a statute. executive order
or regulation, or ordinance may, before breach or violation thereof, bring to determine any
question of construction or validity arising from the instrument or statute and for a
DECLARATION of his RIGHTS or DUTIES thereunder (Mirandon vs. Wellington Ty & Bros.,
Inc., 81 SCRA 506 [1978]).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
140
A petition for declaratory relief should be brought “in the appropriate regional trial court.”
The purpose of the petition is to ask the court to determine any question of construction or
validity arising from the subject matter thereof, and for the declaration of rights and duties
thereunder. Hence, the subject matter of such petition raises issues which are not capable of
pecuniary estimation and must be filed in the RTC (Sec. 19 [1], BP 129; Sec. 1, Rule 63). It
would be error to file the petition the petition with the Supreme Court which has no original
jurisdiction to entertain a petition for declaratory relief (Ortega vs. Quezon City Government,
G.R. No. 161400, September 2, 2005).
However, where the action is for quieting of title which is a similar remedy under the second
paragraph of Sec. 1 of Rule 63, the jurisdiction will depend upon the assessed value of the
property.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
141
Motion for reconsideration of COMELEC Division ruling should first be filed with
COMELEC En Banc, whose decision may be brought on certiorari to SC.
Exc. when division committed grave abuse of discretion, in which case the aggrieved
party may directly file a petition for certiorari with SC .
Definition:
The latin word “certiorari” literally means “to be informed of, to be made certain in
regard to…” (Black’s law dictionary) Certiorari will issue only to correct errors of
jurisdiction and not to correct errors of procedure or mistakes in the court’s findings
and conclusions. (Lee vs. People 393 SCRA 397; Microsoft Corporation vs. Best
Deal Computer Center 389 SCRA 615)
Terminology
Hence, petitions for certiorari must be filed strictly within 60 days from notice of judgment
or from the order denying a motion for reconsideration.
If the Court intended to retain the authority of the proper courts to grant extensions under
Section 4 of Rule 65, the paragraph providing for such authority would have been preserved.
The removal of the said paragraph under the amendment by A.M. No. 07-7-12-SC of
Section 4, Rule 65 simply meant that there can no longer be any extension of the 60-day
period within which to file a petition for certiorari. (Laguna Metts Corporation vs. Court of
Appeals, G.R. No. 185220, July 27, 2009)
The general rule, as held in Laguna Metts Corporation, is that the filing of a petition for
certiorari is non-extendible. However, there are exceptions, as stated in Domdom vs.
Sandiganbayan, Labao vs. Flores and Mid-Islands Power Generation vs. Court of Appeals,
which can be summarized under two main grounds: to serve substantial justice or to protect
strong public interest (Republic vs. St. Vincent de Paul Colleges, Inc., G.R. No. 192908,
August.22, 2012)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
142
Re-filing of petition for certiorari should be done within the 60-day period. Where the
dismissal by the Court of Appeals of the petition for certiorari in CA-G.R. SP No. 69744 for non-
submission of a non-forum shopping certification was without prejudice and petitioner could
have re-filed such petition, such re-filing should still be done within the prescribed period under
Section 4, Rule 65 of the 1997 Rules of Civil Procedure, or not later than sixty days from notice
of the assailed Order of the RTC. (Estrera vs. CA, G.R. No. 154235-36, August 16, 2006)
Judicial courtesy, therefore, can no longer be used as an excuse by courts or tribunals not to
proceed with the principal case. This is the effect of the amendment of Section 7.
The public respondent shall proceed with the principal case within
ten (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.
Three (3) essential dates that must be stated in a petition for certiorari under
Rule 65 – First, the date when notice of the judgment, final order or
resolution was received, second, when a motion for new trial or
reconsideration was filed, and third, when notice of the denial thereof was
received. This is for the purpose of determining its timeliness.. (Seastar Marine
Services, Inc. vs. Bul-an, 444 SCRA 140 [2004]).
Petitions for certiorari, prohibition and mandamus against any interlocutory order are not
available under the Rule on Summary Procedure (Sec. 19), in a petition for a writ of
amparo (Sec. 19, Rule on the Writ of Amparo), and in a petition for a writ of habeas data
(Sec. 19, Rule on the Writ of Habeas Data). It is also not available in small claims cases
against any interlocutory order (Sec. 14 (g). A.M. No. 08-8-7-SC).
Requisites:
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
143
judgment is rendered. Remedy: to continue the case in due course and, when an
unfavorable verdict is handed down, to take an appeal in the manner authorized by law.
Exceptions (when recourse to certiorari or mandamus appropriate): (a) when trial court
issued the order without or excess of jurisdiction; (b) when there is patent grave abuse of
discretion by the trial court; or (c) when appeal would not prove to be a speedy and
adequate remedy as when an appeal would not promptly relieve defendants from the
injurious effects of the patently mistaken order (DBP vs. La Campana Development
Corp., 448 SCRA 384 [2005]).
c. NO APPEAL or any plain, speedy and adequate remedy in the ordinary course of law for
the purpose of annulling or modifying the proceeding
Certiorari filed instead of appeal during the period of appeal did not toll the period or
prevent judgment from becoming final (Del Rosario vs. Galagot, Galagot, 166 SCRA
429[1998]).
If remedy of appeal had already been lost by petitioner’s own neglect or error in choice
of remedies, certiorari will not lie as substitute or tool to shield petitioner from adverse
consequences of such neglect of error (Professional Regulations Commission vs. CA, 292
SCRA 155[1998]).
Exceptions:
a. when public welfare and advancement of public policy dictate
b. when broader interest of justice so requires
c. when writs issued are null and void
d. when questioned order amounts to an oppressive exercise of judicial authority
e. where appeal is not adequate, speedy and effective
>Availability of appeal does not foreclose recourse to certiorari where appeal is not
adequate, or equally beneficial, speedy and sufficient (PNB vs. Sayoc, 292 SCRA 365
[1998]).
>While general rule is that special civil action of certiorari may not be used as substitute
for lapsed appeal, rule may be relaxed when rigid application will result in manifest failure or
miscarriage of justice (Mejares vs. Reyes, 254 SCRA 425 [1992]).
> An appeal from the judgment does not bar a certiorari petition against the order
granting execution pending appeal and the concomitant issuance of a writ of execution.
Appeal would not be an adequate remedy from such premature execution when the same is
not founded on good reasons (Manacop vs. Equitable PCIBank, 468 SCRA 256, [2005])
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
144
> Simultaneous filing of a petition for certiorari under Rule 65 and an ordinary
appeal under Rule 41 cannot be allowed since one remedy would necessarily cancel each
other. For certiorari to prosper, it is not enough that the trial court committed grave abuse of
discretion amounting to lack or excess of jurisdiction; the requirement that there be no appeal,
or any plain, speedy and adequate remedy in the ordinary course of law must also be satisfied.
This is true even if the error ascribed to the trial court is lack of jurisdiction, etc. While it may be
true that a judgment or final order was rendered under circumstances that would otherwise
justify resort to a special civil action, the latter would be unavailing if there is an appeal, etc. If
the court has jurisdiction over the subject matter and of the persons, its ruling upon all questions
involved are within its jurisdiction and may be corrected only by appeal from the decision
(Manacop vs. Equitable PCIBank, 468 SCRA 256, [2005])
PROHIBITION
What is the purpose of prohibition?
To prevent unlawful and oppressive exercise of legal authority and to provide for a fair and
orderly administration of justice.
It is directed against proceedings that are done by
It is a PREVENTIVE remedy, to restrain the doing of some act to be done. Not intended to
provide a remedy for acts already accomplished.
Grave abuse of discretion – lower court has exercised its power in an arbitrary or despotic
manner, by reason of passion or personal hostility, and it must be so patent and gross as to
amount to an evasion, or to a virtual refusal to perform the duty enjoined or to act in
contemplation of law.
Excess of jurisdiction – the court, board or officer has jurisdiction over a case but has
transcended the same or acted without any authority.
MANDAMUS
When is mandamus the proper remedy?
It is the proper remedy if it can be shown that there is neglect on the part of a tribunal or
officer in the performance of an act which the law specifically enjoins as a duty or an unlawful
exclusion of a party from the use and enjoyment of a right or office to which he is entitled.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
145
c. The respondent must have the POWER TO PERFORM the act concerning which
the application for mandamus is made. For mandamus is a command to exercise
a power already possessed and to perform a duty already imposed (Alzate vs.
Aldona, 8 SCRA 219 [1965]).
d. There must be UNREASONABLE DELAY in the performance of the duty,
notwithstanding demand to perform it (Assn. of Small Landowners vs. Secretary
of Agrarian Reform, 175 SCRA 343 [1989].
When can mandamus issue to compel a discretionary act? – when there is grave abuse
of discretion.
Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is
“gross abuse of discretion, manifest injustice or palpable excess of authority” eguivalent to
denial of a settled right to which petitioner is entitled, and there is no other plain, speedy and
adequate remedy, the writ shall issue ( First Philippine Holdings vs. Sandiganbayan, 253 SCRA
30 [1996]).
b. Requisites
c. When petition for certiorari, prohibition and mandamus is proper
1. When appeal is not a speedy and adequate remedy (Saludes v. Pajarillo, 78 Phil.
754 [1947])
2. When an order is issued without or in excess of jurisdiction; (Philippine National
Bank v. Florendo, G.R. No. 62082, February 26, 1992, 206 SCRA 582 )
3. In consideration of public welfare and for the advancement of public policy (Jose v.
Zulueta, No. L-16598, May 31, 1961, 2 SCRA 574)
4. Order is a patent nullity (Marcelo v. De Guzman, No. L-29077. June 29, 1982, 114
SCRA 657)
5. To avoid future litigation (St. Peter Memorial Park, Inc. v. Campos, Jr., No. L-
38280, March 21, 1975, 63 SCRA 180);
6. To avoid a miscarriage of justice (Escudero v. Dulay, No. L-60578, February 23,
1988, 158 SCRA 69.);
7. In furtherance of the broader interest of justice and equities (Marahay v. Melicor,
G.R. No. 44980, February 6, 1990, 181 SCRA 811).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
146
d. Injunctive relief
SECTION 7. Expediting proceedings; injunctive relief . — The court in which the
petition is filed may issue orders expediting the proceedings, and it may also grant a
temporary restraining order or a writ of preliminary injunction for the preservation of the
rights of the parties pending such proceedings. The petition shall not interrupt the course of
the principal case unless a temporary restraining order or a writ of preliminary injunction has
been issued against the public respondent from further proceeding in the case.
Called petition for review on certiorari, is a A special civil action that is an original action
mode of appeal, which is but a continuation of and not a mode of appeal, and not a part of the
the appellate process over the original case appellate process but an independent action.
Seeks to review final judgments or final orders May be directed against an interlocutory order
of the court or where no appeal or plain or
speedy remedy available in the ordinary course
of law
Filed within 15 days from notice of judgment or Filed not later than 60 days from notice of
final order appealed from, or of the denial of judgment, order or resolution sought to be
petitioner’s motion for reconsideration or new assailed and in case a motion for
trial; reconsideration or new trial is timely filed,
whether such motion is required or not, the 60
day period is counted from notice of denial of
said motion;
Extension of 30 days may be granted for Extension no longer allowed;
justifiable reasons
Does not require a prior motion for Motion for Reconsideration is a condition
reconsideration precedent, subject to exceptions
Stays the judgment appealed from Does not stay the judgment or order subject of
the petition unless enjoined or restrained
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
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
147
Filed with only the Supreme Court May be filed with the Supreme Court, Court of
Appeals, Sandiganbayan, or Regional Trial
Court
SC may deny the petition motu propio on the Court may dismiss the petition outright on the
ground that the appeal is without merit, or ground that the same is patently without merit,
prosecuted manifestly for delay, or that the or prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial questions raised are too unsubstantial to
to require consideration require consideration
(Prohibition and Mandamus distinguished from Injunction; when and where to file
petition
Prohibition Injunction
Always the main action May be the main action or just a provisional
remedy
Directed against a court, a tribunal Directed against a party
exercising judicial or quasi-judicial functions
Ground must be that the court acted without Does not involve a question of jurisdiction
or in excess of jurisdiction
Prohibition Mandamus
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
148
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
149
Rule 65, Sec. 4, as amended by A. M. No. 07-7-12 dated Dec, 12, 2007
Following the hierarchy of courts, no certiorari against the RTC shall be filed with the
Supreme Court. This will help prevent the clogging of the Supreme Court’s dockets as litigants
will be discouraged from filing petitions directly with the Supreme Court.
For election cases involving acts or omissions of a municipal or regional trial court, the
petition shall be filed exclusively with the Comelec as ruled by the Supreme Court in
Relampagos vs. Comelec (243 SCRA 690, April 27, 1995).
8. Quo Warranto
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
150
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; or
(c) An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
151
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 all the parties to the action as
justice requires.
QUO WARRANTO
What is quo warranto?
A petition for quo warranto is a proceeding to determine the right of a person to the use or
exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-
founded, or if he has forfeited his right to enjoy the privilege (Mendoza vs. Allas, 302 SCRA 623
[1999]).
Quo warranto – remedy to try the right to an office or franchise and to oust the holder from its
enjoyment. There is usurpation or intrusion into office.
Mandamus – lies to enforce clear legal duties, not to try disputed titles. Respondent, without
claiming any right to an office, excludes petitioner therefrom.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
152
govenrment officials which contributed to the delay in the filing of the complaint for
reinstatement (Cristobal vs. Melchor, 78 SCRA 175 [1977])
9. Expropriation
a. Matters to allege in complaint for expropriation
Rule 67, Section 1. The complaint.
The right of eminent domain shall be exercised by the filing of a verified complaint which
shall state with certainty the right and purpose of expropriation, describe the real or personal
property sought to be expropriated, and 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. 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.
Contents of Complaint
1. Right and purpose of expropriation;
1. Description of the real or personal property sought to be expropriated;
2. All persons owning or claiming to own or occupying any part or interest therein must be
named as defendants, showing, as far as practicable, the separate interest of each
defendants;
3. If the title of the property to be expropriated is in the name of the Republic of the Philippines,
although occupied by private individuals, or if the title is obscure or doubtful, averment to
that effect shall be made in the complaint. (Rules of Court, Rule 67, Section 1)
c. When plaintiff can immediately enter into possession of the real property, in
relation to RA 8974
Expropriation procedures under Republic Act No. 8974 and Rule 67 of the Rules of
Court speak of different procedures, with the former specifically governing expropriation
proceedings for national government infrastructure projects. (Republic of the Philippines,
Represented by the Toll Regulatory Board vs. Holy Trinity Realty Development Corp., G.R.
No. 172410, April 14, 2008.)
The most crucial difference between Rule 67 and Rep. Act No. 8974 concerns the
particular essential step the Government has to undertake to be entitled to a writ of
possession. To be entitled to a writ of possession, Rule 67 merely requires the Government
to deposit with an authorized government depositary the assessed value of the property for
expropriation for it to be entitled to a writ of possession.
On the other hand, Rep. Act No. 8974 requires that the Government make a direct
payment to the property owner before the writ may issue. Moreover, such payment is based
on the zonal valuation of the BIR in the case of land, the value of the improvements or
structures under the replacement cost method, or if no such valuation is available and in
cases of utmost urgency, the proffered value of the property to be seized. (Republic vs.
Gingoyon, G.R. No. 166429, December 19, 2005)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
153
It is the plain intent of Rep. Act No. 8974 to supersede the system of deposit under Rule
67 with the scheme of "immediate payment" in cases involving national government
infrastructure projects. (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005 )
At the same time, Section 14 of the Implementing Rules recognizes the continued
applicability of Rule 67 on procedural aspects when it provides "all matters regarding
defenses and objections to the complaint, issues on uncertain ownership and conflicting
claims, effects of appeal on the rights of the parties, and such other incidents affecting the
complaint shall be resolved under the provisions on expropriation of Rule 67 of the Rules of
Court." (Republic vs. Gingoyon, G.R. No. 166429, December 19, 2005)
Under Rule 67, the only requirement for immediate possession is notice to the owner of
the property and deposit of the amount equivalent to the assessed value of the property.
(National Power Corporation v. Jocson, GR Nos. 94193-99, February 25, 1992) The
issuance of the writ of possession becomes a ministerial duty of the court if the preliminary
deposit has already been made by the expropriator. (Biglang-Awa v. Bacalla, GR Nos.
139927 and 139936, November 22, 2000)
The court has the jurisdiction to determine, in the same expropriation proceedings,
conflicting claims of ownership over the property involved and declare the lawful owner
thereof. (Republic vs. CFI of Pampangs, L-27006, June 30, 1970)
In the event the judgment of expropriation is reversed by the appellate court and the
case is remanded to the lower court with the mandate to determine the damages caused to
the landowner, such landowner has the option of proving such damages either in the same
expropriation case or in a separate action instituted for that purpose (MWV vs. De los
Angeles, 55 Phil. 776), as the judgment denying the right of expropriation is not res judicata
on the issue of damages arising from such illegal expropriation (Republic vs. Baylosis, 109
Phil. 580)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
154
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.
f. Order of Expropriation
Rule 67, Sec. 4. Order of expropriation.
If the objections to and the defenses against the right of the plaintiff to expropriate the
property are overruled, or when no party appears to defend as required by this Rule, the
court may issue an order of expropriation declaring that the plaintiff has a lawful right to take
the property sought to be expropriated, for the public use or purpose described in the
complaint, upon the payment of just compensation to be determined as of the date of the
taking of the property or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by any party
aggrieved thereby. Such appeal, however, shall not prevent the court from determining the
just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms as the court deems just and equitable.
Copies of the order shall be served on the parties. Objections to the appointment of any of
the commissioners shall be filed with the court within ten (10) days from service, and shall be
resolved within thirty (30) days after all the commissioners shall have received copies of the
objections.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
155
due notice to the parties to attend, view and examine the property sought to be expropriated
and its surroundings, and may measure the same, after which either party may, by himself or
counsel, argue the case. The commissioners shall assess the consequential damages to the
property not taken and deduct from such consequential damages the consequential benefits
to be derived by the owner from the public use or purpose of the property taken, the
operation of its franchise by the corporation or the carrying on of the business of the
corporation or person taking the property. But in no case shall the consequential benefits
assessed exceed the consequential damages assessed, or the owner be deprived of the
actual value of his property so taken. (6a)
EXPROPRIATION
Distinction between eminent domain and expropriation - Eminent domain is the right.
Power of the state to take or authorize the taking of any property within its jurisdiction for public
use without the owner’s consent. Inherent in sovereignty and exists in a sovereign state without
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
156
any recognition thereof in the Constitution. Possessed by the State. By delegation, may also be
possessed by local govts, other public entities, and public utilities.
Expropriation is the procedure for enforcing said right.
If upon the trial in such action 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 other charges as approved by the court, and costs, and shall render
judgment for the sum so found due and order that the same be paid to the court or to the
judgment obligee within a period of not less than ninety (90) days nor more than one hundred
twenty (120) days from the entry of judgment, and that in default of such payment the
property shall be sold at public auction to satisfy the judgment.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
157
Upon the finality of the order of confirmation or upon the expiration of the period of
redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if
any, shall be entitled to the possession of the property unless a third party is actually holding
the same adversely to the judgment obligor. The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from the court which ordered the foreclosure
d. Deficiency judgment
(1) Instances when court cannot render deficiency judgment
Rule 68, Sec. 5. How sale to proceed in case the debt is not all due.
If the debt for which the mortgage or encumbrance was held is not all due as provided in
the judgment, as soon as a sufficient portion of the property has been sold to pay the total
amount and the costs due, the sale shall terminate; and afterwards, as often as more
becomes due for principal or interest and other valid charges, the court may, on motion,
order more to be sold. But if the property cannot be sold in portions without prejudice to the
parties, the whole shall be ordered to be sold in the first instance, and the entire debt and
costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of
interest where such rebate is proper.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
158
owner only after finality of an action for owner only after confirmation of the sale;
consolidation of ownership;
Mortgagee is given a special power of attorney Mortgagee need not be given a special power
in the mortgage contract to foreclose the of attorney.
mortgaged property in case of default.
Equity of redemption
Equity of redemption in judicial foreclosure of mortgage is the right to pay the court or the
judgment obligee the amount of the judgment within a period of not less than 90 days nor more
than 120 days from entry of judgment or even before confirmation of sale by the court. After
such order of confirmation, no redemption can be effected. Limpin vs. IAC, 166 SCRA 87 (1988)
In default of such payment, the property shall be sold at public auction to satisfy the judgment
(Rule 68, Sec, 2).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
159
bind the other lien holders. In this case, their foreclosure sale but before its confirmation, the
equity of redemption remains unforeclosed. A mortgagor may exercise his right of pay the
separate foreclosure proceeding has to be proceeds of the sale and prevent the
brought against them to require them to redeem confirmation of the sale.
from the first mortgagee or from the party
acquiring the title to the mortgaged property.
If not by banks, the mortgagors merely have an Exception: there is a right of redemption if the
equity of redemption, which is simply their right, foreclosure is in favor of banks as mortgagees,
as mortgagor, to extinguish the mortgage and whether the foreclosure be judicial or
retain ownership of the property by paying the extrajudicial. This right of redemption is
secured debt prior to the confirmation of the explicitly provided in Sec. 47 of the General
foreclosure sale. Banking Law of 2000. While the law mentions
the redemption period to be one year counted
from the date of registration of the certificate in
the Registry of Property
Deficiency judgment
Deficiency judgment may be awarded in favor of the plaintiff against the mortgagor, if the
proceeds of the sale of the property are not sufficient to satisfy the judgment. Motion for
deficiency judgment must be filled after then sale, when the deficiency is known.
What is the prescriptive period to file action for deficiency in extrajudicial foreclosure of
real estate mortgage?
Ten (10) years (Arts. 1144 and 1142, Civil Code)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
160
to notify the mortgagors since they had already lost all their interests in the property when they
failed to redeem the same.
Even if the mortgagor appeals an order denying a petition assailing the writ of possession
granted to the buyer and the sale at public auction, the buyer remains in possession of the
property pending resolution of the appeal. It is the ministerial duty of the court to issue writ
of possession in favor of the purchaser in a foreclosure sale. The trial court has no
discretion on the matter.
A writ of possession may be issued under the following instances: (1) in land registration
proceedings under Section 17 of Act 496; (2) in a judicial foreclosure, provided the debtor is in
possession of the mortgaged realty and no third person, not a party to the foreclosure suit, had
intervened; (3) in an extrajudicial foreclosure of a real estate mortgage under Section 7 of Act
No. 3135, as amended by Act No. 4118; and (4) in execution sales (last paragraph of Section
33, Rule 39 of the Rules of Court).
The present case falls under the third instance. Under Section 7 of Act No. 3135, as amended
by Act No. 4118, a writ of possession may be issued either (1) within the one-year redemption
period, upon the filing of a bond, or (2) after the lapse of the redemption period, without need of
a bond. (PNB vs. Sanao Marketing Corporation, G.R. No. 153951, July 29, 2005)
11. Partition
a. Who may file complaint; who should be made defendants
Rule 69, Section 1. Complaint in action for partition of real estate.
A person having the right to compel the partition of real estate may do so as provided in this
Rule, setting forth in his complaint the nature and extent of his title and an adequate description
of the real estate of which partition is demanded and joining as defendants all other persons
interested in the property.
This involves a determination of whether the subject property is owned in common and
whether all the co-owners are made parties in the case. All co-owners are indispensable
parties. (Rules of Court, Rule 3, Section 7. Compulsory joinder of indispensable parties.
Parties in interest without whom no final determination can be had of an action shall be
joined either as plaintiffs or defendants) The order may also require an accounting of rents
and profits recovered by the defendant. This order of partition and accounting is
appealable.( Miranda vs. Court of Appeals, No. L-33007, June 18, 1976, 71 SCRA 295) If
not appealed, then the parties may partition the common property in the way they want. If
they cannot agree, then the case goes into the second stage. However, the order of
accounting may in the meantime be executed. (De Mesa vs. Court of Appeals, G.R. No.
109387, April 25, 1994, 231 SCRA 773)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
161
If the parties are unable to agree upon the partition, the partition shall be done for the
parties with the assistance of not more than three (3) commissioners. (Municipality of Biñan
vs. Garcia, GR No. 69260, December 22, 1989) This is also a complete proceeding and the
order or decision is appealable.
h. Prescription of action
Prescription of Action
Action for partition is imprescriptible for as long as the co-owners expressly or impliedly
recognize the co-ownership. (Heirs of Bartolome Infante and Juliana Infante vs. Court of
Appeals, G.R. No. 77202 June 22, 1988) However, if a co-owner repudiates the co-
ownership and makes known such repudiation to the other co-owners, then partition is no
longer a proper remedy of the aggrieved co-owner. S/he should filed an accion
reivindicatoria which is prescriptible. (Heirs of Catalino Jardin vs. Heirs of Sixto Hallasgo,
G.R. No. L-55225, September 30, 1982)
PARTITION
Define partition
Partition is the division between two or more persons of real or personal property which they
own as co-partners, joint tenants or tenants in common, effected by the setting apart of such
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
162
interests so that they may enjoy and possess it severally. Purpose is to put an end to the
common tenancy of the land or co-ownership.
Presupposes that the thing to be divided is owned in common. It is immaterial in whose
name the properties were declared for taxation purposes for it is presumed beforehand that the
parties to the partition admit the fact of co-ownership and now want to effect a separation of
interest.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
163
In case several demands to vacate are made, the period is reckoned from the date of the
LAST DEMAND.
Possession by tolerance
When there is possession by tolerance, possession or detainer becomes illegal only from
the time that there is a DEMAND to vacate. The year for bringing the action for illegal detainer
should be counted only from such demand (Ballesteros vs. Abion, G. R. No. 143661, Feb. 9,
2006).
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
164
6. An action for reformation of instrument (e.g., from deed of absolute sale to one sale
with pacto de retro) does not suspend an ejectment suit between the same parties.
7. An action for reconveyance of property or accion reivindicatoria also has no effect
on ejectment suits regarding the same property.
8. Suits for annulment of sale, or title, or document affecting property operate to abate
ejectment actions respecting the same property.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
165
Sec. 22 of BP 129 as amended by R.A. No. 7691 (where the assessed value of the real
property does not exceed P20,000.00 or P50,000.00 in Metro Manila) grants the MTC exclusive
jurisdiction over subject case.The nature of an action is determined not by what is stated in the
caption of the complaint but its allegations and the reliefs prayed for. Where the ultimate
objective of the plaintiff is to obtain title to real property, it should be filed in the proper court
having jurisdiction over the assessed value of the property subject thereof. (Barangay Piapi vs.
Talip, 469 SCRA 409 [2005]; Quinagoran vs. Court of Appeals, G.R. No. 155179, August 24,
2007)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
166
The actions envisaged in the aforequoted provisions (Secs. 19 and 33. BP 129, as amended
by RA 7691) are accion publiciana and reivindicatoria. To determine which court has jurisdiction
over the action, the complaint must allege the assessed value of the real property subject of the
complaint or the interest thereon (Laresma vs. Abellana, G.R. No. 140973, November 11, 2004,
442 SCRA 156)
d. Who may institute the action and when; against whom the action may be
maintained
Rule 70, Section 1. Who may institute proceedings, and when.
Subject to the provisions of the next succeeding section, a person deprived of the possession
of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor,
vendee, or other person 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, may, at any time within one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper Municipal Trial Court against the person
or persons unlawfully withholding or depriving of possession, or any person or persons claiming
under them, for the restitution of such possession, together with damages and costs.
e. Pleadings allowed
Rule 70, Sec. 4. Pleadings allowed.
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. (3a, RSP)
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.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
167
supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff
to pay the rents, damages, and costs accruing down to the time of the judgment appealed from,
and unless, during the pendency of the appeal, he deposits with the appellate court the amount
of rent due from time to time under the contract, if any, as determined by the judgment of the
Municipal Trial Court. In the absence of a contract, he shall deposit with the Regional Trial Court
the reasonable value of the use and occupation of the premises for the preceding month or
period at the rate determined by the judgment of the lower court on or before the tenth day of
each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal
Trial Court, with the other papers, to the clerk of the Regional Trial Court to which the action is
appealed.
All amounts so paid to the appellate court shall be deposited with said court or authorized
government depositary bank, and shall be held there until the final disposition of the appeal,
unless the court, by agreement of the interested parties, or in the absence of reasonable
grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise.
Should the defendant fail to make the payments above prescribed from time to time during the
pendency of the appeal, the appellate court, upon motion of the plaintiff, and upon proof of such
failure, shall order the execution of the judgment appealed from with respect to the restoration of
possession, but such execution shall not be a bar to the appeal taking its course until the final
disposition thereof on the merits.
After the case is decided by the Regional Trial Court, any money paid to the court by the
defendant for purposes of the stay of execution shall be disposed of in accordance with the
provisions of the judgment of the Regional Trial Court. In any case wherein it appears that the
defendant has been deprived of the lawful possession of land or building pending the appeal by
virtue of the execution of the judgment of the Municipal Trial Court, damages for such
deprivation of possession and restoration of possession may be allowed the defendant in the
judgment of the Regional Trial Court disposing of the appeal.
All ejectment cases are covered by the summary procedure regardless of whether they
involve questions of ownership..
The adjudication of the case is done on the basis of affidavits and position papers. The
court is no longer allowed to hold hearings to receive testimonial evidence.
Should the court find it necessary to clarify certain issues, it may require the parties instead
to submit affidavits or other evidence. The proceeding is required to be summary so as to
promote the speedy disposition of ejectment cases.
In line with the summary nature of the action for forcible entry or unlawful detainer, the
filing of the following pleadings are prohibited:
1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the
subject matter, or failure to comply with Section 12. Section 12 provides that cases
requiring reply for conciliation, whether there is no showing of compliance with such
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
168
requirement, shall be dismissed without prejudice, and may be reviewed only after
that requirement shall have been complied with.
2. Motion for bill of particulars.
3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial.
4. Petition for relief from judgment.
5. Motion for extension of time to file pleadings, affidavits or any other paper.
6. Memoranda.
7. Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court.
8. Motion to declare the defendant in default.
9. Dilatory motions for postponement.
10. Reply.
11. Third party complaints.
12. Intervention.
13. Contempt
a. Kinds of contempt
Definition.
Contempt of court is a defiance of the authority, justice or dignity of the court, such
conduct as tends to bring the authority and administration of the law into disrespect of, to
interfere with, or prejudice parties litigant or their witnesses during litigation. It is defined as a
disobedience to the court by setting up an opposition to its authority, justice and dignity. It
signifies not only a willful disregard or disobedience to the court’s order but such conduct as
tends to bring the authority of the court and the administration of law into disrefute or in some
manner to impede the due administration of justice. (Halili v. Court of Industrial Relations,
No. L-24864, April 30, 1985, 136 SCRA 112)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
169
are inapplicable to civil contempt proceedings. cases, insofar as such procedure is consistent
with the summary nature of contempt
proceedings.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
170
2. Indirect Contempt - indirect or constructive contempt is one committed away from the court
involving disobedience or resistance to a lawful writ, processs, order, judgment or command of
the court, or tending to belittle, degrade, obstruct, interrupt or embarrass the court (Delima vs.
Gallardo, 77 SCRA 286 [1977]).
3. Civil Contempt - the failure to do something ordered by the court which is for the benefit of
a party.
4. Criminal Contempt - any conduct directed against the authority or dignity of the court.
2) Indirect contempt – which may be punished only after written charge and due
hearing under Section 3 of Rule 71. (Section 3. Indirect contempt to be punished after
charge and hearing. 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…)
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
171
presence of or so near a court as to obstruct or interrupt the proceedings before the same,
including disrespect toward the court, offensive personalities toward others, or refusal to be
sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully
required to do so, may be summarily adjudged in contempt by such court and punished by a
fine not exceeding two thousand pesos (P2,000.00)or imprisonment not exceeding ten (10)
days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine
not exceeding two hundred pesos (P200.00) or imprisonment not exceeding one (1) day, or
both, if it be a lower court.
He may not appeal from the judgment. The remedy is certiorari or prohibition under Rule
65 on the ground of grave abuse of discretion or lack of jurisdiction on the part of the judge.
Execution of the judgment shall be suspended if he files a bond fixed by the court
conditioned that he will abide by and perform the judgment should the petition be decided
against him (Rule 71, Sec. 2)
Rule 71, Sec. 11. Review of judgment or final order; bond for stay. — The judgment or
final order of a court in a case of indirect contempt may be appealed to the proper court in
criminal cases. But execution of the judgment or final order shall not be suspended until a bond
is filed by the person adjudged in contempt, in an amount fixed by the court from which the
appeal is taken, conditioned that if the appeal be decided against him he will abide by and
perform the judgment or final order.
In all other cases, charges for indirect contempt shall be commenced by a verified petition
with supporting particulars and certified true copies of documents or papers involved therein,
and upon full compliance with the requirements for filing initiatory pleadings for civil actions in
the court concerned. 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.
www.chanroblesbar.com : www.chanroblesbar.com.ph
ChanRobles Internet Bar Review : ChanRobles Professional Review, Inc.
172
Quasi-judicial agencies that have the power to cite persons for indirect contempt pursuant
to Rule 71 of the Rules of Court can only do so by initiating them in the proper Regional Trial
Court. It is not within their jurisdiction and competence to decide the indirect contempt cases. These
matters are still within the province of the Regional Trial Courts. In the present case, the indirect
contempt charge was filed, not with the Regional Trial Court, but with the PARAD, and it was the
PARAD that cited Mr. Lorayes with indirect contempt.
Hence, the contempt proceedings initiated through an unverified "Motion for Contempt" filed by
the respondent with the PARAD were invalid for the following reasons: First, the Rules of Court
clearly require the filing of a verified petition with the Regional Trial Court, which was not complied
with in this case. The charge was not initiated by the PARAD motu proprio; rather, it was by a motion
filed by respondent. Second, neither the PARAD nor the DARAB have jurisdiction to decide the
contempt charge filed by the respondent. The issuance of a warrant of arrest was beyond the power
of the PARAD and the DARAB. Consequently, all the proceedings that stemmed from respondent’s
"Motion for Contempt," specifically the Orders of the PARAD dated August 20, 2000 and January 3,
2001 for the arrest of Alex A. Lorayes, are null and void.( Land Bank of the Philippines vs.
Listana, G.R. No. 152611, August 5, 2003)
www.chanroblesbar.com : www.chanroblesbar.com.ph