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Civil Procedure 2017 1 PDF
Civil Procedure 2017 1 PDF
Civil Procedure 2017 1 PDF
REMEDIAL LAW
CIVIL PROCEDURE
Bar Review Guide 2017
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
2. As to formality
The method of conducting a judicial proceeding to resolve disputes involving private parties for
the purpose of enforcing private rights or obtaining redress for the invasion of rights.
In the Philippines, the terms action and suit are synonymous (Lopez vs. Campania de Seguros (16
SCRA 855 [1966])
1. Substantive law the law that creates, defines regulates and extinguishes rights
and obligations
2. Remedial law the law that provides the procedure or remedy for enforcement
of rights and obligations through the courts of justice.
The Supreme Court has the constitutional power to promulgate rules concerning pleading,
practice and procedure in all courts (Art. VIII, Sec. 5(5], Constitution).
The power of Congress under the 1935 and 1973 Constitutions to repeal, alter or supplement
rules concerning pleading, practice and procedure was taken away in the 1987 Constitution
(Echegaray vs. Secretary of Justice, G.R. No. 132601, January 19, 1999).
(a) The rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases,
(b) The rules shall be uniform for all courts of the same grade, and
(c) The rules shall not diminish, increase, or modify substantive rights. (Art. VIII,
Sec. 5[5], Constitution). [DIM]
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
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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.)
Procedural and substantive rules
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.
If it operates as a means of implementing an existing right procedural,
Exs. where to prosecute an appeal or transferring venue of appeal
(a) appeals from decisions of Ombudsman in administrative cases
be made to CA, or (b) requiring that review of NLRC decisions be
filed with CA (St. Martin Funeral Home vs. NLRC, 295 SCRA 494
[1998])
2. Power of the Supreme Court to amend and suspend procedural rules
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).
D. Nature of Philippine Courts
1. Meaning of a court
A court is a tribunal with the authority to adjudicate legal disputes between parties and carry out
the administration of justice in civil, criminal, and administrative matters in accordance with the
rule of law.
The system of courts that interpret and apply the law are collectively known as the judiciary
2. Court as distinguished from a judge
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.
3. Classification of Philippine courts
1. Regular Courts Courts authorized to engage in the general administration of
justice.
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
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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. Sharia 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 to exercise adjudicatory powers in certain types of
controversies, particularly if same would facilitate the attainment of the
objectives for which the administrative agency had been 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.
4. Courts of original and appellate jurisdiction
a. Court of original jurisdiction one where a case is originally commenced
1) Municipal Trial Court
2) Regional Trial Court
3) Court of Appeals
4) Supreme Court
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
5. Courts of general and special jurisdiction
a. General jurisdiction courts which take cognizance of all kinds of cases, civil or
criminal, except those assigned to special courts and courts of limited jurisdiction
1) Regional Trial Court
b. Special jurisdiction courts which have the power to hear only certain types of
cases, or are clothed with special powers for the performance of specified duties
beyond which they have no authority of any kind.
1) Sandiganbayan
2) Court of Tax Appeals
3) Sharia Court
6. Constitutional and statutory courts
a. Constitutional those created by the Constitution
1) Supreme Court
b. Statutory those created by the legislature
1) Court of Appeals
2) Regional Trial Court
3) Municipal Trial Court
4) Sandiganbayan
5) Court of Tax Appeals
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6) Sharia Court
7. Courts of law and equity
Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction
is dispensed with in the same tribunal. (. U.S. vs. Tamparong, 31 Phil. 321)
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).
8. Principle of judicial hierarchy
Pursuant to this doctrine, direct resort from the lower courts to the Supreme Court will not be
entertained unless the appropriate remedy cannot be obtained in the lower tribunals.
Rationale: (a) to prevent inordinate demands upon the SCs time and attention which are better
devoted to those matters within its exclusive jurisdiction, and (b) to prevent further
overcrowding of the SCs 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]).
9. Doctrine of non-interference or doctrine of judicial stability
This principle holds that courts of equal and coordinate jurisdiction cannot interfere with each
other’s orders (Lapu lapu Dev and Housing Corp vs. Group Management Corp, 338 SCRA 493).
Hence, a RTC has no power or authority to nullify or enjoin the enforcement of a writ of
possession issued by another Regional Trial Court (Suico Industrial Corp vs; CA, 301 SCRA 212).
The principle also bars a court from reviewing or interfering with the judgment of a co equal
court over which it has no appellate jurisdiction or power of review (Villamor vs. Salas, 203 SCRA
540). Exc. Third party claim
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).
II. General Principles on 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
A. Jurisdiction over the parties
1. How jurisdiction over the plaintiff is acquired
Over person of plaintiff acquired upon filing of complaint or initiatory pleading and paying docket
or filing fees;
2. How jurisdiction over the defendant is acquired
Over person of defendant service on him of coercive process in the manner provided by law
(summons) or his voluntary submission to the jurisdiction of the court or tribunal (voluntary
appearance).
What is the effect of voluntary appearance?
The defendants voluntary appearance in the action shall be equivalent to SERVICE OF SUMMONS.
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However, inclusion in a motion to dismiss on other grounds aside from lack of jurisdiction over
the person of the defendant shall not be deemed a voluntary appearance (Rule 14, Sec. 20).
NOTE:
a. Filing of a motion for reconsideration and appeal is tantamount to voluntary
submission to the jurisdiction of the court.
b. Any mode of appearance in court by a defendant or his lawyer is equivalent to
service of summons, absent any indication that the appearance of counsel was
precisely to protest the jurisdiction of the court over the person of defendant
(Delos Santos vs. Montesa, 221 SCRA 15 [1993]).
B. Jurisdiction over the subject matter
1. Meaning of jurisdiction over the subject matter
a. subject matter
1. The power to hear and determine cases of the general class to which the
proceeding in question belongs.
2. Determined by the LAW IN FORCE at the time of its institution. Once the court
acquires jurisdiction, it may not be ousted by any subsequent law placing
jurisdiction in another tribunal, except (a) when the law itself so provides or (b)
the statute is clearly intended to apply to actions pending before its enactment.
3. Matter of legislative enactment which none but the legislature can change.
4. Once jurisdiction is acquired, court RETAINS it until the final determination of
the case
5. Never acquired by consent or acquiescence of the parties or by laches, nor by
unilateral assumption thereof by a tribunal.
6. Determined by the ALLEGATIONS in the complaint and the CHARACTER of the
relief sought.
7. Does not depend on pleas or defenses of defendant in an answer or motion to
dismiss.
2. Jurisdiction versus the exercise of jurisdiction
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 courts authority to decide the suit. In other
words, they relate to the courts 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]).
3. Error of jurisdiction as distinguished from error of judgment
An error of judgment is one in which the court may commit in the exercise of its jurisdiction, and
which error is reversible only by an appeal. Error of jurisdiction is one where the act complained
of was issued by the court without or in excess of jurisdiction and which error is correctible only
by the extraordinary writ of certiorari. Certiorari will not be issued to cure errors by the trial court
in its appreciation of the evidence of the parties, and its conclusions anchored on the said findings
and its conclusions of law. As long as the court acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will amount to nothing more than mere errors of
judgment. (Julies Franchise Corporation vs. Ruiz, G.R. No. 180988, August 28, 2009, 597 SCRA
463.)
4. How jurisdiction is conferred and determined
Conferred by the LAW IN FORCE at the time of its institution. Determined by the ALLEGATIONS
in the complaint and the CHARACTER of the relief sought
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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. 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)
e. Direct Appeal from land registration and cadastral cases decided by
metropolitan trial courts, municipal trial courts, and municipal circuit trial courts
based on their delegated jurisdiction
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. Court of Tax Appeals
A. Exclusive appellate jurisdiction
1. Decisions of the Commissioner of Internal Revenue in cases involving disputed assessments,
refunds of internal revenue taxes, fees or other charges, penalties in relation thereto, or other
matters arising under the National Internal Revenue or other laws administered by the Bureau
of Internal Revenue;
2. Inaction by the Commissioner of Internal Revenue in cases involving disputed assessments,
refunds of internal revenue taxes, fees or other charges, penalties in relations thereto, or other
matters arising under the National Internal Revenue Code or other laws administered by the
Bureau of Internal Revenue, where the National Internal Revenue Code provides a specific period
of action, in which case the inaction shall be deemed a denial;
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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;
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.
B. Jurisdiction over cases involving criminal offenses:
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.
2. Exclusive appellate jurisdiction in criminal offenses0
a. Over appeals from the judgments, resolutions or orders of the Regional Trial
Courts in tax cases originally decided by them, in their respective territorial
jurisdictions.
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.
C. Jurisdiction over tax collection cases
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.
2. Exclusive appellate jurisdiction in tax collection cases:
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 jurisdictions.
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
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6. Family Courts
A. Exclusive and Original Jurisdiction
1. Criminal cases where one or more of the accused is below eighteen (18) years
of age but not less than nine (9) years of age, when one or more of the victims is
a minor at the time of the commission of the offense: Provided, That if the minor
is found guilty, the court shall promulgate sentence and ascertain any civil liability
which the accused may have incurred. The sentence, however, shall be suspended
without need of application pursuant to Presidential Decree No. 1903, otherwise
known as The Child and Youth Welfare Code; (RA 8369 [Family Courts Act of 1997])
2. Petitions for guardianship, custody of children, habeas corpus in relation to the
latter; (Sec. 3, A.M. No. 03 04 04 SC, effective May 15, 2003; Sec. 3, A.M. No. 03
02 05 SC, effective April 15, 2003)
3. Petitions for adoption of children and the revocation thereof; (Secs. A.20 and
B.28, A.M. No. 02 6 02 SC, effective August 22, 2002; See also Rep. Act No. 9523
or An Act Requiring Certification of the Department of Social Welfare and
Development to Declare A Child Legally Available for Adoption as a Prerequisite
for Adoption Proceedings, Amending for this Purpose Certain Provisions of
Republic Act No. 8552, otherwise known as The Domestic Adoption Act of 1998,
Republic Act No. 8043, otherwise known as The Inter Country Adoption Act of
1995, Presidential Decree No. 603, otherwise known as The Child and Youth
Welfare Code, and for Other Purposes, approved on March 12, 2009)
4. Complaints for annulment of marriage, declaration of nullity of marriage, and
those relating to marital status and property relations of husband and wife or
those living together under different status and agreements, and petitions for
dissolution of conjugal partnership of gains; (Sec. 2, A.M. No. 02 11 10 SC,
effective March 15, 2003)
5. Petitions for involuntary commitment of a child, for removal of custody against
child placement or child caring agency or individual, and for commitment of
disabled child; (Secs. 4[b], 5[a][ii], 6[b], A.M. No. 02 1 19 SC, effective April 15,
2002)
6. Cases against minors cognizable under Rep. Act No. 9165, or The
Comprehensive Dangerous Drugs Act of 2002; (See also A.M. No. 07 8 2 SC,
effective November 5, 2007)
7. Violation of Rep. Act No. 7610 [1991], otherwise known as the Special
Protection of Children Against Child Abuse, Exploration and Discrimination Act, as
amended by Rep. Act No. 7658 [1993] and as further amended by Rep. Act No.
9231 [2003];
8. (RA 9775 [Anti Child Pornography Act of 2009]
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)
7. Municipal Trial Courts/ Metropolitan Trial Courts
A . Original Jurisdiction
1. Civil
a. Exclusive
1) Actions involving personal property valued at not
more than PhP 300,000.00 (PhP 400,000.00 in
Metro Manila)
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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 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
defendants interest in the property and not to render a judgment against him (Valmonte vs. CA,
252 SCRA 92 [1996]).
INDEPENDENT CIVIL ACTION - Art. 33, Civil Code. In cases of defamation, fraud, and physical
injuries a civil action for damages, entirely separate and distinct from the criminal action, may
be brought by the injured party. Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence.
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).
Elements of cause of action:
1. legal right of plaintiff
2. corresponding obligation of defendant to respect or not to violate such right
3. act or omission of defendant which violates the legal right of plaintiff
constituting a breach of the obligation of defendant to plaintiff
2. Right of Action versus Cause of action
1. Cause of action
a. reason for bringing an action
b. formal statement of the operative facts that give rise to remedial rights.
c. matter of procedure and is governed by the pleadings filed by the parties
d. not affected by affirmative defenses (fraud, prescription, estoppel, etc.)
2. Right of action
a. remedy for bringing an action
b. the remedial right to litigate because of the operative facts
c. matter of right and depends on substantive law
d. affected by affirmative defenses (fraud, prescription, estoppel, etc.)
3. Failure to state a cause of action
Elements of a Cause of Action
A cause of action exists if the following elements are present:
1) a right in favor of the plaintiff by whatever means and under whatever law it
arises or is created;
2) an obligation on the part of the named defendant to respect or not to violate
such right; and
3) act or omission on the part of such defendant violative of the right of the
plaintiff or constituting a breach of the obligation of the defendant to the plaintiff
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for which the latter may maintain an action for recovery of damages. (Parañaque
Kings Enterprises, Inc. vs. Court of Appeals, G.R. No. 11538; February 16, 1997.)
The fundamental test for failure to state a cause of action is whether, admitting the veracity of
what appears on the face and within the four corners of the complaint, plaintiff is entitled to the
relief prayed for. Stated otherwise, may the court render a valid judgment upon the facts alleged
therein? Indeed, the inquiry is into the SUFFICIENCY, not the veracity of the material allegations.
If the allegations in the complaint furnish sufficient basis on which it can be maintained, it should
not be dismissed regardless of the defenses that may be presented by defendants. (AC Enterprise
vs. Frabelle Properties Corp., G.R. No. 166744, November 2, 2006.)
4. Test of sufficiency of a cause of action
How to determine cause of action by the FACTS ALLEGED in the complaint. Only issue:
ADMITTING such alleged facts TO BE TRUE, may the court render a VALID JUDGMENT in
accordance with the prayer in the complaint?
In determining whether the complaint states a cause of action, the ANNEXES ATTACHED to the
complaint may be considered, they being part of the complaint.
5. Splitting a single cause of action and its effects
Rule 2, Sec. 4. Splitting a single cause of action; effect of. If two or more suits are instituted on
the basis of the same cause of action, the filing of one or a judgment upon the merits in any one
is available as a ground for the dismissal of the others.
Basic rule in filing of action (Rule 2, Secs. 3 4)
1. For one cause of action (one delict or wrong) , file only ONE ACTION or suit. Generally, NO
SPLITTING A SINGLE CAUSE OF ACTION. Reasons: a. to avoid multiplicity of suits; b. to minimize
expenses, inconvenience and harassment.
2. Remedy against splitting a single cause of action (two complaints separately filed for one
action) defendant may file:
a. motion to dismiss on the ground of
(1) litis pendentia, if first complaint is still pending (Rule 16, Sec. 1
[e])
(2) res judicata, if first complaint is terminated by final judgment
(Rule 16, Sec. 1 [f])
b. answer alleging either of above grounds as affirmative defense (Rule 16, Sec. 6)
If defendant fails to raise ground on time, he is deemed to have WAIVED them.
Splitting must be questioned in the trial court; cannot be raised for the first time
on appeal.
Splitting a cause of action prohibited
May a lessee file with MeTC an action for forcible entry and damages against the lessor and a
separate suit with RTC for moral and exemplary damages plus actual and compensatory damages
based on the same forcible entry?
NO. Claims for damages sprung from the main incident being heard before MeTC. Unlawful taking
or detention of property of another is only one single cause of action regardless of number of
rights that may have been violated. All such rights should be alleged in a single complaint as
constituting one single cause of action (Progressive Development Corp. vs. CA, 301 SCRA 637
[1999])
The cause of action in the earlier Annulment Case is the alleged nullity of the REM (due to its
allegedly falsified or spurious nature) which is allegedly violative of Good lands right to the
mortgaged property. It serves as the basis for the prayer for the nullification of the REM. The
Injunction Case involves the same cause of action, inasmuch as it also invokes the nullity of the
REM as the basis for the prayer for the nullification of the extrajudicial foreclosure and for
injunction against consolidation of title. While the main relief sought in the Annulment Case
(nullification of the REM) is ostensibly different from the main relief sought in the Injunction Case
(nullification of the extrajudicial foreclosure and injunction against consolidation of title) , the
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cause of action which serves as the basis for the said reliefs remains the same the alleged nullity
of the REM. Thus, what is involved here is the third way of committing forum shopping, i.e., filing
multiple cases based on the same cause of action, but with different prayers. (Asia United Bank
vs. Goodland Company, Inc., G.R. No. 191388, March 9, 2011)
6. Joinder and misjoinder of causes of action
Joinder of causes of action is the assertion of as many causes of action as a party may have
against an opposing party in one pleading alone. It is not compulsory, but merely permissive.
(Rule 2, Sec. 5)
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. An action for recovery of possession of property is a real action. Thus, it
should be filed in the place where the property is located, pursuant to Rule 4,
Section 1. (Decena vs. Piquero, G.R. No. 155736, March 31, 2005).
N.B. As to joinder in the MTC, it must have jurisdiction over ALL THE CAUSES OF
ACTION and must have common venue.
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.
Misjoinder of causes of action not ground for dismissal of an action
A misjoined cause may, on motion of a party or on the initiative of the court, be severed and
proceeded with separately (Rule 2, Sec. 6).
Note: Unlike splitting of a cause of action, a misjoinder is NOT a ground for the dismissal of an
action.
C. Parties to Civil Actions
1. Real Parties in interest; Indispensable parties; Representatives as parties; Necessary parties;
Indigent Parties; Alternative defendants
Real Parties in interest;
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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.
Parties to an action(Rule 3, Sec. 1)
1. Plaintiff the claiming party, the counter claimant or the third (fourth, etc.)
party plaintiff.
2. Defendant the original defending party, the defendant in a counterclaim
(plaintiff) , the cross defendant (defendant in a cross claim) , or the third (fourth,
etc.) party defendant.
Parties to an action must be natural or juridical persons, possessed of LEGAL PERSONALITY,
otherwise, no suit can be lawfully prosecuted by or against said persons.
A dead person cannot be a plaintiff or defendant in an action, as he possesses NO LEGAL
PERSONALITY to sue or be sued.
In general, who may be party plaintiff or party defendant?
1. Natural persons
a. Must be of legal age and with capacity to sue (Art. 37, Civil Code)
b. Husband and wife shall sue and be sued jointly (Rule 3, Sec. 4)
c. Minor or incompetent with the assistance of the father, mother, guardian, or if
he has none, a guardian ad litem (Rule 3, Sec. 5)
d. Non resident
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)
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
The parties to civil actions are classified as follows:
1. Real parties in interest (Rule 3, Sec. 2)
2. Representative parties (Sec. 3)
3. Indispensable parties (Sec. 7)
4. Necessary parties (Sec. 8)
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Lack of legal capacity to sue plaintiffs 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])
Plaintiffs 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. (Tanvs. 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.
Plaintiffs lack of personality to sue is a ground for a motion to dismiss based on the fact that the
complaint, on its face, states no cause of action (Rule 16, Sec. 1 [g]). (Evangelista vs. Santiago,
457SCRA 744 [2005])
2. Compulsory and permissive joinder of parties
Rule 3, Sec. 6. Permissive joinder of parties.
All persons in whom or against whom any right to relief in respect to or arising out of the SAME
TRANSACTION or series of transactions is alleged to exist, whether jointly, severally, or in the
alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint, where any QUESTION OF LAW OR FACT COMMON to all such
plaintiffs or to all such defendants may arise in the action; but the court may make such orders
as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense
in connection with any proceedings in which he may have no interest.
Rule 3, Sec. 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.
3. Misjoinder and non-joinder of parties
Rule 3, Sec. 9. Non joinder of necessary parties to be pleaded.
Whenever in any pleading in which a claim is asserted a necessary party is not joined, the pleader
shall set forth his name, if known, and shall state why he is omitted. Should the court find the
reason for the omission unmeritorious, it may order the inclusion of the omitted necessary party
if jurisdiction over his person may be obtained.
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed
a WAIVER of the claim against such party.
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
Compulsory joinder of parties
What is the effect of failure to include indispensable parties?
The failure to include indispensable parties results in DISMISSAL of the action. Parties in interest
without whom there can be no final determination of an action SHALL be joined either as
plaintiffs or defendants (Rule 3, Sec. 7).
Absence of indispensable parties renders all subsequent actions of the court NULL AND VOID. It
results in lack of authority to act not only as to the party absent but also as those present
(Domingo vs. Scheer, 421 SCRA 468 [2004]).
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Is failure to implead an indispensable party a ground for automatic dismissal of the action?
NO. Neither misjoinder or non joinder of parties is ground for dismissal of an action. Parties may
be dropped or added by order of the court on motion of any party on its own initiative at any
stage of the action and on such terms as are just . Any claim against a misjoined party may be
severed and proceeded with separately (Rule 3, Sec. 11).
Procedure for dismissal if indispensable party is not impleaded
a. The responsibility of impleading all the indispensable parties rests on the
plaintiff. To avoid dismissal, the remedy is to implead the non party claimed to be
indispensable.
b. If plaintiff REFUSES to implead an indispensable party despite the order of the
court, the complaint may be dismissed upon motion of defendant or upon the
courts own motion.
c. Only upon unjustified failure or refusal to obey the order to include is the action
dismissed (Domingo vs. Scheer, supra).
Permissive joinder of parties (Rule 3, Sec. 6)
Persons may join as plaintiffs or may be joined as defendants when there is:
1. Right to relief by or against said persons in respect to or arising out of the SAME
TRANSACTION or series of transactions (connected with the same subject matter
of the suit) and
2. Question of law or fact COMMON to all such plaintiffs or to all such defendants
in the action.
Ex. In a damage suit by heirs of airline passengers who perished
in a plane crash, all the heirs of the dead passengers may join as plaintiffs against the airline
company. There is here a common question of fact and of law, although each has a SEPARATE,
DISTINCT and DIFFERENT CLAIM as to amount from the others.
They cannot file a class suit, where there is only ONE RIGHT OR CAUSE OF ACTION pertaining or
belonging in common to many persons, not separately or severally to distinguish the individual.
What are the effects of non-inclusion of a necessary party? (Rule 3, Sec, 9)
The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed
a WAIVER of the claim against such party.
Said non inclusion does not
a. prevent the court from proceeding in the action, and
b. the judgment rendered therein shall be
c. WITHOUT PREJUDICE to the rights of such necessary party
Third party complaint (Rule 6, Sec. 11)
A third party complaint is a claim that a defending party may, with leave of court, file against a
person NOT A PARTY to the action, called the third (fourth, etc.) party defendant for
a. contribution
b. indemnity
c. subrogation or
d. any other relief in respect of his opponents claim.
> A third party complaint is an action actually independent of, and
separate and distinct from plaintiffs 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
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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 (defendants 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.
1. Venue versus Jurisdiction
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. Venue of real actions (Rule 4, Sec. 1)
Court which has jurisdiction over area where property or any part thereof is located.
Real actions actions affecting title to or possession of real property, or interest therein.
Examples:
a. recovery of possession
b. partition or condemnation
c. foreclosure of mortgage
d. annulment or rescission of sale of real property (actually for
recovery)
Forcible entry and detainer are real actions, regardless of amount of damages involved. N.B. But
venue may be changed and transferred to another place by agreement of the parties, and such
agreement is valid and enforceable (Villanueva vs. Mosqueda, 115 SCRA 904 [1982]).
3. Venue of personal actions (Rule 4, Sec. 2)
Where plaintiff or any of principal plaintiffs reside, or where defendant or any of the principal
defendants resides, or in the case of a non resident defendant, where he may be found, at the
election of the plaintiff.
Meaning of residence ACTUAL RESIDENCE or place of abode, which may not necessarily be his
legal residence or domicile, provided he resides therein with continuity and consistency. Must be
more than temporary.
Personal action where plaintiff seeks the recovery of personal property, enforcement of contract
or recovery of damages.
4. Venue of actions against non-residents (Rule 4, Sec. 3)
What is the venue of actions against nonresident defendant who is not found in the
Philippines?
1. If action affects PERSONAL STATUS of plaintiff, such as a legal personal
relationship which is not temporary nor terminable at the mere will of the parties
(annulment of marriage, recognition of a natural child) venue is the court of place
where PLANTIFF RESIDES.
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While the court acquires jurisdiction over person of defendant, it does not
preclude the court from rendering valid judgment over the issue regarding the
personal status of plaintiff in relation to defendant.
This is an action quasi in rem.
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.
5. When the Rule on Venue Does not Apply (Rule 4, Sec. 4)
1. Where a specific rule or law provides otherwise.
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.
2. Where parties have validly agreed in writing before filing of the action on exclusive venue
thereof.
6. Effects of Stipulations on Venue
Provision that We hereby expressly submit to the jurisdiction of the courts of Valenzuela any legal
action which may arise out of this promissory note is PERMISSIVE stipulation only. It does not
require the laying of venue in Valenzuela exclusively or mandatorily. No qualifying or restrictive
words like must, only or exclusively. Hence no intent by parties to restrict the venue of actions
arising out of the promissory notes to the courts of Valenzuela only (Phil. Banking Corp. vs.
Tensuan, 228 SCRA 385 (1993}
The case at bar involves petitioners mortgaged real property located in Parañaque City over
which respondent bank was granted a special power to foreclose extra judicially. Thus, by
express provision of Section 2, Act 3135, the sale can only be made in Parañaque City.
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The exclusive venue of Makati City, as stipulated by the parties and sanctioned by Section 4,
Rule 4 of the Rules of Court, cannot be made to apply to the Petition for Extrajudicial
Foreclosure filed by respondent bank because the provisions of Rule 4 pertain to venue of
actions, which an extrajudicial foreclosure is not. (Sps. Ochoa vs. ChinaBanking Corporation,
G.R. No. 192877, March 23, 2011)
Complaint for unlawful detainer may be filed outside the municipality or city where the real
property is located, pursuant to the venue stipulation in the contract
Maunlad Homes questioned the venue of Union Banks unlawful detainer action which was filed
in Makati City while the contested property is located in Malolos, Bulacan. Citing Section 1, Rule
4 of the Rules of Court, Maunlad Homes claimed that the unlawful detainer action should have
been filed with the municipal trial court of the municipality or city where the real property
involved is situated. Union Bank, on the other hand, justified the filing of the complaint with the
MeTC of Makati City on the venue stipulation in the contract which states that "the venue of all
suits and actions arising out of or in connection with this Contract to Sell shall be at Makati City.
"
While Section 1, Rule 4 of the Rules of Court states that ejectment actions shall be filed in "the
municipal trial court of the municipality or city wherein the real property involved x x x is
situated," Section 4 of the same Rule provides that the rule shall not apply "where the parties
have validly agreed in writing before the filing of the action on the exclusive venue thereof.
(Union Bank of the Philippines vs. Maunlad Homes Inc., G.R. No. 190071, August 15, 2012)
TO SUMMARIZE:
Waiver of improper venue may be made through:
1. express waiver through written agreement.
2. implied waiver through failure to seasonably object to improper venue in a
motion to dismiss or answer
Improper venue may be questioned through:
1. motion to dismiss (Rule 16, Sec. 1[c])
if denied, file with the higher court a petition for prohibition with prayer for TRO
and preliminary injunction, as lower court has no power to enforce its orders in
said case, the same being outside the territorial jurisdiction of the judge before
whom it was filed.
2. affirmative defense in answer (Rule 16, Sec. 6).
E. Pleadings
1. Kinds of Pleadings (Rule 6)
What is a pleading?
Written statements of the respective CLAIMS and DEFENSES of the parties submitted to the court
for appropriate judgment.
Pleadings allowed under the Rules of Court
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.
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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 the 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. .
b. Answer of a defendant foreign private juridical entity
(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.
c. Answer to Amended Complaint, Amended Counterclaim, Amended Cross Claim and Amended
Third Party (Fourth Party, etc.)
Complaint:
(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.
Strict Observance of the Period
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.
(1) Negative defenses
SPECIFIC DENIAL of the material fact or facts alleged in the pleading or the claimant essential to
his cause of action. (Rule 6, Section 5)
(2) Negative pregnant
A negative pregnant is a form of negative expression which carries with it in affirmation or at
least an implication of some kind favorable to the adverse party. It is a denial pregnant with an
admission of the substantial facts alleged in the pleading. Where a fact is alleged with qualifying
or modifying language and the words of the allegation as so qualified or modified are literally
denied, it has been held that the qualifying circumstances alone are denied while the fact itself
is admitted. (Guevarra vs. Eala, A.C. No. 7136, August 1, 2007)
A negative pregnant (sometimes called a pregnant denial) refers to a denial which implies its
affirmative opposite by seeming to deny only a qualification of the allegation and not the
allegation itself. For example, "I have never consumed shabu while on duty" might imply that the
person making the statement had consumed shabu on other occasions, and was only denying
that he had done so while on duty.
(3) Affirmative Defenses
Allegation of a NEW MATTER which, while hypothetically admitting the material allegations in
the pleading of the claimant, would nevertheless PREVENT OR BAR RECOVERY by him.
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The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute
of frauds, estoppel, former recovery, discharge in bankruptcy, and any other matter by way of
confession and avoidance. (Rule 6, Sec. 5).
Note that some of these grounds are also grounds for motion to dismiss.
What are the two kinds of defenses that may be set forth in the answer?
1. Affirmative defenses allegation of a new matter which while hypothetically
admitting the material allegations in the pleading would nevertheless prevent or
bar recovery by the claiming party. It is in the nature of confession and avoidance
2. Negative defenses specific denial of the material facts or facts alleged in the
pleading essential to establish the plaintiffs cause of action (Rule 6, Sec. 5).
c. Counterclaims
A counterclaim is any claim which a DEFENDING PARTY may have against an opposing party. (Rule
6, Sec. 6)
(1) Compulsory counterclaim
What is a compulsory counterclaim?
(1) One which, being cognizable by the regular courts of justice,
(2) ARISES OUT OF or is CONNECTED WITH the transaction or occurrence
constituting the subject matter of the opposing party’s claim and
(3) does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction.
(4) Such a counterclaim must be within the jurisdiction of the court both as to the
amount and the nature thereof,
(5) except that in an original action before the Regional Trial Court, the
counterclaim may be considered compulsory regardless of the amount (Rule 6,
Sec. 7) , meaning its amount need not be under RTC jurisdiction.
Examples: (1) damages claimed to have been suffered as a consequence of the action; (2) a claim
for attorney’s fees; (3) in a possessory action, the defendants claim of ownership
(2) Permissive counterclaim
What is a permissive counterclaim?
a. One which is not barred even if not set up and which has NO LOGICAL RELATION
with the transaction or occurrence that is the subject matter of the opposing
party’s claim, or
b. even when there is such a connection, the court has no jurisdiction to entertain
the claim or it requires for its adjudication the presence of third persons of whom
the court cannot acquire jurisdiction (National Marketing Corp. vs. Federation of
United Namarco Distributors, Inc., 49 SCRA 248 [1973]).
What is the difference between permissive and compulsory counterclaims?
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.
b. In a compulsory counterclaim, no docket fee is paid and the certificates
mentioned above are not required. If it is not raised in the answer, it shall be
BARRED. (Rule 9, Sec. 2)
Examples of compulsory and permissive counterclaims: . A filed a suit for collection of P350,000
against B in the RTC of Cebu City. 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
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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 RTC has jurisdiction over the compulsory counterclaims in the total amount of P145,000
because in an original action before the RTC, the counterclaim may be considered COMPULSORY
regardless of amount (Rule 6, Sec. 7, 2nd sentence). This means that even a compulsory
counterclaim not exceeding P300,000 or P400,000 may be filed in the RTC.
But the RTC has no jurisdiction over the PERMISSIVE counterclaim of P230,000 because it does
not exceed P300,000.
** In an action for recovery of land, the counterclaim for reimbursement of the value of the
improvements is in the nature of a compulsory counterclaim in . 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 through a reply 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) ,
***(3) Effect on the Counterclaim when the complaint is dismissed
1. If no motion to dismiss has been filed, any of the grounds for dismissal under
Rule 16 may be pleaded as an affirmative defense in the answer, and in the
discretion of the court, a preliminary hearing may be had thereon as if a motion
to dismiss has been filed The dismissal is without prejudice to the right of the
defendant to prosecute his counterclaim in the same or separate action (Rule 16,
Sec. 6). .
2. When the plaintiff himself files a motion to dismiss his complaint after the
defendant has pleaded his answer with a counterclaim. If the court grants the
motion, the dismissal shall be limited to the complaint. It shall be without
prejudice to the right of the defendant to prosecute his counterclaim in a separate
action unless within 15 days from notice of the motion, manifests his preference
to have his counterclaim resolved in the same action(Rule 17, Sec. 2).
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 (Rule 6, Sec. 8)
What is a cross-claim?
a. Any claim by any party against a co party
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2. Whether the third party defendant would be liable to the plaintiff or to the
defendant for all or part of the plaintiffs claim against the original defendant; and
3. Whether the third party defendant may assert any defenses which the third
party plaintiff has or may have to the plaintiffs claim. (Capayas vs. CFI of Albay, 77
Phil 181).
Leave of court is necessary in filing a third (fourth, etc.) party complaint in order to obviate delay
in the resolution of the complaint, such as when the third party defendant cannot be located, or
when unnecessary issues may be introduced, or when a new and separate controversy is
introduced. Leave of court is not required in filing a counterclaim or cross claim because the
parties involved are already parties to the case.
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)
The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any
claim, cross claim, counterclaim, or third party complaint, or of any separate issue or of any
number of claims, cross claims, counterclaims, third party complaints or issues. But a separate
trial may be denied if a party is thereby deprived of his right to be heard upon an issue dealt with
and determined in the main trial. (Metropolitan Bank and Trust Company vs. Sandoval, G.R. No.
169677, February 18, 2013) LPB
f. Complaint-in-intervention
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 intervenor shall file a complaint-in-intervention if he asserts a claim against either or all of
the original parties, or an answer-in-intervention if he unites with the defending party in resisting
a claim against the latter. (Rule 19, Sec. 3)
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 reply, all the new
matters that were alleged in the answer are deemed controverted. (Rule 6, Sec. 10)
Exception:
***1. 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. Where the plaintiff files an action to recover a loan with interest and the
defendant in his answer alleges that the interest charged by the plaintiff in is
usurious, there is no need to file a reply to deny such allegation. It is necessary to
deny allegations of usury only if such allegations are made in a complaint to
recover usurious interest. (Rule 8, Sec. 11)
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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)
b. Prohibited pleadings, motions and petitions
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.
9. Dilatory motions for postponement.
10. Reply.
11. Third party complaints.
12. Interventions (Sec. 14, RPSCC).
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)
b. Prohibited pleadings, motions and petitions
Same as in Small Claims Cases, except that motion to dismiss is allowed on the ground of
lack of jurisdiction over the subject matter, or
failure to comply with barangay conciliation (Sec. 19, RSP).
3. Parts of a pleading (Rule 7)
a. Caption
The Caption contains the following:
1. Name of the court
2. Title of the action
3. Docket number, if assigned (Rule 7, Sec. 1)
The Body sets forth:
1. Designation
2. Allegations of the party’s claims and defenses
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3. Relief prayed for (may add a general prayer for such further or other relief as
may be deemed just and equitable)
4. Date of the pleading (Rule 7, Sec. 2)
b. Signature and address
Rule,7 Sec. 3. Signature and address.
Every pleading must be signed by the party or counsel representing him, stating in either case his
address which should not be a post office box.
The signature of counsel constitutes a CERTIFICATE by him that
(a) he has read the pleading;
(b) to the best of his knowledge, information, and belief there is good ground to
support it; and
(c) it is not interposed for delay.
An unsigned pleading produces NO LEGAL EFFECT. However, the court may, in its discretion,
allow such deficiency to be remedied if it shall appear that the same was due to mere
inadvertence and not intended for delay.
Counsel who (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.
c. Verification and certification against forum shopping
(1) Requirements of a corporation executing the verification/certification of non-forum
shopping
Verification
How is verification made?
It is verified by an affidavit. This affidavit declares that the:
1. Affiant has READ the pleading; and
2. Allegations therein are TRUE AND CORRECT of his PERSONAL KNOWLEDGE or
BASED ON AUTHENTIC RECORDS (Rule 7, Sec. 4)
A pleading required to be verified which contains a verification based on information and belief
or upon knowledge, information and belief, or lacks a proper verification shall be treated as an
UNSIGNED pleading (Rule 7, Sec. 4).
What is the significance of verification?
It is intended to secure an assurance that the allegations in a pleading are true and correct and
not the product of the imagination or a matter of speculation, and that the pleading is filed in
good faith. The absence of a proper verification is cause to treat the pleading as unsigned and
dismissible. (Chua vs. Torres, G.R. No. 151900, August 30, 2005)
Is verification a jurisdictional requirement?
NO. The requirement regarding verification of a pleading is a FORMAL, nor jurisdictional. Such
requirement is simply a condition affecting the form of a pleading, non compliance with which
does not necessarily render the pleading fatally defective (Uy vs. Land Bank of the Phils., 336
SCRA 419 [2000]).
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
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.
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Willful 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)
What are the requirements of forum shopping certificate for a corporation?
The lack of certification against forum shopping is generally not curable by the submission thereof
after the filing of the petition. Section 5 of Rule 45 provides that the failure of the petitioner to
submit the required documents that should accompany the petition, including the certification
against forum shopping, shall be sufficient ground for the dismissal thereof. The same rule applies
to certifications against forum shopping signed by a person on behalf of a corporation which are
unaccompanied by proof that said signatory is authorized to file a petition on behalf of the
corporation. In certain exceptional circumstances, however, the Court has allowed the belated
filing of the certification. (Mediserv, Inc. vs. Court of Appeals (special former 13th division) and
Landheights Development Corporation, G.R. No. 161368, April 5, 2010)
No proof of authority necessary
The following officials or employees of the company can sign the verification and certification
without need of a board resolution: (1) the Chairperson of the Board of Directors, (2) the
President of a corporation, (3) the General Manager or Acting General Manager, (4) Personnel
Officer, and (5) an Employment Specialist in a labor case. In Corazon’s affidavit, she stated that
she is the "office manager and resident interpreter of the Manila Bureau of Fuji Television
Network, Inc. " and that she has "held the position for the last twenty three years. " As the office
manager for 23 years, Corazon can be considered as having knowledge of all matters in Fuji’s
Manila Bureau Office and is in a position to verify "the truthfulness and the correctness of the
allegations in the Petition. " Thus, Fuji substantially complied with the requirements of
verification and certification against forum shopping. (Fuji Television Network, Inc. vs. Espiritu,
G.R. No. 204944 45, December 3, 2014)
d. Effect of the signature of counsel in a pleading
The signature of counsel constitutes a certificate by him that he has read the pleading; that to
the best of his knowledge, information, and belief there is good ground to support it; and that it
is not interposed for delay. (par. 2, Rule,7 Sec. 3.)
4. Allegations in a pleading (Rule 8)
a. Manner of making allegations
Rule 8, Sec. 1. In general. Every pleading shall contain in a methodical and logical form, a plain,
concise and direct statement of the ULTIMATE FACTS on which the party pleading relies for his
claim or defense, as the case may be, omitting the statement of mere evidentiary facts.
(1) Condition precedent
In any pleading a general averment of the performance or occurrence of all
conditions precedent shall be sufficient. (Rule 8, Sec. 3.)
(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.
b. Pleading an actionable document
Rule, 8, Sec. 7. Action or defense based on document.
Whenever an action or defense is based upon a written instrument or document, the actionable
document shall be pleaded by setting forth:
1. The substance of such document in the pleading and attaching the original or
copy thereof as an exhibit
2. Said document copied verbatim in the pleading (Sec. 7, Rule 8).
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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.
(1) Effect of failure to make specific denials
Rule 8, Sec. 11. Allegations not specifically denied deemed admitted.
Material averments in the complaint, other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically denied. Allegations of usury in a
complaint to recover usurious interest are deemed admitted if not denied under oath.
N.B. If the allegations are deemed admitted, there is no more triable issue between the parties
and if the admissions appear in the answer of the defendant, the plaintiff may file a motion for
judgment on the pleadings under Rule 34
(2) When a specific denial requires an oath
Rule 8, Sec. 8. How to contest such documents.
When an action or defense is founded upon a written instrument (like a promissory note which
is the basis of a complaint for collection of sum of money) , copied in or attached to the
corresponding pleading as provided in the preceding section, the GENUINENESS AND DUE
EXECUTION of the instrument shall be deemed admitted unless the adverse party, under oath,
specifically denies them, and sets forth what he claims to be the facts;
but the requirement of an oath does not apply (a) when the adverse party does not appear to be
a party to the instrument or (b) when compliance with an order for an inspection of the original
instrument is refused.
5. Effect of failure to plead (Rule 9)
1. Failure to plead defenses and objections (implied admissions)
Defenses not pleaded in a motion to dismiss or in the answer are deemed WAIVED.
Exceptions:
These defenses may be raised at any stage of the proceedings even for the first time on appeal:
1. Lack of jurisdiction over the subject matter (Note: This may, however, be barred
by laches Tijam v. Sibonghanoy, G.R. No. L 21450, April 15, 1968)
2. Litis pendentia
3. Res judicata
4. Prescription (LLRP) (Rule 9, Sec. 1) Relate to omnibus motion rule (Rule 15, Sec.
8)
Laches need not be specifically pleaded and may be considered by the court on its own initiative
in determining the rights of the parties. (Heirs of Valientes v. Ramas, G.R. No. 157852; December
15, 2010)
2. Failure to plead a compulsory counterclaim and cross-claim
Rule 9, Sec. 2. Compulsory counterclaim, or cross claim, not set up barred.
A compulsory counterclaim, or a cross claim, not set up shall be barred.
6. Default (Rule 9, Sec. 3)
a. When a declaration of default is proper
What are the grounds for the declaration of default?
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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) Willful 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 defendants 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])
b. Effect of an order of default
a. A party in default LOSES HIS STANDING in court. He cannot appear therein,
adduce evidence and be heard nor take part in trial. He cannot file a motion to
dismiss without first filing a motion to set aside the order of default. He loses his
right to present evidence, control the proceedings and examine the witnesses or
object to plaintiffs evidence.
b. A motion to declare the defending party in default should be served upon him.
A party in default, however, shall be entitled to NOTICE of subsequent proceedings
but not to take part in the trial.
c. Being declared in default does not constitute a waiver of all rights. What is
waived is only the RIGHT TO BE HEARD and to PRESENT EVIDENCE during trial
while default prevails. A party in default is still entitled to notice of final judgments
and orders and proceedings taken subsequent thereto. He may be cited and
testify as a witness.
d. A party VALIDLY declared in default irreparably loses the right to participate in
the trial. A defendant IMPROVIDENTLY declared in default may retain and exercise
such right to participate in the trial after the order of default and the subsequent
judgment by default are annulled and the case remanded to the court of origin.
The former can only appeal. The latter may file a petition for certiorari (Indiana
Aerospace University vs. CHED, supra).
c. Relief from an order of default
Summary of the Remedies in Default
a. From notice of the order of default but BEFORE JUDGMENT
(1) motion to set aside order of default under Rule 9, Sec. 3(b)
(2) in a proper case, petition for certiorari under Rule 65.
b. AFTER JUDGMENT BUT BEFORE FINALITY
(1) motion for reconsideration under Rule 37, Section 1
(2) motion for new trial under Rule 37, Section 1
(3) appeal under Rule 41, Section 1
c. AFTER FINALITY OF JUDGMENT
(1) petition for certiorari under Rule 65
(2) petition for relief from judgment under Rule 38
(3) petition for annulment of judgment under Rule 47.
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1. Answer to amended
complaint (NOT a matter of
1. Answer to the complaint. right)
Answer of a defendant 2. Answer to amended 2. Answer to counterclaim or
foreign private juridical complaint (matter of right) cross claim
entity. 3. Answer to third (fourth, 3. Answer to supplemental
etc.) party complaint. complaint.
4. Reply.
Answer to amended complaint (matter of within fifteen (l5) days after being served with a
right) copy thereof
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court may allow the pleadings to be amended and shall do so with liberality if the (a) presentation
of the MERITS of the action and the (b) ends of SUBSTANTIAL JUSTICE will be subserved thereby.
The court may grant a continuance to enable the amendment to be made.
Amendments to Conform to or Authorize Presentation of Evidence
When issues not raised by the pleadings are tried with the express or implied consent of the
parties
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.
e. Different from supplemental pleadings
Rule 10, Section 1. Amendments in general.
Pleadings may be amended by (a) adding or striking out an allegation or the name of any party,
or by (b) correcting a mistake in the name of a party or a mistaken or inadequate allegation or
description in any other respect, so that the actual merits of the controversy may speedily be
determined, without regard to technicalities, and in the most expeditious and inexpensive
manner.
Rule 10, Sec. 6. Supplemental pleadings.
Upon motion of a party the court may, upon reasonable notice and upon such terms as are just,
permit him to serve a supplemental pleading setting forth transactions, occurrences or events
which have happened since the date of the pleading sought to be supplemented. The adverse
party may plead thereto within ten (10) days from notice of the order admitting the supplemental
pleading.
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. Effect of amended pleading
Rule 10, Sec. 8. Effect of amended pleadings.
An amended pleading SUPERSEDES the pleading that it amends. However, admissions in
superseded pleadings may be received in evidence against the pleader; and claims or defenses
alleged therein not incorporated in the amended pleading shall be deemed waived.
What happens to the admissions in the original pleading?
They cease to be judicial admissions. Thus, they are to be considered as extrajudicial admissions
and may be proved by the party relying thereon by formal offer in evidence of such original
pleading. (Ching vs. CA, G.R. No. 110844, April 27, 2000)
F. Summons (Rule 14)
1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
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Contents. The summons shall be directed to the defendant, signed by the clerk of court under
seal, and contain:
(a) the name of the court and the names of the parties to the action;
(b) a direction that the defendant answer within the time fixed by these Rules;
(c) a notice that unless the defendant so answers, plaintiff will take judgment by
default and may be granted the relief applied for.
A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached
to the original and each copy of the summons. (Rule 14, Sec. 2)
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.
NON-SERVICE OR IRREGULAR SERVICE OF SUMMONS may be a ground for dismissal for lack of
jurisdiction over the person of the defending party.
What is the effect of lack of summons?
The trial court does not acquire jurisdiction and renders NULL AND VOID all subsequent
proceedings and issuances in the actions from the order of default up to and including the
judgment by default and the order of execution.
However, lack of summons may be WAIVED as when the defendant fails to make any seasonable
objection to the courts lack of jurisdiction over the person of the defendant.
Summons May be Served ONLY by
1. Sheriff;
2. Sheriffs deputy; or
3. Other proper court officers; or
4. For justifiable reasons, by any suitable person authorized by the court issuing
the summons (Rule 14, Sec. 3)
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.
Voluntary appearance cures the defect in the service of summons.
Exc.: Special appearance in court to challenge its jurisdiction over the person of the defendant
and the inclusion in a motion to dismiss of other grounds shall not be deemed a voluntary
appearance (La Naval Drug Corp. vs. CA, G.R. No. 103200, August 31, 1994).
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.
What are the purposes of summons?
1. Actions in personam
a. To acquire jurisdiction over the person of the defendant; and
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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.
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 defendants RESIDENCE with some
person of suitable age and discretion then residing therein, or
2) by leaving the copies at the defendants 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 to be justified, the following circumstances must be clearly established:
(a) personal service of summons within a reasonable time was impossible; (b) efforts were
exerted to locate the party; and (c) the summons was served upon a person of sufficient age and
discretion residing at the party’s residence or upon a competent person in charge of the party’s
office or place of business. Failure to do so would invalidate all subsequent proceedings on
jurisdictional grounds (Robinson vs. Miralles, G.R. No. 163584, December 12, 2006)
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)
To warrant the substituted service of the summons and copy of the complaint, the serving officer
must first attempt to effect the same upon the defendant in person. Only after the attempt at
personal service has become futile or impossible within a reasonable time may the officer
resort to substituted service. Petitioners insistence on personal service by the serving officer was
demonstrably superfluous. They had actually received the summonses served through their
substitutes, as borne out by their filing of several pleadings in the RTC, including an answer with
compulsory counterclaim ad cautelam and a pre trial brief ad cautelam. They had also availed
themselves of the modes of discovery available under the Rules of Court. Such acts evinced their
voluntary appearance in the action. (Macasaet vs. Co, G.R. No. 156759, June 05, 2013) LPB
Defendants 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 sheriffs 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
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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.)
5. Constructive service (by publication)
a. Service upon a defendant where his identity is unknown or where his whereabouts are
unknown
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.
b. Service upon residents temporarily outside the Philippines
Rule 14, Sec. 16. Residents temporarily out of the Philippines.
When any action is commenced against a defendant who ordinarily resides within the Philippines,
but who is temporarily out of it, service may, by leave of court, be also effected out of the
Philippines, as under the preceding section.
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.
In addition, EXTRATERRITORIAL service [by personal service effected out of the Philippines OR by
publication in a newspaper of general circulation in such places and for such time as the court
may order] MAY be resorted to WITH LEAVE OF COURT.
6. Extra-territorial service, when allowed
Rule 14, Sec. 15. Extraterritorial service.
Extraterritorial service of summons is allowed where the action is against a NON RESIDENT
DEFENDANT who is NOT FOUND in the Philippines and the action:
1) affects the personal status of plaintiffs;
2) relates to or subject of which is property in the Philippines (real or personal) ,
in which the defendant has claim, lien or interest, actual or contingent; or
3) in which relief demanded consists wholly, or in part, in excluding the defendant
from any interest therein; or
4) property of defendant has been attached within the Philippines
A filed a complaint to collect a loan from B, who is a resident of Singapore. May extraterritorial
service of summons be effected?
No, since the action is in personam. However, if A attaches property of B in the Philippines, the
attachment would convert As action into one quasi in rem. Extraterritorial service may then be
effected.
To be effective, extraterritorial service of summons must be with LEAVE OF COURT and only
through any of the following means:
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1. Personal service;
2. By publication (and copy of the summons and order of the court must be sent
by registered mail to the last known address) ;
3. Any other manner which the court may deem sufficient. (Rule 14, Sec. 15).
*** May summons be validly served by telefax or email?
Yes. Extraterritorial service may be in any other manner the court may deem sufficient.
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. .
c. Substituted service or extraterritorial service of summons by leave of court on
a resident defendant who is temporarily outside of the Philippines is valid. (Rule
14, Sec. 16).
NOTE:
a. Extraterritorial service of summons is proper only in actions in rem or quasi-in-rem. this is so
because in in rem and quasi in rem actions, jurisdiction over the person of the defendant is not a
pre requisite to confer jurisdiction on the court provided that the court acquires jurisdiction over
the res.
In rem action against the thing itself instead of against the person
Quasi in rem individual is named as defendant since the purpose of the proceeding is to subject
his interest therein to the obligation or loan burdening the property.
b. Any relief granted in in rem or quasi in rem actions must be confined to the res, and the court
cannot lawfully render a personal judgment against the defendant.
c. Where the action is in personam, such as where the plaintiff seeks to recover damages for the
alleged commission of an injury to the person or property of the plaintiff, personal, or if not
possible, substituted service of summons, and NOT EXTRATERRITORIAL SERVICE, is necessary to
confer jurisdiction upon the person of defendant (Banco do Brasil vs. CA, June 16, 2000).
Extraterritorial Service only applies to action in rem or quasi in rem, but not if an action is in
personam. The complaint to declare the loan and Hedging Contracts between the parties void
with a prayer for damages is an action in personam. Therefore Section 15 is inapplicable.
However, the Court ruled that the petitioner, by seeking affirmative reliefs from the trial court,
is deemed to have voluntarily submitted to the jurisdiction of the said court. A party cannot
invoke the jurisdiction of a court to secure affirmative relief against his opponent and after
obtaining or failing to obtain such relied, repudiate or question that same jurisdiction. (NM
Rothschild & Sons (Australia) Limited v. Lepanto Consolidated Mining Company, G.R. No.
175799, November 28, 2011)
Can summons be served by mail?
NO. It cannot be served by mail but it can be done as a complementary to service of summons
by publication, but it does not mean that service by registered mail alone would suffice.
(Regalado, Remedial Law Compendium, Vol. I, p. 242, 2005 ed)
7. Service upon prisoners and minors
Rule 14, Sec. 9. Service upon prisoners.
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When the defendant is a prisoner confined in a jail or institution, service shall be effected upon
him by the officer having the management of such jail or institution who is deemed deputized as
a special sheriff for said purpose.
Rule 14, Sec. 10. Service upon minors and incompetents.
When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon
him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem
whose appointment shall be applied for by the plaintiff. In the case of a minor, service may also
be made on his father or mother.
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.
Service on domestic private juridical entity
Service may be made on the:
a. president
b. managing partner
c. general manager
d. corporate secretary
e. treasurer, or
f. in-house counsel.
Service on an agent of the corporation is not permitted. The designation of persons or officers
who are authorized to accept summons for a domestic corporation is limited and more clearly
specified. The rule states general manager instead of only manager, corporate secretary instead
of secretary and treasurer instead of cashier.
Service of summons upon the Branch Manager of petitioner at its branch office in Cagayan de
Oro City instead of upon the general manager at its principal office in Davao City is improper.
Consequently, the trial court did not acquire jurisdiction over the person of the petitioner. Any
proceeding undertaken by the trial court will consequently be null and void (E. B. Villarosa &
Partner Co., Ltd. vs. Benito, 312 SCRA 65 [1999]).
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
service on the defendants staff member, Romel Dolahoy. Substituted service was resorted to on
the servers 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:
a) By personal service coursed through the appropriate court in the foreign
country with the assistance of the Department of Foreign Affairs;
b) By publication once in a newspaper of general circulation in the country where
the defendant may be found and by serving a copy of the summons and the court
order by registered mail at the last known address of the defendant;
c) By facsimile or any recognized electronic means that could generate proof of
service; or
d) By such other means as the court may in its discretion direct. (As amended by
A.M. No. 11 3 6 SC, March 15, 2011)
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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.
Rule 14, Sec. 13. Service upon public corporations. When the defendant is the Republic of the
Philippines service may be effected on the Solicitor General.
When the defendant is the Republic of the Philippines, service may be effected on the Solicitor
General. The DPWH and its regional office are merely agents of the Republic which is the real
party in interest. Hence, the summons should have been directed to the Republic through the
OSG. Since the lower court was not able to send summons to the OSG, it was not able to acquire
jurisdiction over the Republic. Therefore, the proceedings before the trial court and its decision
are hereby declared void. (Republic of the Philippines v. Alberto A. Domingo, G.R. No. 175299;
September 14, 2011)
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.
Rule 14, Sec. 19. Proof of service by publication.
If the service has been made by publication, service may be proved by the affidavit of the printer,
his foreman or principal clerk, or of the editor, business or advertising manager, to which affidavit
a copy of the publication shall be attached, and by an affidavit showing the deposit of a copy of
the summons and order for publication in the post office, postage prepaid, directed to the
defendant by registered mail to his last known address.
G. Motions (Rule 15)
1. Motions in general
a. Definition of a motion
Rule 15, Section 1. Motion defined.
A motion is an application for relief other than by a pleading.
b. Motions versus pleadings
Rule 6, Section 1. Pleadings defined.
Pleadings are the written statements of the respective claims and defenses of the
parties submitted to the court for appropriate judgment.
c. Contents and form of motions
Rule 15, Sec. 2. Motions must be in writing.
All motions shall be in writing except those made in open court or in the course
of a hearing or trial.
Rule 15, Sec. 3. Contents.
A motion shall state the (a) relief sought to be obtained and the (b) grounds upon
which it is based, and if required by these Rules or necessary to prove facts alleged
therein, shall be accompanied by supporting affidavits and other papers.
d. Notice of hearing and hearing of motions - HNP
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registered mail) of the existence of said pleading. (Dumaguete v. Philippine Ports Authority, G.R.
No. 168973; August 24, 2011)
2. Motion for Bill of Particulars (Rule 12)
Options available to the defendant upon receipt of the complaint
1. Filing of a motion for bill of particulars
2. Filing of a motion to dismiss
3. Filing of an answer to the complaint
a. Purpose and when applied for What is the purpose of a bill of particulars?
Its purpose is to aid in the preparation of a responsive pleading. An action cannot be dismissed
on the ground that the complaint is vague or indefinite (Galeon v. Galeon, G.R. No. L 30380, Feb.
28, 1973).
It is a motion which seeks to clarify matters in the complaint which are vague, ambiguous, or not
averred with sufficient definiteness.
It applies to ANY PLEADING which in the perception of the movant contains ambiguous
allegations.
What is the nature of and procedure for a bill of particulars?
a. When filed. Before responding to a pleading. If the pleading is a reply, the
motion must be filed within ten (10) days from service.
b. Grounds. A party may move for a definite statement or for a bill of particulars
of any matter which is not averred with sufficient definiteness or particularly to
enable him properly to prepare his responsive pleading.
The motion shall point out
1. The defects complained of;
2. The paragraphs wherein they are contained;
3. The details desired. (Rule 12, Sec. 1)
The motion must comply with the requirements for motions under Rule 15. Otherwise, it shall be
treated as a pro forma motion which shall not stop the running of the period for filing the
requisite pleading
b. Actions of the court
(1) Grant the motion, or
(2) Deny it outright, or
(3) Hold a hearing therein. (Rule 12, Sec. 2)
c. Compliance with the order and effect of noncompliance
Rule 12, Sec. 3. Compliance with order.
If the motion is GRANTED, either in whole or in part, the compliance therewith must be effected
within ten (l0) days from notice of the order, unless a different period is fixed by the court.
The bill of particulars or a more definite statement ordered by the court may be filed either in a
separate or in an amended pleading, serving a copy thereof on the adverse party
What is the effect of non-compliance with order for bill of particulars?
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)
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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:
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]
Discussion of individual grounds
The court has no jurisdiction over the person of the defending party
The court has no jurisdiction over the subject matter of the claim.
The venue Is Improperly laid.
a. Venue of an action depends upon the:
(1) nature of the action
(2) residence of the parties
(3) stipulation of the parties
(4) law
b. Test to determine nature of action
The nature of the action is determined from the allegations of the complaint, the character of
the relief, its purpose and prime objective. When the prime objective is to recover real property,
it is a real action.
Plaintiff Has No Legal Capacity To Sue
a. Legal capacity to sue means that a party is not suffering from any disability such
as minority, insanity, covertures, lack of juridical personality, incompetence, civil
interdiction or does not have the character or representation which he claims or
with respect to foreign corporation, that it is doing business in the Philippines with
a license.
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 plaintiffs capacity to sue being an
essential element must be affirmatively pleaded. The qualifying circumstance is
an essential part of the element of the plaintiffs 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.
Pendency Of Another Action Between The Same Parties
For The Same Cause (Litis Pendentia)
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.
b. Requisites of Litis Pendentia:
(1) Identity of parties, or at least such as representing the same
interest in both actions;
(2) Identity of rights asserted and prayed for, the relief being
founded on the same facts; and
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b. Even if the defense of prescription has not been raised in a motion to dismiss
or an answer, if the plaintiffs 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.
The Claim States No Cause of Action
a. Elements of a Cause of Action
(1) a RIGHT in favor of the plaintiff by whatever means and under whatever law it
arises or is created;
(2) an OBLIGATION on the part of the named defendant to respect or not to violate
such right; and
(3) an ACT OR OMISSION on the part of such defendant violative of the right of the
plaintiff or constituting a breach of the obligation of the defendant to the plaintiff
for which the latter may maintain an action for recovery of damages.
b. General rule: a motion to dismiss for failure to state a cause of action HYPOTHETICALLY ADMITS
the material allegations of the complaint.
Exceptions:
(1) allegations of which the court will take judicial notice are not true
(2) legally impossible facts
(3) facts inadmissible in evidence
(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 trial court may elect to hold a preliminary hearing on affirmative defenses as raised in the
answer under Section 6 of Rules 16 of the Rules of Court. Such a hearing is not necessary when
the affirmative defense is failure to state a cause of action, and that it is, in fact, error for the
court to hold a preliminary hearing to determine the existence of external facts outside the
complaint. The reception and the consideration of evidence on the ground that the complaint
fails to state a cause of action, has been held to be improper and impermissible. Thus, in a
preliminary hearing on a motion to dismiss or on the affirmative defenses raised in an answer,
the parties are allowed to present evidence except when the motion is based on the ground of
insufficiency of the statement of the cause of action which must be determined on the basis
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only of the facts alleged in the complaint and no other. (Aquino vs. Quiazon, G.R. No. 201248,
March 11, 2015)
For the ground to be effective, the insufficiency of the complaint must appear on the face of
the complaint, and nowhere else. It will be unfair to the plaintiff, indeed, to determine the
sufficiency of his cause of action from facts outside of those pleaded in the complaint. A
complaint should not be dismissed for insufficiency unless it appears to a certainty, from the face
of the complaint, that plaintiff would be entitled to no relief under any state of facts which could
be proved within the facts alleged therein. (Sotto vs. Palicte, G.R. No. 159691, February 17, 2014)
LPB
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
Obligations may also be extinguished by annulment, rescission, fulfillment of a resolutory
condition and prescription.
The Claim is Unenforceable Under the Statute of Frauds
The statute of frauds is governed by Art. 1403 (2) of the Civil Code, which provides that
a. certain contracts therein enumerated, unless IN WRITING and SUBSCRIBED by
the party charged or by his agent,
b. are UNENFORCEABLE and EVIDENCE on the agreement CANNOT BE RECEIVED
without the writing or secondary evidence of its contents.
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]).
b. Resolution of Motion
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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.
2. Dismissal upon motion by plaintiff; effect on existing counterclaim
Rule 17, Sec. 2. Dismissal upon motion of plaintiff.
Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's
instance save upon approval of the court and upon such terms and conditions as the court deems
proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the
plaintiff's motion for dismissal, the dismissal shall be limited to the complaint. The dismissal shall
be without prejudice to the right of the defendant to prosecute his counterclaim in a separate
action unless within fifteen (15) days from notice of the motion he manifests his preference to
have his counterclaim resolved in the same action. Unless otherwise specified in the order, a
dismissal under this paragraph shall be without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court.
3. Dismissal due to the fault of plaintiff
Rule 17, Sec. 3. Dismissal due to fault of plaintiff.
If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his
evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time,
or to comply with these Rules or any order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court's own motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall
have the effect of an ADJUDICATION UPON THE MERITS, unless otherwise declared by the court.
4. Dismissal of counterclaim, cross-claim or third-party complaint
Rule 17, Sec. 4. Dismissal of counterclaim, cross claim, or third party complaint.
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 courts motion upon plaintiffs
FAILURE TO PROSECUTE his claim (Rule 17, Sec. 3).
d. Dismissal as a result of plaintiffs FAILURE TO APPEAR during the pre trial, unless
otherwise ordered by the court (Rule 18, Sec. 5).
What dismissals are WITHOUT prejudice?
a. Dismissal for the first time by plaintiff upon mere NOTICE without order of the
court (Rule 17, Sec. 1).
b. Dismissal by order of the court upon plaintiffs own MOTION (Rule 17, Sec. 2).
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c. Dismissal upon motion of defendant or upon the courts own motion upon
FAILURE TO PROSECUTE by plaintiff and the court SPECIFIES that the same shall
be without prejudice (Rule 17, Sec. 3).
When is an action dismissed for failure to prosecute?
a. If the plaintiff fails to appear at the time of trial;
b. If he fails to prosecute his action for an unreasonable length of time;
c. If he fails to comply with the Rules of Court or any order of the court (Rule 17,
Sec. 3)
NOTE:
Effect of dismissal for failure to prosecute Once a case is dismissed for failure to prosecute, this
has the effect of an ADJUDICATION ON THE MERITS and is understood to be WITH PREJUDICE to
the filing of another action unless otherwise provided for in the order of dismissal (De Knecht vs.
CA, May 20, 1998).
Dismissal for failure to prosecute is an adjudication on the merits. Therefore, such dismissal
should be challenged by APPEAL within the reglementary period. (3A Apparel Corporation vs.
Metropolitan Bank and Trust Co. , G.R. No. 186175, Aug. 25, 2010)
I. Pre-trial (Rule 18)
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). )
2. Nature and purpose
What is the nature of pre-trial?
It is mandatory (Rule 18, Sec. 2).
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
Courts authority is confined to a mere determination of the propriety of rendering a judgment
on the pleadings or a summary judgment
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1. it is set when the plaintiff moves ex parte to set 1. it is ordered by the court and no motion
the case for pre trial. to set the case for pre trial is required
from either the prosecution or the
defense.
2. the motion to set case for pre trial is made after 2. the pre trial is ordered by the court
the last pleading has been served and filed. after arraignment and within 30 days
from the date the court acquires
jurisdiction over the person of the
accused.
3. considers the possibility of an amicable 3. does not include the considering of the
settlement as an important objective. possibility of amicable settlement of
criminal liability as one of its purposes.
4. the agreements and admissions made in the 4. there is a stricter procedure required.
pretrial are not required to be signed by both the All agreements or admissions made or
parties and their counsels. They are to be entered during the pretrial conference
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contained in the record of pre trial and the pre trial shall be reduced in writing and signed by
order. However, A.M. No. 03 1 09 SC dated July 13, both the accused and counsel, otherwise,
2004 now requires the proceedings during the they cannot be used against the accused.
preliminary conference to be recorded in the
Minutes of Preliminary Conference to be signed by
both parties and/or counsel. The rule allows either
the party or his counsel to sign the minutes.
5. the sanction for non appearance in a pre trial 5. the sanction are imposed upon the
are imposed upon the plaintiff and the defendant counsel for the accused or the
in a civil case. prosecutor.
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
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)
7. Alternative Dispute Resolution (ADR) A.M. No. 01-10-5-SC-PHILJA, 0ctober 16, 2001
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 Mediator shall be considered as an officer of the court
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Lawyers may attend the mediation proceedings and shall cooperate with the Mediator towards
the amicable settlement of the dispute
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
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(Rule 19)
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.
1. Requisites for intervention
Requisites For Intervention (Rule 19, Sec. 1)
1. There must be a motion for intervention filed BEFORE rendition of judgment.
2. Movant must show in his motion that
a. he has legal interest in the matter in litigation, in the success of
either of the parties in the action, or against both parties.
b. he is situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court
3. Intervention must not unduly delay or prejudice the adjudication of the rights
of the original parties.
4. Intervenors rights may not be fully protected in a separate proceeding.
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
courts 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.
2. Time to intervene (Rule 19, Sec. 2)
Motion for intervention may only be filed BEFORE judgment is rendered by the trial court.
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)
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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)
Although Rule 19 of the Rules of Court is explicit on the period when a motion to intervene may
be filed. This rule, however, is not inflexible. Interventions have been allowed even beyond the
period prescribed in the Rule, when demanded by the higher interest of justice. Interventions
have also been granted to afford indispensable parties, who have not been impleaded, the right
to be heard even after a decision has been rendered by the trial court, when the petition for
review of the judgment has already been submitted for decision before the Supreme Court, and
even where the assailed order has already become final and executory. (Deogenes O. Rodriguez
vs. Court of Appeals, G.R. No. 184589, June 13, 2013)
3. Remedy from the denial of motion to intervene
The remedy of the aggrieved party is APPEAL The allowance or disallowance of a motion to
intervene is addressed to the sound discretion of the court hearing the case. This discretion, once
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)
Note: Rule 20 (Calendar of Cases) and Rule 22 (Computation of Time)
not included.
K. Subpoena (Rule 21)
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)
Who issues subpoena?
1. The court before whom the witness is required to attend;
2. The court of the place where the deposition is to be taken;
3. The officer or body authorized by law to do so in connection with investigations
conducted by said officer or body; or
4. Any Justice of the SC or of the CA in any case or investigation pending within
the Philippines (Rule 21, Sec. 2)
What are the contents of subpoena?
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 days 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
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attendance. If the subpoena is duces tecum, the reasonable cost of producing the books,
documents or things demanded shall also be tendered.
4. Compelling attendance of witnesses; Contempt
Rule 21, Sec. 8. Compelling attendance.
In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of
the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the
province, or his deputy, to arrest the witness and bring him before the court or officer where his
attendance is required, and the cost of such warrant and seizure of such witness shall be paid by
the witness if the court issuing it shall determine that his failure to answer the subpoena was
willful and without just excuse.
Rule 21, Sec. 9. Contempt.
Failure by any person without adequate cause to obey a subpoena served upon him shall be
deemed a contempt of the court from which the subpoena is issued. If the subpoena was 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 (Rules 23-29)
What are the different modes of discovery?
1. Depositions pending action (Rule 23)
2. Depositions before action or pending appeal (Rule 24)
3. Interrogatories to parties (Rule 25)
4. Admission by adverse party (Rule 26)
5. Production or inspection of documents and things (Rule 27)
6. Physical and mental examination of persons (Rule 28)
What is the purpose of the modes of discovery?
The various modes or instruments of discovery are meant to serve as a (1) device, along with pre
trial under Rule 118, to NARROW and CLARIFY the basic issues between the parties, and (2) device
for ASCERTAINING the facts relative to those issues. Purpose: to enable the parties, consistent
with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before
civil trials and thus prevent that said trials be carried on in the dark.
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. interrogatories 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.
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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.
The deposition may be used for the following purposes:
1. BY ANY PARTY For the purpose of contradicting or impeaching the testimony
of the deponent as witness
2. BY AN ADVERSE PARTY for any purpose - If the deponent is a party or anyone
who was at the time of the deposition was an officer, director, or managing agent
of a public or private corporation, partnership or association which is a party, his
deposition can be used
3. BY ANY PARTY for any purpose If the deponent is a witness, whether or not a
party to the case, if the court finds
a) That the witness is dead; or
b) That the witness resides at a distance more than one hundred
(100) kilometers from the place of trial or hearing, or is out of the
Philippines (UNLESS it appears that his absence was procured by
the party offering the deposition) ; or
c) That the witness is unable to attend or testify because of age,
sickness, infirmity or imprisonment; or
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.
c. When may objections to admissibility be made
Objections may be made at the trial or hearing to receive in evidence any deposition or part
thereof.
Any reason which would require the exclusion of the evidence if the witness where then present
and testifying may be used as a reason for objection. (Rule 23, Sec. 6).
All objections made at the time of the examination to the qualifications of the officer taking the
deposition, manner of taking it, to evidence presented, conduct of any party and any other
objection to the proceedings shall be NOTED by the officer taking the deposition. He has NO
authority to rule on such objections. (Rule 23, Sec. 17)
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,).
d. When may taking of deposition be terminated or its scope limited
1. Upon motion or petition of any party or of the deponent; and
2. Upon showing that the examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass or oppress the deponent or party,
3. The court may order the officer conducting the examination to cease forthwith
from taking the deposition, or may limit the scope and manner of the taking of the
deposition, as provided in Rule 23, Sec. 16. (Rule 23, Sec. 18).
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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 deponents constitutional right. Other grounds, such as bad faith
which unreasonably annoy, embarrass or harass deponent or party may likewise be invoked.
2. Written interrogatories to adverse parties (Rule 25)
Purpose and nature
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)
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)
3. Grounds for objections:
(a) They require the statements of conclusions of law or answers to
hypothetical questions or opinions, or mere hearsay, or matters
not within the personal knowledge of the interrogated party.
(b) Frivolous interrogatories need not be answered.
a. Consequences of refusal to answer
The court, on motion and notice may
1. Strike out all or any part of any pleading of that party; or
2. Dismiss the action or proceeding or any part thereof made if it was the
PLAINTIFF who refused to answer;
3. Enter judgment by default against the defendant, if it was the DEFENDANT who
refused to answer;
4. Order that party who refused to answer to pay reasonable expense incurred by
the other party and attorney’s fees (Rule 29, Section 5)
If a party refuses to answer the WHOLE written interrogatory, Rule 29, Section 5, shall apply.
However, where a party refuses only to answer a PARTICULAR question, Rule 29, Section 3 [c],
shall apply (the main difference being that in Section 3[c], there is no provision on payment of
reasonable expenses/penalty)
b. Effect of failure to serve written interrogatories
General Rule A party not served with written interrogatories may NOT be compelled by the
adverse party to give testimony in open court, or to give a deposition pending appeal.
Exception when allowed by the court for good cause and to prevent a failure of justice.
(Rule 25, Sec. 6)
3. Request for Admission (Rule 26)
Scope
a. Admission of the genuineness of any material and relevant document described
in and exhibited with the request;
b. Admission of the truth of any material and relevant matter of fact set forth in
the request;
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c. A matter of fact not related to any documents may be presented to the other
party for admission or denial. (Rule 26, Sec. 1)
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)
a. Implied admission by adverse party
(1) There is an IMPLIED ADMISSION of each of the matters of which an admission
is requested
(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
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).
b. Consequences of failure to answer request for admission
See above.
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)
d. Effect of failure to file and serve request for admission
The party who fails to request for admission of material and relevant facts which are or ought to
be within the personal knowledge of such party shall NOT be permitted to present evidence on
such facts UNLESS otherwise allowed by the court for good cause shown and to prevent failure
of justice. (Rule 26, Sec. 5).
4. Production or inspection of documents or things(Rule 27)
UPON MOTION for good cause shown, the court may order any party (a) to produce and permit
the inspection and copying of documents, papers, books, accounts, letters, photographs, objects
or tangible things or (b) to permit entry upon designated land or other property in his possession
or control for the purpose of inspecting, measuring, surveying or photographing the property or
designated relevant object or operation therein. (Rule 27, Sec. 1)
This is essentially a mode of discovery limited to the parties to the action. This is to be
differentiated from a subpoena duces tecum which is a means to compel the production of
evidence which may be directed to a person who may or may not be a party to the action.
For a document to be produced
1. It should not be privileged;
2. It should constitute or contain evidence material and relevant to any matter
involved in the action; and
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3. It must be within the party’s possession, custody or control. (Rule 27, Sec. 1)
The production or inspection of documents or things as a mode of discovery sanctioned by the
Rules of Court may be availed of by any party upon a showing of good cause therefor before the
court in which an action is pending. The court may order any party: a) to produce and permit the
inspection and copying or photographing of any designated documents, papers, books, accounts,
letters, photographs, objects or tangible things, which are not privileged; which constitute or
contain evidence material to any matter involved in the action; and which are in his possession,
custody or control; or b) to permit entry upon designated land or other property in his possession
or control for the purpose of inspecting, measuring, surveying, or photographing the property or
any designated relevant object or operation thereon. (Air Philippines Corporation vs. Pennswell,
Inc., G.R. No. 172835, December 13, 2007
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.
5. Physical and mental examination of persons (Rule 28)
When the mental or physical condition of a party is in controversy, the court, UPON MOTION FOR
GOOD CAUSE SHOWN and upon notice to the party to be examined and to all other parties, may
order the party to submit to a physical or mental examination by a physician. (Rule 28, Secs. 1
and 2)
Requisites to obtain an Order for Examination:
1. A motion must be filed for the physical and mental examination;
2. The motion must show good cause for the examination;
3. Notice to the party to be examined and to all other parties;
4. The motion shall specify the time, place, manner, conditions and scope of the
examination and the person or persons by whom it is made.
5. There must be a pending action; and
6 A party’s mental or physical condition is in controversy.
Exs.
a. action involving physical injury
b. blood grouping test
c. annulment of marriage on the ground of impotency
d. guardianship over an incompetent or mentally retarded person
e. probate of a will by one claimed not to be in full possession of his or her mental
capacity
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).
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When his powers are not specified or limited, he shall set forth his findings of fact and conclusions
of law in his report. He shall attach thereto all exhibits, affidavits, depositions, papers and the
transcript, if any, of the testimonial evidence presented before him.
Rule 32, Sec. 10. Notice to parties of the filing of report.
Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed
ten (l0) days within which to signify grounds of objections to the findings of the report, if they so
desire. Objections to the report based upon grounds which were available to the parties during
the proceedings before the commissioner, other than objections to the findings and conclusions
therein set forth, shall not be considered by the court unless they were made before the
commissioner.
Rule 32, Sec. 11. Hearing upon report.
Upon the expiration of the period of ten (l0) days referred to in the preceding section, the report
shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting
the report in whole or in part, or recommitting it with instructions, or requiring the parties to
present further evidence before the commissioner or the court.
N. Demurrer to Evidence (Rue 33)
1. Ground
Rule 33, Section 1. Demurrer to evidence.
After the plaintiff has completed the presentation of his evidence, the defendant may move for
dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.
If his motion is denied, he shall have the right to present evidence.
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.
4. Waiver of right to present evidence
If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to
have waived the right to present evidence.
5. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case
DEMURRER TO EVIDENCE
What is a motion for judgment on demurrer to evidence?
A motion to dismiss filed by the defendant after plaintiff has presented his evidence on the
ground of INSUFFICIENCY OF EVIDENCE.
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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 v. Commission on Elections, G.R. No. 60601,
December 29, 1983, 126 SCRA 472.)
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. [WPSSF]
Memorandum Decision
Incorporation by reference of a decision of a lower court or portion thereof in the decision of a
higher court if only to avoid the cumbersome reproduction of the decision of the lower court.
The memorandum decision authorized under Section 40 of B.P. Blg. 129 should actually embody
the findings of fact and conclusions of law of the lower court in an annex attached to and made
an indispensable part of the decision. (Solid Homes, Inc. vs. Laserna, G.R. No. 166051, April 8,
2008)
3. Judgment on the pleadings (Rule 34)
What is a judgment on the pleadings?
Judgment by the court upon motion of a plaintiff, counterclaimant, cross claimant, or third party
plaintiff, where an answer
a. Fails to enter an issue, or
b. Otherwise admits the material allegations of the complaint, counterclaim,
cross claim or third party claim (Rule 34, Sec. 1).
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)
2. In an action for annulment of judgment on the ground of psychological incapacity, even if the
defendant files an answer ADMITTING all the allegations in the complaint, the 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.)
The trial court may render a judgment on the pleadings upon motion of the claiming party when
the defending party's answer fails to tender an issue, or otherwise admits the material allegations
of the adverse party's pleading. For that purpose, only the pleadings of the parties in the action
are considered. It is error for the trial court to deny the motion for judgment on the pleadings
because the defending party's pleading in another case supposedly tendered an issue of fact.
(Fernando Medical Enterprises, Inc. vs. Wesleyan University Philippines, Inc., G.R. No. 207970,
January 20, 2016) LPB
4. Summary judgments (Rule 35)
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
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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.
What are the bases of summary judgment?
1. Affidavits made on personal knowledge;
2. Depositions of the adverse party or a third party under Rule 23;
3. Admissions of the adverse party under Rule 26; and
4. Answers to interrogatories under Rule 25. All intended to show that:
a. There is no genuine issue as to any material fact, except damages
which must always be proved; and
b. The movant is entitled to a judgment as a matter 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 is that those issues are NOT
GENUINE but sham or fictitious, the court is justified in DISPENSING WITH THE
TRIAL and rendering judgment for plaintiff.
a. for the claimant
Rule 35 Section 1. Summary judgment for claimant.
A party seeking to recover upon a claim, counterclaim, or cross claim or to obtain a declaratory
relief may, at any time after the pleading in answer thereto has been served, move with
supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or
any part thereof.
b. for the defendant
Rule 35, Sec. 2. Summary judgment for defending party.
A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory relief is
sought may, at any time, move with supporting affidavits, depositions or admissions for a
summary judgment in his favor as to all or any part thereof.
c. when the case not fully adjudicated
Rule 35, Sec. 4. Case not fully adjudicated on motion.
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.
d. affidavits and attachments
Rule 35, Sec. 5. Form of affidavits and supporting papers.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Certified true copies of all papers or parts
thereof referred to in the affidavit shall be attached thereto or served therewith. (5a, R34)
Rule 35, Sec. 6. Affidavits in bad faith.
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Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to
this Rule are presented in bad faith, or solely for the purpose of delay, the court shall forthwith
order the offending party or counsel to pay to the other party the amount of the reasonable
expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may,
after hearing, further adjudge the offending party or counsel guilty of contempt.
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 defendants 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). 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)
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).
Mere denials, unaccompanied by any fact which would be admissible in evidence at a hearing,
are not sufficient to raise a genuine issue of fact sufficient to destroy a motion for summary
judgment even though such issue was formally raised by the pleadings. (Warner, Barnes & Co.,
Ltd. v. Luzon Surety Co., Inc., 95 Phil. 924 [1954].)
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.)
5. Judgment on the pleadings versus summary judgments
a. In judgment on the pleadings, the answer either does not tender an issue or
otherwise admits all the allegations in the complaint, while the answer in
summary judgment tenders some issues but these issues are not genuine so they
require no judicial determination.
b. It is the plaintiff, counterclaimant, cross claimant or third party plaintiff who
avails of the remedy of a judgment on the pleadings while summary judgment may
be asked by the claimant or defending party.
c. Judgment on the pleadings is based only on the pleadings while summary
judgment is based not only on the pleadings but also on affidavits, admissions,
depositions and other documents
d. In judgment on the pleadings there is no specific requirement when the notice
shall be served on the opposing party, hence it should be served at least three (3)
days before the date of the hearing which in turn must not be later than ten (10)
days after filing of the motion, while a motion for summary judgment shall be
served at least ten (10) days before the date specified for hearing which in turn
must not be later than ten (10) days after filing of the motion.
6. Rendition of judgments and final orders
Rule 36 Section 1. Rendition of judgments and final orders.
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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. [ WPSSF]
7. Entry of judgments and final orders
Rule 36, Sec. 2. Entry of judgments and final orders.
If no appeal or motion for new trial or reconsideration is filed within the time provided in these
Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries
of judgments. The date of finality of the judgment or final order shall be deemed to be the date
of its entry. The record shall contain the dispositive part of the judgment or final order and shall
be signed by the clerk, with a certificate that such judgment or final order has become final and
executory.
P. Post Judgment Remedies
1. Motion for New Trial or reconsideration (Rule 37)
a. Grounds
What are the grounds for a motion for new trial?
One or more of the following causes affecting the substantial rights of the aggrieved party:
a. Fraud, accident, mistake or excusable negligence (FAME) which ORDINARY
PRUDENCE could not have guarded against and by reason of which such aggrieved
party had probably been IMPAIRED IN HIS RIGHTS; or
b. Newly discovered evidence (NDE) which he could not, with REASONABLE
DILIGENCE, have discovered and produced at the trial, and which if presented
would probably ALTER THE RESULT (Rule 37, Sec. 1).
a. Fraud, accident, mistake, excusable negligence [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 clients 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.)
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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 movants 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).
b. Newly discovered evidence [NDE]
To warrant a new trial, newly discovered evidence
must have been discovered after trial;
could not have been discovered and produced at the trial despite reasonable
diligence;
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].)
Is a second motion for new trial allowed?
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).
What are the grounds for a motion for reconsideration?
a. the damages awarded are excessive;
b. the evidence is insufficient to justify the decision; or
c. the decision is contrary to law (Rule 37, Sec. 1). [DED]
Is a second motion for reconsideration allowed?
NO. A second motion for reconsideration of a judgment or final order is not allowed. (Rule 37,
Sec. 5). However, there may be second motion for reconsideration of an interlocutory order.
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]).
What is a pro forma motion for reconsideration and its effect?
When sufficient in form and substance, a motion for reconsideration satisfies the requirements
of Rule 37 and interrupts the running of the period of appeal.
A motion for reconsideration that does not comply with the requirements will be treated as pro
forma intended merely to delay the proceedings and thus will NOT STAY OR SUSPEND the
reglementary period (Marikina Valley Development Corporation vs. Flojo, 251 SCRA 87 [1995]).
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A pro forma motion for new trial and reconsideration does not toll the reglementary period (Rule
37, Sec. 2, last sentence).
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.
c. Denial of the motion; effect
Rule 37, Sec. 9. Remedy against order denying a motion for new trial or reconsideration.
An order denying a motion for new trial or reconsideration is NOT APPEALABLE, the remedy being
an appeal from the judgment or final order.
d. Grant of the motion; effect
Rule 37, Sec. 6. Effect of granting of motion for new trial.
If a new trial is granted in accordance with the provisions of this Rule, the original judgment or
final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence
taken upon the former trial, in so far as the same is material and competent to establish the
issues, shall be used at the new trial without retaking the same.
Rule 39, Sec.7. Partial new trial or reconsideration.
If the grounds for a motion under this Rule appear to the court to affect the issues as to only a
part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it,
the court may order a new trial or grant reconsideration as to such issues if severable without
interfering with the judgment or final order upon the rest.
Rule 37, Sec. 8. Effect of order for partial new trial.
When less than all of the issues are ordered retried, the court may either enter a judgment or
final order as to the rest, or stay the enforcement of such judgment or final order until after the
new trial.
e. Remedy when motion is denied, Fresh 15-day period rule
Rule 37, Sec. 9. Remedy against order denying a motion for new trial or reconsideration.
An order denying a motion for new trial or reconsideration is not appealable, the remedy being
an appeal from the judgment or final order.
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)
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.
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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.
Remedies against Judgments or Final Orders
Remedies BEFORE finality of judgment
1. Motion for reconsideration
Motion for new trial
2. Appeal
a. Ordinary appeal
Rule 40
Rule 41
b. Petition for review
Rule 42
Rule 43
c. Petition for review on certiorari
Rule 45
Remedies AFTER finality of judgment
1. Petition for certiorari
2. Petition for relief from judgment
3. Petition for annulment of judgment
APPEAL AND REVIEW
Election of proper mode of appeal or review depends on whether or not subject judgment or
order has become final and unappealable.
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)
2. Petition for Review
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)
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February 3, 1998 decision and the October 5, 1999 resolution (Mendiola vs. Court of Appeals,
G.R. No. 159746, July 18, 2012) LPB
3. Rule 41, Section 1, paragraph (a) of the Rules of Court, which provides that "[n]o appeal may
be taken from [a]n order denying a x x x motion for reconsideration," is based on the implied
premise in the same section that the judgment or order does not completely dispose of the case.
The pertinent portion of Rule 41, Section 1 provides:
Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that
completely disposes of the case, or of a particular matter therein when declared by these Rules
to be appealable.
In other words, what Section 1 of Rule 41 prohibits is an appeal taken from an interlocutory
order. An interlocutory order or judgment, unlike a final order or judgment, does "not completely
dispose of the case [because it leaves to the court] something else to be decided upon. Appeals
from interlocutory orders are generally prohibited to prevent delay in the administration of
justice and to prevent "undue burden upon the courts.
Orders denying motions for reconsideration are not always interlocutory orders. A motion for
reconsideration may be considered a final decision, subject to an appeal, if "it puts an end to a
particular matter," leaving the court with nothing else to do but to execute the decision.
"An appeal from an order denying a motion for reconsideration of an order of dismissal of a
complaint is effectively an appeal of the order of dismissal itself. " It is an appeal from a final
decision or order.
The trial courts order denying petitioner Republic of the Philippines motion for reconsideration
of the decision granting respondent Ortigas the authority to sell its property to the government
was not an interlocutory order because it completely disposed of a particular matter. An appeal
from it would not cause delay in the administration of justice.
(Republic vs. Ortigas and Company Limited Partnership, G.R. No.171496, March 3, 2014)
*** The denial of a motion for reconsideration of an order granting the defending party’s motion
to dismiss is not an interlocutory but a final order because it puts an end to the particular matter
involved, or settles definitely the matter therein disposed of, as to leave nothing for the trial
court to do other than to execute the order. Accordingly, the claiming party has a fresh period of
15 days from notice of the denial within which to appeal the denial. The prohibition against
appealing an order denying a motion for reconsideration refers only to a denial of a motion for
reconsideration of an interlocutory order. (Alma Jose vs. Javellana, G.R. No. 158239, January 25,
2012) LPB
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.
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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.
c. Remedy against judgments and orders which are not appealable
In all of the above instances where the judgment or final order is not appealable, the aggrieved
party may file an appropriate special civil action under Rule 65. (Rule 41, Sec. 1.)
Final Judgment Rule; Exceptions
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)
A final judgment cannot be modified anymore.
When a final judgment becomes executory it becomes immutable and unalterable.
The judgment may no longer be modified in any respect, even if the modification is meant to
correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether
the modification is to be made by the court rendering it or by the highest court of the land. Any
amendment or alteration which substantially affects a final and executory judgment is null and
void for lack of jurisdiction, including the entire proceedings held for that purpose (Nunal vs. CA,
221 SCRA 26 [1993]).
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 the parties and the courts 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])
Once a judgment becomes immutable and unalterable by virtue of its finality, its execution
should follow as a matter of course. A supervening event, to be sufficient to stay or stop the
execution, must alter or modify the situation of the parties under the decision as to render the
execution inequitable, impossible, or unfair. The supervening event cannot rest on unproved
or uncertain facts. The contention of petitioners that the sale by Jimmy Flores to them of his 1/4
share in the western portion of the 402 square meter lot under the deed of sale dated March 4,
1998 was a supervening event that rendered the execution inequitable is devoid of merit. (Abrigo
vs. Flores, G.R. No. 160786, June 17, 2013) LPB
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Petitioners claim that their former counsel was guilty of gross negligence for letting the CA
decision lapse into finality by not filing a motion for reconsideration or by not appealing in due
course to the Court. The Court will not override the finality and immutability of a judgment
based only on the negligence of a party’s counsel in timely taking all the proper recourses from
the judgment. To justify an override, the counsels negligence must not only be gross but must
also be shown to have deprived the party the right to due process. (Sofio vs. Valenzuela, G.R. No.
157810, February 15, 2012) LPB
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).
What is a judgment nunc pro tunc?
Literally, it means judgment now for then. One issued by a court as though it was done when it
ought to have been done, as when a judgment rendered some years back which had not been
recorded in the entry of judgment is ordered to be so recorded, so that a writ of execution could
be issued upon motion of the prevailing party within the reglementary period.
It can only be issued when the thing ordered has previously been made, but by inadvertence has
not been entered. It cannot be issued to make material change or amendment in a final decision
What is a supplemental judgment?
A supplemental judgment does not take the place or extinguish the original judgment. It only
serves to bolster or add something to the primary decision. A supplement EXISTS SIDE BY SIDE
with the original. It does not replace that which it supplements
What is an amended judgment?
The lower court makes a study of the original judgment and renders the amended and clarified
judgment only after considering all the factual and legal issues. It is an entirely new decision
which SUPERSEDES the original decision.
What is obiter dictum?
It is an opinion expressed by a court, which is not necessary to the decision of the case before it.
It is neither enforceable as a relief nor a source of a judicially actionable claim.
What is the principle of stare decisis et non quieta movere?
It holds that a point of law, once established by the court, will generally be followed by the same
court and by all courts of lower rank in subsequent cases involving a similar legal issue. This
proceeds from the legal principle that, in the absence of powerful countervailing considerations,
like cases ought to be decided alike.
It is founded on the necessity of securing certainty and stability in the law and does not require
identity of or privity of parties
d. Modes of appeal
(1) Ordinary appeal
ORDINARY APPEAL -- RULES 40 and 41
Rule 40 from MTC to RTC
Rule 41 from RTC to CA
What Rules 40 and 41 have in common
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).
How appeal taken
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review with the Court of Appeals. (Heirs of Rodolfo Crisostomo vs. Rudex International
Development Corporation, G.R. No. 176129, August 24, 2011)
When does the court lose jurisdiction?
Appeal by NOTICE OF APPEAL upon perfection of appeals filed in due time and expiration of time
to appeal of other parties.
Appeal by RECORD ON APPEAL only over subject matter thereof upon approval of records on
appeal filed in due time AND expiration of time to appeal of other parties.
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]
Power to dismiss appeal
Sec. 13, Rule 41. Dismissal of appeal Prior to transmittal of original record or record on appeal to
appellate court, trial court may dismiss the appeal for:
a. Having been taken out of time.
b. Non payment of docket and other lawful fees within reglementary period. .
NOTES:
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]).
Regional trial courts have jurisdiction over complaints for recovery of ownership or accion
reivindicatoria. Section 8, Rule 40 of the Rules on Civil Procedure nonetheless allows the RTC to
decide the case brought on appeal from the MTC which, even without jurisdiction over the
subject matter, may decide the case on the merits. In the instant case, the MTC of Mambajao
should have dismissed the complaint outright for lack of jurisdiction but since it decided the case
on its merits, the RTC rendered a decision based on the findings of the MTC. (Provost vs. CA, G.R.
No. 160406,June 26, 2006).
The RTC should have taken cognizance of the case. If the case is tried on the merits by the
Municipal Court without jurisdiction over the subject matter, the RTC on appeal may no longer
dismiss the case if it has original jurisdiction thereof. Moreover, the RTC shall no longer try the
case on the merits, but shall decide the case on the basis of the evidence presented in the lower
court, without prejudice to the admission of the amended pleadings and additional evidence in
the interest of justice. (Encarnacion vs. Amigo, G.R. No. 169793, September 15, 2006).
(2) Petition for review
PETITION FOR REVIEW RULES 42 and 43
Rule 42 governs petitions for review of decisions of RTC in exercise of appellate jurisdiction over
cases decided by MTC.
Special Agrarian Court decisions (LBP vs. De Leon, 388 SCRA 537; LBP vs. De Leon, 399 SCRA 376).
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Rule 43 petition for review of decisions, final orders, resolutions of quasi judicial agencies such
as CSC, SEC, OP, LRA, SSS, GSIS, NEA, ERC, ECC, CAB, CIAC, BOI, PAEC, etc.
1. DARAB decisions (Valencia vs. CA, 401 SCRA 666) exc. grave abuse of discretion
(Fortich vs. Corona, 289 SCRA 624).
2. Voluntary arbitrators (Sevilla Trading Co. vs. A.V.A. Tomas E. Semana, et al., 428
SCRA 239).
3. Ombudsman resolutions or orders in administrative disciplinary cases
Fabian v. Desierto (295 SCRA 470) Sec. 27, RA 6770 providing appeal direct to SC
from administrative disciplinary cases unconstitutional as no concurrence of SC.
All appeals from decisions of the Ombudsman in administrative disciplinary cases
may be taken to the Court of Appeals under Rule 43 of the 1997 Rules of Civil
Procedure. (Francisco, Jr. vs. Ombudsman, G.R. No. 154117, October 2, 2009
TDC) ; Cortes vs. Office of the Ombudsman (Visayas) , G.R. No. 187896, June 10,
2013)
v However, the decision, resolution or order of the Ombudsman in
an administrative case is final and unappealable: (1) where the
respondent is absolved of the charge; and (2) in case of conviction,
where the penalty imposed is public censure or reprimand,
suspension of not more than one month, or a fine equivalent to
one month salary. The remedy is a petition for certiorari to the
Court of Appeals under Rule 65. (Dagan vs. Office of the
Ombudsman, G.R. No. 184083, November 19, 2013)
Ombudsman resolutions or orders in criminal cases petition for
certiorari to SC under Rule 65 (Sec. 14, 2nd par., RA 6770) ; . De
Chavez vs. Ombudsman, G.R. No. 168830, February 6, 2007;
Lanting vs. Ombudsman, G.R. No. 141426, May 6, 2005; Garcia
Rueda vs. Pascasio, G.R. No. 118141 September 5, 1997).
4. Decisions of the Board of Commissioners of the Bureau of Immigration (Agus
Dwikarna vs. Domingo, 433 SCRA 748)
5. Decisions and final orders of commercial courts under RA 8799 (A.M. No. 04 9
07 SC, Oct. 15, 2004).
***The rule providing that a petition for review under Rule 43 of the Rules of Court is the proper
mode of appeal in intra corporate controversies, as embodied in A. M. No. 04 9 07 SC, has been
in effect since October 15, 2004. Hence, the filing by POTC and PHC (Nieto Group) of the petition
for certiorari on March 21, 2007 (C.A. G.R. SP No. 98399) was inexcusably improper and
ineffectual. By virtue of its being an extraordinary remedy, certiorari could neither replace nor
substitute an adequate remedy in the ordinary course of law, like appeal in due course.
(Philippine Overseas Telecommunications Corporation (POTC) vs. Africa, G.R. No. 184622, July 3,
2013 ) LPB
N.B. Under Rule 6, Sec. 2 of the Financial Rehabilitation Rules of Procedure (2013) , an order
approving or disapproving a rehabilitation plan can only be reviewed through a petition for
certiorari under Rule 65 within 15 days from notice of the decision or order. No motion for
reconsideration required.
5. CIAC decisions (Metro Construction, Inc. vs. Chatham Properties, Inc., 365 SCRA 697 [2001];
Megaworld Globus Asia, Inc. vs. DSM Construction and Development Corp., 424 SCRA 179
[2004]).
Excluded from Rule 43:
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.
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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).
Exhaustion of administrative remedies
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
Distinction between ordinary appeal and petition for review.
Ordinary appeal is a MATTER OF RIGHT
Petition for review is DISCRETIONARY
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
(3) Petition for review on certiorari
PETITION FOR REVIEW ON CERTIORARI UNDER RULE 45
1. How appeal taken and time for filing
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)
c. Proof of service on lower court and adverse party (Id.)
2. Only questions of law may be raised (Sec. 1)
a. Question of law when there is doubt or difference of opinion as to what the law is on a certain
state of facts and which do not call for an examination of the probative value of the evidence
presented by the parties.
Exc. Petitions for review of decisions of RTC, Court of Appeals and Sandiganbayan in petitions for
writs of amparo or habeas data, and of the Court of Appeals in petitions for writ of kalikasan, may
raise questions of fact.
3. Dismissal or denial of petition (Sec. 5)
Dismissal failure of petitioner to comply with requirements of Sec. 4 regarding
payment of docket and other lawful fees
deposit for costs
proof of service of petition
contents of and documents which should accompany petition shall be
SUFFICIENT GROUND for dismissal thereof
Denial on its own initiative or motu proprio, SC may deny petition on ground that appeal
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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)
7. Factual findings of CA binding on SC. 11 Exceptions:
(a) When the findings are grounded entirely on speculation, surmises, or
conjectures;
(b) When the inference made is manifestly mistaken, absurd, or impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the CA went beyond the issues of the case, or its
findings are contrary to the admissions of both the appellant and the appellee;
(g) When the CAs findings are contrary to those by the trial court;
(h) When the findings are conclusions without citation of specific evidence on
which they are based;
(i) When the facts set forth in the petition as well as in the petitioners main and
reply briefs are not disputed by the respondent;
(j) When the findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record; or
(k) When the CA manifestly overlooked certain relevant facts not disputed by the
parties, which, if properly considered, would justify a different conclusion(Abalos
vs. Torio, G.R. No. 175444, December 14, 2011)
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
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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.
e. Issues to be raised on appeal
Errors of judgment committed by a court with jurisdiction over the subject matter and the
persons of the parties.
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.
Effect of Perfection of Appeal
The court which rendered the appealed decision loses its jurisdiction over the case. However,
prior to the transmittal of the original record or record on appeal to the appellate court, it may
still do the following:
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)
Participation of the Solicitor General during appeal
Under Presidential Decree 478, the Solicitor General shall represent the Government in the
Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government
and its officers in the Supreme Court, the Court of Appeals, and all other courts or tribunals in all
civil actions and special proceedings in which the Government or any officer thereof in his official
capacity is a party.
h. Appeal from judgments or final orders of the MTC
Rule 40
i. Appeal from judgments or final orders of the RTC
Rule 41
j. Appeal from judgments or final orders of the CA
Rule 45
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Supreme Court
Rule 56
SECTION 5. Grounds for dismissal of appeal. The appeal may be dismissed motu proprio or on
motion of the respondent on the following grounds:
(a) Failure to take the appeal within the reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other lawful fees or to make a
deposit for costs;
(d) Failure to comply with the requirements regarding proof of service and
contents of and the documents which should accompany the petition;
(e) Failure to comply with any circular, directive or order of the Supreme Court
without justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the Supreme Court.
SECTION 6. Disposition of improper appeal. Except as provided in section 3, Rule 122 regarding
appeals in criminal cases where the penalty imposed is death, reclusion perpetua or life
imprisonment, an appeal taken to the Supreme Court by notice of appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court from the Regional Trial court submitting
issues of fact may be referred to the Court of Appeals for decisions or appropriate action. The
determination of the Supreme Court on whether or not issues of fact are involved shall be final.
Withdrawal of Appeal
Court of Appeals
Rule 50
SECTION 3. Withdrawal of appeal. An appeal may be withdrawn as of right at any time before
the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of
the court.
Reinstatement of Appeal
Petitioners' appeal should be reinstated in consonance with the dictates of justice and fair play.
An appeal may be reinstated, even after the remand of the record to the trial court, where it
appears that the dismissal of the appeal was made under the erroneous impression that the
appellants had abandoned their appeal (Balajadia vs. Pineda, G.R. No. L 45335 January 31, 1978)
*** Dual Function of Appellate Courts
An appellate court serves a dual function. The first is the review for correctness function,
whereby the case is reviewed on appeal to assure that substantial justice has been done. The
second is the institutional function, which refers to the progressive development of the law for
general application in the judicial system. The review for correctness function is concerned with
the justice of the particular case while the institutional function is concerned with the articulation
and application of constitutional principles, the authoritative interpretation of statutes, and the
formulation of policy within the proper sphere of the judicial function. (Re: Letter Complaint Of
Merlita B. Fabiana Against Presiding Justice Andres B. Reyes, Jr., Associate Justices Isaias P.
Dicdican And Stephen C. Cruz, A.M. No. CA 13 51 J, July 2, 2013) LPB
Harmless Error Rule in Appellate Decisions
Rule 51, Section 6. Harmless error. No error in either the admission or the exclusion of evidence
and no error or defect in any ruling or order or in anything done or omitted by the trial court or
by any of the parties is ground for granting a new trial or for setting aside, modifying, or otherwise
disturbing a judgment or order, unless refusal to take such action appears to the court
inconsistent with substantial justice. The court at every stage of the proceeding must disregard
any error or defect which does not affect the substantial rights of the parties.
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If there was an error committed by the RTC in ascribing to the petitioner the respondents
testimony as adverse witness during cross examination by his own counsel, it constitutes a
harmless error which would not, in any way, change the result of the case. In the first place, the
delineation of a piece of evidence as part of the evidence of one party or the other is only
significant in determining whether the party on whose shoulders lies the burden of proof was
able to meet the quantum of evidence needed to discharge the burden. In civil cases, that burden
devolves upon the plaintiff who must establish her case by preponderance of evidence. (Chua
Gaw vs. Suy Ben Chua,G.R. No. 160855, April 16, 2008)
3. Relief from judgments, orders and other proceedings
a. Grounds for availing of the remedy
RELIEF FROM JUDGMENT RULE 38
Special remedy of equitable character, allowed only in exceptional cases, as when there is no
other available or adequate remedy.
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.
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
What is extrinsic fraud?
Fraudulent scheme executed by a prevailing party litigant outside the trial against the defeated
party, his agents or attorneys or witnesses defeated party prevented from exhibiting fully his side
of the case by fraud or deception practiced on him by his opponent. Examples:
keeping him away from court
false promise of compromise
being kept ignorant of the case
where his attorney fraudulently connives at his defeat
b. presence of good and substantial cause of action or defense, as the case may be.
* affidavit of merit must accompany petition showing:
facts constituting fraud, accident, mistake or excusable negligence relied upon,
and
facts constituting petitioners good and substantial cause of action or defense.
serves as jurisdictional basis for the court to entertain the petition. Exception may not be
necessary
(a) where decision is null and void for want of jurisdiction,
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(b) where a default judgment was entered even before petitioners time to answer
had expired, or
(c) where applicant had no notice of the trial, etc.
b. Time to file petition
Time for filing
(a) within 60 days after learns of judgment, order or other proceeding to be set
aside, and
(b) not more than 6 months after judgment or order entered, or such proceeding
taken.
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.
Periods are non extendible and never interrupted.
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
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.
4. Annulment of Judgments or final orders and resolutions
a. Grounds for annulment
ANNULMENT OF JUDGMENT RULE 47
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.
Grounds and period for filing:
(1) Extrinsic fraud aggrieved party must show that he failed to avail of new trial, appeal, petition
for relief or other appropriate remedy due to extrinsic fraud done against him.
a. Fraud must be committed by adverse party
Refers to acts outside the trial.
prevents a party from having a trial, or a real contest, or from
presenting all of his case in court
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year period where the defeated party caused the delay in the execution of the judgment or by
independent action within 5 years after said 5 year period (David vs. Ejercito, 71 SCRA 484
[1976]).
1. Difference between finality of judgment for purposes of appeal; for purposes of execution
If the judgment does not order the doing of something or the payment of money, there is nothing
in the judgment which needs to be enforced or executed. Exs. (a) judgment dismissing a case
without pronouncement as to damages and costs; (b) judgment in an injunction case which
orders the defendant not to do an act; (c) judgment declaring a contract null and void.
If the appeal period has lapsed, the judgment becomes final and unappealable, not final and
executory.
2. When execution shall issue
a. Execution as a matter of right
Requisites
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.
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
1. Motion for execution filed by the prevailing party;
2. Notice of said motion to adverse party;
3. Good reasons stated in a special order after hearing.
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
execution 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 to 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])
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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).
What is the remedy against improvident issuance of execution?
CERTIORARI lies against an order granting execution pending appeal when it is not founded on
good reasons. Appeal is not a speedy and adequate remedy that can relieve the losing party of
the immediate effects of an improvident execution pending appeal (BF Corp. vs. EDSA Shangri La
Hotel and Resort, Inc., supra).
How shall the writ of execution be returned?
a. If the writ is satisfied The writ of execution shall be returnable to the court
issuing it immediately after the judgment has been satisfied in part or in full.
b. If the writ is not satisfied If the judgment cannot be satisfied in full within 30
days after issuance of the writ, the officer shall report to the court and state the
reasons therefor (Rule 39, Sec. 14).
b. Issuance and contents of a writ of execution (Rule 39, Sec. 8)
The writ of execution is issued in the name of the Philippines and shall state:
1. The name of the court which granted the motion;
2. The case number;
3. The dispositive portion of the judgment or order subject of the execution; and
4. Shall require the sheriff or other proper officer to whom it is directed to enforce
the writ according to its terms, in the manner hereinafter provided:
a) If the execution be against the property of the judgment
obligor, to satisfy the judgment, with interest, out of the real or
personal property of such judgment obligor;
b) If it be against real or personal property in the hands of personal
representatives, heirs, devisees, legatees, tenants, or trustees of
the judgment obligor, to satisfy the judgment, with interest, out of
such property;
c) If it be for the sale of real or personal property, to sell such
property, describing it, and apply the proceeds in conformity with
the judgment, the material parts of which shall be recited in the
writ of execution;
d) If it be for the delivery of the possession of real or personal
property, to deliver the possession of the same, describing it, to
the party entitled thereto, and to satisfy any costs, damages, rents,
or profits covered by the judgment out of the personal property of
the person against whom it was rendered, and if sufficient personal
property cannot be found, then out of the real property; and
e) In all cases, the writ of execution shall specifically state the
amount of the interest, costs, damages, rents, or profits due as of
the date of the issuance of the writ, aside from the principal
obligation under the judgment. For this purpose, the motion for
execution shall specify the amounts of the foregoing reliefs sought
by the movants
What are the grounds to quash the writ of execution?
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the parties making the
execution inequitable or unjust;
3. When execution is sought to be enforced against a property exempt from
execution;
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4. When it appears that the controversy has never been submitted to the
judgment of the court;
5. When the terms of the judgment are not clear enough and there remains room
for interpretation thereof;
6. When it appears that the writ of execution has been improvidently issued
7. When it appears that the writ of execution is defective in substance, or is issued
against the wrong party, or that the judgment debt has been paid or otherwise
satisfied or the writ is issued without authority. (Reburiano v. CA, 301 SCRA 342).
c. Execution of judgments for money (Rule 39, Sec. 9)
Three ways to enforce a judgment for money:
1. Immediate payment on demand
2. Satisfaction by levy
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.
3. Garnishment of debts and credits.
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 debtors property.
Levy and Garnishment
Levy is the seizure of property, personal and/or real, belonging to the judgment debtor for
subsequent execution sale to satisfy judgment. Garnishment is the process of notifying a third
person called the garnishee to retain and attach the property he has in his possession or under
his control belonging to the judgment debtor, to make disclosure to the court concerning the
same, and to dispose of the same as the court shall direct to satisfy the judgment. (Rule 39, Sec.
9.)
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
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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).
d. Execution of judgments for specific acts (Rule 39, Sec. 10)
What are the steps in executing a judgment for specific acts?
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.
4. Removal of improvements on property subject of execution. The officer shall
not destroy, demolish or remove improvements except upon special order of the
court.
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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
e. Execution of special judgments (Rule 39, Sec. 11)
Special judgment is one which can only be complied with by the judgment obligor because of his
personal qualifications or circumstances.
Requires the performance of any act other than payment of money, or the sale or delivery of real
or personal property.
Failure to comply with special judgment under Section 11 is punishable by contempt by
imprisonment. (Rule 39, Sec. 11)
f. Effect of levy on third persons (Rule 39, Sec. 12)
It creates a lien in favor of the judgment obligee over the right, title and interest of the judgment
obligor in such property at the time of the levy, subject to liens and encumbrances then existing
(Rule 39, Sec. 12).
4. Properties exempt from execution (Rule 39, Sec. 13)
Properties exempt from execution.
Except as otherwise expressly provided by law, the following properties, 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 his 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 execution
issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage
thereon.
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5. Proceedings where property is claimed by third persons (Rule 39, Sec. 16)
What are the requisites for a claim by a third person?
1. The property is levied.
2. The claimant is a person other than the judgment obligor or his agent;
Note: A stranger or third person is any person other than the judgment debtor or
his agent. A party to the auction has no business filing a third party claim over
property involved in the action and which he himself claims to belong to him
(Tillson vs. CA, 197 SCRA 587 [1991]). The mere filing of a terceria, or an affidavit
stating complainant Gos alleged title, under Sec. 16, Rule 39, or a motion to quash
the writ of execution does not stay the auction sale scheduled by the sheriff.
Complainants are not strangers or third persons within the meaning of Sec. 16,
Rule 39. Hence, they have no requisite standing to file a terceria, much less a
separate complaint to annul the execution sale which they inopportunely
instituted before the RTC of Pasay City (Go vs. Abrogar, 398 SCRA 166 [2003]).
3. Makes an affidavit [terceria]; of his title thereto or right to the possession
thereof stating the grounds of such right or title, and serves the same upon the
officer making the levy and the judgment obligee (Rule 39, Sec 16).
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).
Remedy of third party claimant; remedy of judgment obligee
1. The third party claimant may vindicate his claim to the property in a separate
action,
2. The judgment obligee may claim damages in the same or a separate action
against a third party claimant who filed a frivolous or plainly spurious claim.
What is the remedy from the denial of a third-party claim?
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)
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Money judgments are enforceable only against the property incontrovertibly belonging to the
judgment debtor, and if the property belonging to any third person is mistakenly levied upon to
answer for another man’s indebtedness, such person has all the right to challenge the levy
through any of the remedies provided for under the Rules of Court. Section 16, Rule 39
specifically provides that a third person may avail himself of the remedies of either terceria, to
determine whether the sheriff has rightly or wrongly taken hold of the property not belonging to
the judgment debtor or obligor, or an independent "separate action" to vindicate his claim of
ownership and/or possession over the foreclosed property.
Before the court can exercise its supervisory power to direct the release of the property
mistakenly levied and the restoration thereof to its rightful owner, the claimant must first
unmistakably establish his ownership or right of possession thereon. [A] third person whose
property was seized by a sheriff to answer for the obligation of the judgment debtor may
invoke the supervisory power of the court which authorized such execution. Upon due
application by the third person and after summary hearing, the court may command that the
property be released from the mistaken levy and restored to the rightful owner or possessor.
What said court can do in these instances, however, is limited to a determination of whether the
sheriff has acted rightly or wrongly in the performance of his duties in the execution of judgment,
more specifically, if he has indeed taken hold of property not belonging to the judgment debtor.
The court does not and cannot pass upon the question of title to the property, with any character
of finality. (Villasi vs. Garcia, G.R. No. 190106, January 15, 2014)
a. in relation to third party claim in attachment and replevin
In case of a third party claim in attachment (Rule 57, Sec. 14) and replevin (Rule 60, Sec. 7) , the
third party claimant MAY STILL INTERVENE because there is still no judgment. That is why said
provisions state that the third party claimant may vindicate his claim to the property in the same
or separate action.
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.
Who may redeem?
a. Judgment obligor or his successor in interest
b. Creditor who is a redemptioner (Rule 39, Sec. 27)
What is the time and manner of successive redemptions? (Rule 39,Sec. 28)
a. Judgment debtor (or his successor in interest) , if exercising redemption ahead
of mere redemptioner within 1 year from date of registration of sheriffs certificate
of sale (with Register of Deeds)
b. Redemptioner exercising redemption ahead of judgment debtor (or his
successor in interest) within 1 year from date of registration of certificate of sale
c. Redemptioner redeeming from another redemptioner within 60 days after the
last redemption
Deed and possession after expiration of redemption period
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).
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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.
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before the issuance of the writ (Mindanao Savings and Loan Association, Inc. vs. CA, 172 SCRA
480).
v Several writs may be issued at the same time to the sheriffs of the courts of different judicial
regions. (Sec. 2)
Attachment and garnishment distinguished
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
Garnishment of bank deposits does not violate the bank secrecy law (RA1405) 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).
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e. Manner of attaching real and personal property; when property attached is claimed by third
person
The sheriff enforcing the writ shall without attach only so much of the property of the adverse
party not exempt from execution, as may be sufficient to satisfy the applicant's demand,
UNLESS the adverse party
(a) makes a DEPOSIT with the court from which the writ is issued, or
(b) gives a COUNTERBOND executed to the applicant, in an amount equal to the
bond fixed by the court in the order of attachment or to the value of the property
to be attached, exclusive of costs.
No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced
unless it is preceded, or contemporaneously accompanied, by service of summons, together with
a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and
the order and writ of attachment, on the defendant within the Philippines.
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:
1. Real property, growing crops, or any other interest therein
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.
2. Personal property capable of manual delivery
a) By taking and safely keeping it in his custody, after issuing the corresponding
receipt therefor
3. Stocks or shares, or an interest in stocks and shares, of any corporation or company
a) By leaving with the president or managing agent thereof, a copy of the writ, and
a notice stating that the stock or interest of the party against whom the
attachment is issued, is attached pursuant to the writ
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
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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.
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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.
x 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),
x 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
defendants property or the payment of damages to the defendant if the plaintiffs 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 Corporation vs. Yllas Lending Corporation, G.R. No. 158997, October 6, 2008).
f. Discharge of attachment and the counter-bond
After a writ of attachment has been enforced, the party whose property has been
attached, or the person appearing on his behalf, may move for the discharge of
the attachment wholly or in part on the security given.
Grounds for discharge:
1. Debtor has posted a COUNTER BOND or makes a CASH DEPOSIT
in an amount equal to that fixed by the court in the order of
attachment. But if the attachment is sought to be discharged with
respect to a particular property, the counter bond shall be 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).
x 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].
g. Satisfaction of judgment out of property attached
If judgment be recovered by the attaching obligee and execution issue thereon, the sheriff may
cause the judgment to be SATISFIED out of the property attached, if it be sufficient for that
purpose in the following manner:
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;
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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 sheriffs 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 sheriffs hands, shall be delivered to the party against whom attachment
was issued, and the order of attachment discharged. (Rule 57, Sec. 19)
Preference of levy on attachment duly registered over a prior unregistered sale
The settled rule is that levy on attachment, duly registered, takes preference over a prior
unregistered sale. The preference created by the levy on attachment is not diminished even by
the subsequent registration of the prior sale. This is so because an attachment is a proceeding in
rem. It is against the particular property, enforceable against the whole world. The attaching
creditor acquires a specific lien on the attached property which nothing can subsequently
destroy except the very dissolution of the attachment or levy itself. The lien continues until the
debt is paid, or sale is had under execution issued on the judgment, or until the judgment is
satisfied, or the attachment discharged or vacated in some manner provided by law. Thus, in the
registry, the attachment in favor of respondents appeared in the nature of a real lien when
petitioner had his purchase recorded. The effect of the notation of said lien was to subject and
subordinate the right of petitioner, as purchaser, to the lien (Valdevieso vs. Damalerio, G.R. No.
133303, February 17, 2005, 451 SCRA 664, 670).
No sale of property covered by writ of preliminary attachment before prior judgment;
Exception
A writ of attachment is a provisional remedy and its issuance does not have the effect of a final
judgment over the property attached. Thus, the property cannot be sold before final judgment.
Exception: An attached property may be sold after levy on attachment and before entry of
judgment whenever it shall be made to appear to the court In which the action is pending, upon
hearing with notice to both parties, that (a) the attached property is perishable or that (b) the
interests of all the parties to the action will be subserved by the sale of the attached property
(Rule 57, Sec. 11; China Banking Corporation vs. Asian Corporation and Development Corporation,
G.R. No. 158271, April 8, 2008).
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INJUNCTION PROHIBITION
Does not involve the jurisdiction of May be on the ground that court is acting without or in
the court excess of jurisdiction
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,).
When injunction improper
Tay Chun Suy vs. CA, 229 SCRA 151 (1994)
As between the buyer of a vessel at a prior extrajudicial foreclosure and the buyer at a
subsequent auction sale, both buyers failing to register their transactions, who has a better right
of dominion over the vessel?
Rule that no court has the power to interfere by injunction with the judgments of another court
with concurrent or coordinate jurisdiction applies only when NO PARTY CLAIMANT involved.
When a third party or a stranger to the action asserts a claim over the property levied upon, the
claimant may vindicate his claim by an independent action in the proper civil court which may
stop the execution of the judgment on property not belonging to the judgment debtor.
Cases where injunction was held improper
1. To restrain collection of taxes except where there are special circumstances that
bear the existence of irreparable injury. (Churchill & Tait v. Rafferty, 32 Phil. 580
[1915]).
2. To restrain the sale of conjugal properties where the claim can be annotated on
the title as a lien such as the husbands obligation to give support. (Saavedra v.
Estrada 56 Phil. 33 [1931])
3. To restrain a mayor proclaimed as duly elected from assuming his office.
(Cereno v. Dictado, No. L 81550, April 15, 1988, 160 SCRA 759.)
4. To restrain consummated or ministerial acts:
a. Not proper to restrain against disposing a case on the merits.
(Government Service Insurance System (GSIS) v. Florendo, G.R. NO.
48603, September 29, 1989, 178 SCRA 76; Ortigas and Company
Limited Partnership v. Court of Appeals, No. L 79128, June 16,
1988, 162 SCRA 165.)
b. Not proper to stop the execution of judgment where the
judgment was already executed. (Meneses v. Dinglasan, 81 Phil.
470 [1948])
c. The Regional Trial Court has no power to issue a writ of injunction
against the Register of Deeds if its effect is to render nugatory a
writ of execution issued by the National Labor Relations
Commission. (Ambrosio v. Salvador, No. L 47651, December 11,
1978, 87 SCRA 217.)
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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).
SUMMARY LIST OF INSTANCES WHERE PRELIMINARY INJUNCTION IS PROHIBITED:
1. Injunction against courts or tribunals of co equal rank prohibited. (Roldan, Jr. v.
Arca, G.R. No. 25434, July 25, 1975, 65 SCRA 336)
2. Injunction orders are prohibited in labor cases. (Associated Labor Union (AKU
TUCP) v. Borromeo, No. L 75736, September 29, 1988, 166 SCRA 99; Kaisahan ng
Mga Manggagawa v. Sarmiento, No. L 47853, November 16, 1984, 133 SCRA 220)
3. Injunction beyond prayer in complaint (The Chief of Staff, AFP v. Guadiz, Jr., No.
L 35007, December 29, 1980, 101 SCRA 827) Enjoining the prosecution of criminal
proceedings. (Romero v. The Chief of Staff, AFP, G.R. No. 84076, February 20,
1989, 170 SCRA 108; Reyes v. Camilon, G.R. No. 46198, December 20, 1990, 192
SCRA 445 )
4. Injunctions to prevent the implementation of government infrastructure
projects. (Section 3, RA 8975)
5. Injunctions to prevent the implementation or execution of contracts for the
operation of a public utility. (G&S Transport Corporation vs CA 382 SCRA 262 GR
No. 120287, May 28, 2002)
6. Injunctions to prevent the foreclosure of real estate mortgages by government
financing institutions (OCA Circular no. 93 2004 in relation to Sec. 21 Rule 141 of
the Rules of Court, Sec.3 PD 385 and Administrative Circular No. 07 99)
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)
Period to decide case when a higher court issues a writ of preliminary injunction against a lower
court, board or tribunal:
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)
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g. Duration of TRO
Effectivity of TRO
RTC 20 days
CA 60 days
SC until further orders
h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving
government infrastructure projects
Statutory Prohibitions against the Issuance of a Writ of Preliminary Injunction or preliminary
mandatory injunction
Under Rep. Act No. 8975
The issuance of temporary restraining orders, preliminary injunctions, or preliminary mandatory
injunctions against government infrastructure projects is prohibited under this law.
Section 3 RA 8975 states that No court, except the Supreme Court shall issue any TRO or
preliminary injunction or preliminary mandatory injunction against the government, or any of its
subdivisions or officials, whether public or private acting under the government direction to
restrain, prohibit or compel the following acts:
1. Acquisition, clearance and development of the right of way and/or site or
location of any national government project;
2. Bidding or awarding of contract/ project of the national government;
3. Commencement, prosecution, execution, implementation, operation of any
such contract or project;
4. Termination or rescission of any such contract/project; and
5. The undertaking or authorization of any other lawful activity necessary for such
contract/project.
Accordingly, a Regional Trial Court (RTC) that ignores the statutory prohibition and issues a TRO
or a writ of preliminary injunction or preliminary mandatory injunction against a government
contract or project acts contrary to law. (Nerwin Industries Corporation vs. PNOC Energy
Development Corporation, G.R. No. 167057, April 11, 2012) – LPB
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).
R.A. 8975 prohibits the issuance of TRO and/or writ of preliminary injunction against national
government infrastructure projects, not merely national government projects. While the E-
Passport Project is national in scope, it is an information and communication technology
project with no relation to infrastructure or any civil works component. Hence, it is excluded
from the coverage of R.A. 8975 and may be stayed by a writ of injunction. (Department of
Foreign Affairs vs. Falcon, G.R. No. 176657; September 1, 2010)
i. Rule on prior or contemporaneous service of summons in relation to attachment (out of place
here)
5. Receivership (Rule 59)
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.
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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.
Receivership other than that under Rule 58
1. Receivership in aid of execution of judgment under Rule 39, Sec. 1
2. Bank receivership
3. Receivership in petitions for insolvency under the Insolvency Law
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)
Specific situations when a receiver may be appointed
1. Family Code, Article 101
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.
2. Sec. 41, Rule 39
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; Acua v. Caluag, 101 Phil.
446 [1957])
4. After final judgment, a receiver may be appointed as an aid to the execution of
judgment. (Philippine Trust Company v. Santamaria, 53 Phil. 463 [1929])
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)
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 (Rule 60)
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.
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Available even if recovery of personal property is only Available only if principal relief
incidental relief in the action sought is recovery of personal
property; Relief for damages are only
incidental
Can be resorted to even if personal property is in the Can be sought only where defendant
custody of a third person is in actual or constructive possession
of the personality involved
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Redelivery bond
If the adverse party objects to the sufficiency of the applicants 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 applicants 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)
d. Sheriffs duty in the implementation of the writ; when property is claimed by third party
Disposition of property by sheriff
1) The sheriff shall retain the property for 5 days. The adverse party may object to
the sufficiency of the bond or surety or he may file a redelivery bond.
2) If after 5 days and the adverse party failed to object or his redelivery bon is
insufficient, the sheriff shall deliver the property to the applicant (R60S6)
3)The defendant is entitled to the return of the property under writ of replevin if:
a. He seasonably posts a redelivery bond (R60S5)
b. Plaintiffs bond is found to be insufficient or defective and is not
replaced with a proper bond.
c. Property is not delivered to plaintiff for any reason (R60S6)
Rule 60, Sec. 7. Proceedings where property claimed by third person.
The third person against whom the writ or replevin had been issued must make
an
AFFIDAVIT of his title thereto, or right to the possession thereof,
stating the grounds of such right or title, and
serves such affidavit upon the sheriff while the latter has
possession of the property and a copy thereof upon the applicant
The sheriff shall not be bound to keep the property as a general rule.
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.
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
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damages adjudged by the court shall be paid by the National Treasurer out of the
funds to be appropriated for the purpose.
S. Special Civil Actions (Rules 62-71)
1. Nature of special civil actions
A special civil action is a civil action which aside from being governed by the rules for ordinary
civil action is subject to specific rules provided for it.
2. Ordinary civil actions versus special civil actions
An ordinary civil action is governed by the rules for ordinary civil actions while a special civil action
is governed by the rules for ordinary civil action and by specific rules.
Every ordinary civil action must be based on a cause of action, while not every special civil action
must be based on a cause of action, as for instance, declaratory relief. (Primer Reviewer on
Remedial Law, Manuel R. Riguera, First Edition, p. 462)
A special civil action is a civil action which aside from being governed by the rules for ordinary
civil action is subject to specific rules provided for it.
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 respective judicial regions (BP 129).
Governed by rules for ordinary civil actions Generally governed by rules for ordinary civil
actions but subject to special rules
Must be based on a cause of action Not necessarily such as in certain special civil
meaning an act or omission has violated actions:
the rights of another 1. Declaratory relief no actual violation of rights
2. Interpleader no interest in the subject matter
May be filed initially in either the MTC or There are some special civil actions which cannot
RTC depending upon the jurisdiction be commenced in the MTC, i.e. petitions for
amount or the nature of the action. certiorari, prohibition and mandamus
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Ordinary civil actions are filed as Some special civil actions are filed as complaints,
complaints. but others are filed as petitions
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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 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 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.
5. Declaratory Reliefs and Similar Remedies (Rule 63)
a. Who may file the action
Rule 63, Section 1. Who may file petition.
Any person interested under a deed, will, contract or other written instrument, whose rights are
affected by a statute, executive order or regulation, ordinance, or any other governmental
regulation may, before breach or violation thereof, bring an action in the appropriate Regional
Trial Court to determine any question of construction or validity arising, and for a declaration of
his rights or duties, thereunder.
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.
Rule 63, Sec. 2. Parties.
All persons who have or claim any interest which would be affected by the declaration shall be
made parties; and no declaration shall, except as otherwise provided in these Rules, prejudice
the rights of persons not parties to the action.
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) )
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3. Except in actions for quieting of title, the courts 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)
5. If the validity of a local government ordinance is in question, the prosecutor or
attorney of the local government should be notified. (Rule 63, Sec. 3)
6. A compulsory counterclaim is allowed. (Visayan Packing Corp. v. Reparations
Commission, GR No. L 29673, November 12, 1987)
7. When there is a breach of contract or violation of a statute or ordinance before
the final termination of the case, the case is converted into an ordinary action.
(Rule 63, Section 6)
b. Requisites of action for declaratory relief
1. The subject matter of the controversy must be a deed, will, contract or other
written instrument, statute, executive order or regulation or ordinance; (Rule 63,
Section 1)
2. There must be a justiciable controversy (Obiles v. Republic, 92 Phil. 864 [1953])
3. The controversy must be between persons whose interest is adverse
4. The parties must have legal interest in the controversy
5. The controversy must be ripe for judicial determination (Board of Optometry v.
Colet, G.R. No. 122241, July 30, 1996, 260 SCRA 88)
6. The petition must be filed before there is a breach or violation. (Rule 63, Sec.
1.)
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).
c. When court may refuse to make judicial declaration
Rule 63, Sec. 5. Court action discretionary.
Except in actions falling under the second paragraph of Section 1 of this Rule, 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 and proper under the circumstances.
Declaratory Relief Improper in the Following Cases:
1. to obtain judicial declaration of citizenship (Dy Poco v. Commissioner of
Immigration, No. L 22313, March 31, 1966, 16 SCRA 615; Singson vs. Republic, No.
L 21855, January 30, 1968, 22 SCRA 353) ;
2. to determine the validity or construction to be placed on a registration
certificate (Obiles v. Republic, supra.)
3. to seek relief on moot questions or to resolve hypothetical, abstract or
theoretical questions, or to decide claims which are uncertain (Lim v. Republic,
No. L 29535, February 27, 1971, 37 SCRA 783) ;
4. to resolve political issues or questions (Dela Llana v. Commission on Elections,
No. L 47245, December 9, 1977, 80 SCRA 525)
5. to test the correctness or validity of a court decision (Tanda v. Aldaya, 52 O.G.
No. 11,5175 (September 15, 1956)
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As such, he is entitled to the possession of the said property and can demand it at any time
following the consolidation of ownership in his name and the issuance to him of a new transfer
certificate of title. The buyer can in fact demand possession of the land even during the
redemption period except that he has to post a bond in accordance with Section 7 of Act No.
3135, as amended. No such bond is required after the redemption period if the property is not
redeemed. Possession of the land then becomes an absolute right of the purchaser as confirmed
owner. Upon proper application and proof of title, the issuance of the writ of possession becomes
a ministerial duty of the court. (BPI Family Savings Bank, Inc. vs. Golden Power Diesel Sales
Center, Inc., G.R. No. 176019, January 12, 2011 citing China Banking Corporation v. Lozada, G.R.
No. 164919, 4 July 2008, 557 SCRA 177, citing IFC Service Leasing and Acceptance Corporation v.
Nera, 125 Phil. 595 [1967].)
C. Quieting of title to real property
For an action to quiet title to prosper, two (2) indispensable requisites must concur, namely: (1)
the plaintiff or complainant has a legal or an equitable title to or interest in the real property
subject of the action; and (2) the deed, claim, encumbrance, or proceeding claimed to be casting
cloud on his title must be shown to be in fact invalid or inoperative despite its prima facie
appearance of validity or legal efficacy. (Eland Philippines, Inc. vs. Garcia, G.R. No. 173289,
February 2010.)
Legal title denotes registered ownership, while equitable title means beneficial ownership. In the
absence of such legal or equitable title, or interest, there is no cloud to be prevented or removed.
(Mananquil vs. Moico, G.R. No. 180076, November 21, 2012)
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]).
In a petition for declaratory relief the subject matter must refer to a deed, will, contract or other
written instrument, or to a statute or ordinance, to warrant declaratory relief. Any other matter
not mentioned therein is deemed excluded. This is under the principle of expressio unius est
exclusio alterius. A petition for declaratory relief cannot properly have a court decision as its
subject matter. (Reyes vs. Ortiz, G.R. No. 137794; August 11, 2010 TDC)
What are the requisites for declaratory relief?
a. existence of a justiciable controversy;
b. controversy is between persons whose interests are adverse;
c. party seeking the relief has a legal interest in the controversy; and
d. the issue invoked is ripe for judicial determination (Board of Optometry vs.
Colet, 260 SCRA 89 [1996])
A justiciable controversy refers to an existing case or controversy that is appropriate or ripe for
judicial determination, not one that is conjectural or merely anticipatory.
When is the remedy improper?
Where there is a BREACH of a contract, or VIOLATION of a statute or right.
Once there is a breach, the remedy is no longer an action for declaratory relief but some other
remedy.
Distinguish declaratory relief from interpleader
1. Interpleader filed by a person who claims NO INTEREST whatsoever in the
subject matter.
2. Declaratory relief party seeking relief has LEGAL INTEREST in the controversy.
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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 courts findings and conclusions. (Lee vs. People 393 SCRA 397;
Microsoft Corporation vs. Best Deal Computer Center 389 SCRA 615)
Terminology
1) Without juri or a virtual duty to perform a duty enjoined by law.
(Duero vs. C.A. 373 SCRA 11 GR No.131282; Vda de Daffon vs. CA,
387 SCRA 427 G.R. No. 129017, August 20, 2002)
PETITION FOR CERTIORARI UNDER RULE 65
How taken and time for filing (Secs. 1 & 4)
Verified petition 60 days from notice of judgment, order or resolution, or denial of MR or MNT.
Period now inextendible. last paragraph of Section 4: No extension of time to file the petition
shall be granted except for compelling reasons and in no case exceeding fifteen (15) days has
been DELETED by A.M. No. 07 7 12 SC, effective December 27, 2007.
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)
Three (3) essential dates that must be stated in a petition for certiorari under Rule65 . First, the
date when notice of the judgment or 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. Failure of petitioner to comply with this requirement shall be sufficient ground
for the dismissal of the petition. Substantial compliance will not suffice in a matter involving
strict observance with the Rules. (Vinuya vs. Romuloc, G.R. No. 162230, August 12, 2014) LPB
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)
Abandonment of judicial courtesy
Unless there is a temporary restraining order or preliminary injunction issued by a higher court,
the main or principal case should proceed despite the filing of a petition for certiorari
questioning an act or omission of a court or tribunal
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.
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
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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.
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.
x 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). and small claims cases (Sec. 14 (g).
A.M. No. 08 8 7 SC). By implication it is available against the judgment.
x If involving acts or omissions of a quasi judicial agency, petition filed in
CA (Sec. 4)
Requisites:
a. Tribunal, board or officer exercises judicial or quasi judicial functions
b. Tribunal, board or officer has acted without or in excess of jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction
Denial of motion to dismiss or to quash, being interlocutory, cannot be
questioned by certiorari; it cannot be subject of appeal, until final order or
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
Generally, if appeal is available, certiorari cannot be resorted to.
Appeal and certiorari are mutually exclusive and not alternative or successive.
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 petitioners 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
In any of such instances, special civil action of certiorari may be availed of
even during the pendency of the case or even after judgment, or
even when appeal has been availed of
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]).
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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]).
> When remedies are not incompatible, filing of certiorari not abandonment of
appeal. In this case, the appeal is from the decision in the main case, while
certiorari is directed against the order denying the motion for new trial (Lansang
Jr. vs. CA, 184 SCRA 230 [1990]; St. Peter Memorial Park vs. Campos, 63 SCRA 180
[1975]). Lansang: After judgment is rendered and an appeal therefrom perfected,
a petition for certiorari relating to certain incidents therein may prosper where
the appeal does not appear to be a plain, speedy and adequate remedy. Appeal
and certiorari are not remedies that exclude each other. Although notice of appeal
indicated that Lansang was appealing from the decision and order denying his
motion for reconsideration, which in effect was a motion for new trial, he filed
certiorari against the order, because of the daily penalty of P250 mentioned in the
award (1985).
> 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])
> 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])
In a special civil action for certiorari, the Court of Appeals has ample authority to receive new
evidence and perform any act necessary to resolve factual issues.
Section 9 of Batas Pambansa Blg. 129, as amended, states that, "The Court of Appeals shall have
the power to try cases and conduct hearings, receive evidence and perform any and all acts
necessary to resolve factual issues raised in cases falling within its original and appellate
jurisdiction, including the power to grant and conduct new trials or further proceedings. (Sps.
Marcelo vs. LBC Bank, G.R. No. 183575, April 11, 2011)
x Motion for reconsideration required before certiorari can be filed(Rule 65,
Section 4) Its purpose is to grant an opportunity for the court to correct any actual or
perceived error attributed to it by the re examination of the legal and factual
circumstances of the case.
x Exceptions:
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceeding have been duly raised
and passed upon by the lower court, or are the same as those raised and passed
upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the government or the petitioner
or the subject matter of the action is perishable;
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accompli. Where the act sought to be prohibited or enjoined has already been accomplished or
consummated, prohibition or injunction becomes moot. Nevertheless, even if the principal issue
is already moot, this Court may still resolve its merits for the future guidance of both bench and
bar. Courts will decide a question otherwise moot and academic if it is capable of repetition, yet
evading review.
There are times when the controversy is of such character that, to prevent its recurrence and to
assure respect for constitutional limitations, this Court must pass on the merits of a case. This is
one such case. If not addressed here and now, there is great probability that the central question
involved in this case will haunt us again in the future. Furthermore, if not corrected, such an act
would give rise to mischief and dangerous precedent whereby those in the corridors of power
could avoid judicial intervention and review by merely speedily and stealthily completing the
commission of an illegality.
In any event, the present petition is also for certiorari and there is no procedural bar for the Court
to pass upon the question of whether the proclamations of respondents Guidote Alvarez,
Caparas, Maosa and Moreno as National Artists were attended by grave abuse of presidential
discretion. (National Artists vs. Executive Secretary , G.R. No. : 189028, July 16, 2013)
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.
Requisites for mandamus to issue
a. The applicant must have a CLEAR LEGAL RIGHT to the thing demanded. The right
must be well defined, clear and certain (Lemi vs. Valencia, 26 SCRA 203 [1968]).
b. Mandamus never issues in doubtful cases, nor will it issue to establish a legal
right, but only to ENFORCE one that is already clearly established (Lim Tay vs. CA,
293 SCRA 634 [1998]).
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].
Ministerial and discretionary power
Mandamus will lie to compel the doing of a ministerial act.
It does not lie to control discretion, although it may issue to compel the exercise of discretion
but not the discretion itself. Mandamus can require action only but not specific action where the
act sought to be performed involves the exercise of discretion (Sharp International Marketing vs.
CA. 201 SCRA 299 [1991])
Mandamus is employed to compel the performance, when refused, of a ministerial duty, but not
to compel the performance of a discretionary duty. The legal right to the performance of the
particular act sought to be compelled must be clear and complete. Otherwise, where the right
sought to be enforced is in substantial doubt or dispute, mandamus cannot issue. Thus, the
issuance by the LRA officials of a decree of registration is not a purely ministerial duty in cases
where they find that such would result to the double titling of the same parcel of land. (Fidela R.
Angeles vs. The Secretary of Justice, G.R. No. 142549, March 9, 2010)
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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 equivalent 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]).
When mandamus may not lie
1. Where the position is disputed by two persons who both claim a right thereto,
mandamus does not lie to oust the person who occupies it and exercises its
functions. The remedy is an action for QUO WARRANTO which tests the title to
one’s office claimed by another and to oust the holder from its enjoyment (Garces
vs. CA, 159 SCRA 99 [1996]).
2. Mandamus does not lie to enforce the performance of contractual obligations.
A contractual obligation is not a duty specifically enjoined by law resulting from
office, trust or station (Aprueba vs. Ganzon, 18 SCRA 8 [1966]).
3. The appointing power being discretionary, mandamus does not lie to compel
the appointing authority to appoint a particular person to a particular position,
though how qualified he may be to the position (Gloria vs. De Guzman, Jr., 249
SCRA 126 [1995]).
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).
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.
e. Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished
from Injunction; when and where to file petition
Certiorari as a Mode of Appeal (Rule 45) Certiorari as a Special Civil Action (Rule 65)
Called petition for review on certiorari, is A special civil action that is an original action and
a mode of appeal, which is but a not a mode of appeal, and not a part of the
appellate process but an independent action.
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Seeks to review final judgments or final May be directed against an interlocutory order of
orders 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 Filed not later than 60 days from notice of
judgment or final order appealed from, or judgment, order or resolution sought to be assailed
of the denial of petitioners motion for and in case a motion for reconsideration or new
reconsideration or new trial; trial is timely filed, whether such motion is
required or not, the 60 day period is counted from
notice of denial of said motion;
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 respondent
adverse party as the respondent without
impleading the lower court or judge
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 Court may dismiss the petition outright on the
the ground that the appeal is without ground that the same is patently without merit, or
merit, or prosecuted manifestly for delay, prosecuted manifestly for delay, or that the
or that the questions raised therein are questions raised are too unsubstantial to require
too unsubstantial to require consideration
consideration
(Prohibition and Mandamus distinguished from Injunction; when and where to file petition
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Prohibition Injunction
Ground must be that the court acted without or in Does not involve a question of
excess of jurisdiction jurisdiction
Prohibition Mandamus
May be directed against entities exercising judicial or May be directed against judicial and
quasi judicial, or ministerial functions non judicial entities
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3. where there is an urgent necessity for the resolution of the question and any
further delay would prejudice the interests of the government or of the petitioner
or the subject matter of the action is perishable
4. where, under the circumstances, a motion for reconsideration would be useless
5. where petitioner was deprived of due process and there is extreme urgency for
relief
6. where, in a criminal case, relief from an order of arrest is urgent and the
granting of such relief by the trial court is improbable
7. where the proceedings in the lower court are a nullity for lack of due process
8. where the proceedings were ex parte or in which the petitioner had no
opportunity to object
9. where the issue raised is one purely of law or where public interest is involved
10. where judicial intervention is urgent
11. where its application may cause great and irreparable damage
12. failure of a high government official from whom relief is sought to act on the
matter
13. when the issue of non exhaustion of administrative remedies has been
rendered moot
14. where special circumstances warrant immediate and more direct action
(Novateknika Land Corporation vs. Philippine National Bank, G.R. No. 194104,
March 13, 2013; Republic vs. Bayao, G.R. No. 179492, June 5, 2013; Tan, Jr. vs.
Sandiganbayan, 242 SCRA 452; Marawi Marantao General Hospital vs. CA, 349
SCRA 321).
g. Reliefs petitioner is entitled to
Rule 65, Sec. 1 (Certiorari) --
x x x that judgment be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as law and justice may
require.
Rule 65, Sec. 2 (Prohibition)
x x x that judgment be rendered commanding the respondent to desist from further
proceedings in the action or matter specified therein, or otherwise granting such
incidental reliefs as law and justice may require.
Rule 65. Sec. 3 (Mandamus)
x x x that judgment be rendered commanding the respondent, immediately or at some
other specified by the court, to do the act required to be done to protect the rights of
the petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent.
h. Actions/Omissions of MTC/RTC in election cases
Rule 65, Sec. 4, as amended by A. M. No. 07 7 12 dated Dec, 12, 2007
If the petition relates to an act or omission of a municipal trial court or of a corporation, board,
officer or person, it shall be filed with the Regional Trial Court exercising jurisdiction over the
territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals
whether or not the same is in aid of its appellate jurisdiction, or with the Sandiganbayan if it is in
aid of its appellate jurisdiction. If the petition involves an act or omission of a quasi judicial
agency, unless otherwise provided by law or these rules, the petition shall be filed with and be
cognizable only by the Court of Appeals.
In election cases involving an act or omission of a municipal or regional trial court, the petition
shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction
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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 Courts 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).
i. Where to file petition
See above
j. Effects of filing of an unmeritorious petition (for certiorari)
Rule 65
Section 8. Proceedings after comment is filed. After the comment or other pleadings required
by the court are filed, or the time for the filing thereof has expired, the court may hear the case
or require the parties to submit memoranda. If, after such hearing or filing of memoranda or the
expiration of the period for filing, the court finds that the allegations of the petition are true, it
shall render judgment for such relief to which the petitioner is entitled.
However, the court may dismiss the petition if it finds the same patently without merit or
prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to
require consideration. In such event, the court may award in favor of the respondent treble
costs solidarily against the petitioner and counsel, in addition to subjecting counsel to
administrative sanctions under Rules 139 and 139-B of the Rules of Court.
The Court may impose motu proprio, based on rep ipsa loquitur, other disciplinary sanctions or
measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari.
8. Quo Warranto (Rule 66)
a. Distinguish from Quo Warranto in the Omnibus Election Code
The issue is the legality of the occupancy of Grounds relied upon are: (a) ineligibility to the
the office by virtue of a legal appointment; position; or (b) disloyalty to the Republic.
Petition is brought either to the Supreme May be instituted with the COMELEC by any
Court, the Court of Appeals or the Regional voter contesting the election of any member of
Trial Court; Congress, regional, provincial or city officer; or to
the MeTC, MTC or MCTC if against any barangay
official;
Filed within one (1) year from the time the Filed within ten (10) days after the proclamation
cause of ouster, or the right of the of the results of the election;
petitioner to hold the office or position
arose;
Petitioner is the person entitled to the Petitioner may be any voter even if he is not
office; entitled to the office;
The court has to declare who the person When the tribunal declares the candidate elect
entitled to the office is if he is the as ineligible, he will be unseated but the person
petitioner. occupying the second place will not be declared
as the one duly elected because the law shall
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5. the utilization of the property for public use must be in such a way as to oust
the owner and deprive him of all beneficial enjoyment of the property. (Didipio
Earth Savers Multi Purpose Association, Incorporated vs. Elisea Gozun, G.R. No.
157882, March 30, 2006)
The appointment of commissioners is mandatory and cannot be dispensed with, without
violating the constitutional right to due process and the mandated rule established by the
Revised Rules of Court(Manila Electric Company vs. Pineda, GR No. L 59791, February 13, 1992)
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)
d. New system of immediate payment of initial just compensation
See above
e. Defenses and objections
Rule 67, Sec. 3. Defenses and objections.
If a defendant has no objection or defense to the action or the taking of his property, he may file
and serve a notice of appearance and a manifestation to that effect, specifically designating or
identifying the property in which he claims to be interested, within the time stated in the
summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same.
If a defendant has any objection to the filing of or the allegations in the complaint, or any
objection or defense to the taking of his property, he shall serve his answer within the time stated
in the summons. The answer shall specifically designate or identify the property in which he
claims to have an interest, state the nature and extent of the interest claimed, and adduce all his
objections and defenses to the taking of his property. No counterclaim, cross claim or third party
complaint shall be alleged or allowed in the answer or any subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the interest of
justice, may permit amendments to the answer to be made not later than ten (10) days from the
filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant
has previously appeared or answered, he may present evidence as to the amount of the
compensation to be paid for his property, and he may share in the distribution of the award.
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.
g. Ascertainment of just compensation
Rule 67, Sec. 5. Ascertainment of compensation.
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Upon the rendition of the order of expropriation, the court shall appoint not more than three (3)
competent and disinterested persons as commissioners to ascertain and report to the court the
just compensation for the property sought to be taken. The order of appointment shall designate
the time and place of the first session of the hearing to be held by the commissioners and specify
the time within which their report shall be submitted to the court.
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.
h. Appointment of Commissioners; Commissioners report; Court action upon commissioners
report
See Rule 67, Sec. 5 above
Rule 67, Sec. 6. Proceedings by commissioners.
Before entering upon the performance of their duties, the commissioners shall take and
subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall
be filed in court with the other proceedings in the case. Evidence may be introduced by either
party before the commissioners who are authorized to administer oaths on hearings before
them, and the commissioners shall, unless the parties consent to the contrary, after 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.
Rule 67, Sec. 7. Report by commissioners and judgment thereupon.
The court may order the commissioners to report when any particular portion of the real estate
shall have been passed upon by them, and may render judgment upon such partial report, and
direct the commissioners to proceed with their work as to subsequent portions of the property
sought to be expropriated, and may from time to time so deal with such property. The
commissioners shall make a full and accurate report to the court of all their proceedings, and
such proceedings shall not be effectual until the court shall have accepted their report and
rendered judgment in accordance with their recommendations. Except as otherwise expressly
ordered by the court, such report shall be filed within sixty (60) days from the date the
commissioners were notified of their appointment, which time may be extended in the discretion
of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all
interested parties, with notice that they are allowed ten (10) days within which to file objections
to the findings of the report, if they so desire.
Rule 67, Sec. 8. Action upon commissioners report.
Upon the expiration of the period of ten (10) days referred to in the preceding section, or even
before the expiration of such period but after all the interested parties have filed their objections
to the report or their statement of agreement therewith, the court may, after hearing, accept
the report and render judgment in accordance therewith; or, for cause shown, it may recommit
the same to the commissioners for further report of facts; or it may set aside the report and
appoint new commissioners; or it may accept the report in part and reject it in part; and it may
make such order or render such judgment as shall secure to the plaintiff the property essential
to the exercise of his right of expropriation, and to the defendant just compensation for the
property so taken.
i. Rights of plaintiff upon judgment and payment
Rule 67, Sec. 10. Rights of plaintiff after judgment and payment.
Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with
legal interest thereon from the taking of the possession of the property, or after tender to him
of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon
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the property expropriated and to appropriate it for the public use or purpose defined in the
judgment, or to retain it should he have taken immediate possession thereof under the
provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court,
or decline to receive the amount tendered, the same shall be ordered to be deposited in court
and such deposit shall have the same effect as actual payment thereof to the defendant or the
person ultimately adjudged entitled thereto.
j. Effect of recording of judgment
Rule 67, Sec. 13. Recording judgment, and its effect.
The judgment entered in expropriation proceedings shall state definitely, by an adequate
description, the particular property or interest therein expropriated, and the nature of the public
use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of
such judgment shall be recorded in the registry of deeds of the place in which the property is
situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for
such public use or purpose.
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 any
recognition thereof in the Constitution. Possessed by the State. By delegation, may also be
possessed by local gov’ts, other public entities, and public utilities.
Expropriation is the procedure for enforcing said right.
What are the stages of expropriation?
1. Determination of the RIGHT TO EXPROPRIATE or the authority of plaintiff to
exercise power of eminent domain and propriety of its exercise in the context of
the facts. It ends with an order of condemnation declaring that plaintiff has lawful
right to take the property for public use or purpose after payment of just
compensation to be determined as of the date of filing of the complaint. It may be
an order of dismissal. Both orders are final orders, hence appealable within 30
days.
2. Determination by the court of JUST COMPENSATION with the assistance of
three commissioners. Order fixing just compensation also final because leaves
nothing more to be done by the court regarding the issue. Also appealable but
within 15 days.
What is the period to appeal from order of expropriation?
In actions for eminent domain, as in actions for partition, two appeals are allowed by law. Period
is 30 days from notice of order of condemnation Cases where multiple appeals are allowed,
where record on appeal is required. In the event of an appeal from a separate judgment, the
original record cannot be sent up to the appellate court. The record will have to stay with the
trial court because it will still try the case as regards the other defendants (Municipality of Biñan
vs. Garcia, 180 SCRA 576 [1989]).
Meaning of just compensation
Just compensation means the market value of the property at the time of taking. It means a full
and fair equivalent of the property for the loss sustained. Equivalent shall be real, substantial, full
and prompt. It must be fair not only to the owner but also to the taker.
When should just compensation be determined?
The just compensation should be determined at the time of actual taking. The provisions of Sec.
4, Rule 67, Rules of Court to the effect that just compensation is to be determined at the time of
taking of the property or the filing of the complaint, whichever came first cannot prevail over
Sec. 19, RA 7160, the Local Government Code, a substantive law which provides that the amount
to be paid for the expropriate property shall be determined by the proper court based on the fair
market value at the time of taking the property. (The City of Cebu vs. Spouses Degamo, G. R. No.
142971, May 7, 2002).
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The expropriator who has taken possession of the property subject of expropriation is obliged to
pay reasonable compensation to the landowner for the period of such possession although the
proceedings had been discontinued on the ground that the public purpose for the expropriation
had meanwhile ceased. (Republic vs. Borbon, G.R. No. 165654, January 12, 2015) LPB
10. Foreclosure of Real Estate Mortgage (Rule 68)
a. Judgment on foreclosure for payment or sale
Rule 68, Sec. 2. Judgment on foreclosure for payment or sale.
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.
b. Sale of mortgaged property; effect
Rule 68, Sec. 3. Sale of mortgaged property; effect.
When the defendant, after being directed to do so as provided in the next preceding section, fails
to pay the amount of the judgment within the period specified therein, the court, upon motion,
shall order the property to be sold in the manner and under the provisions of Rule 39 and other
regulations governing sales of real estate under execution. Such sale shall not affect the rights of
persons holding prior encumbrances upon the property or a part thereof, and when confirmed
by an order of the court, also upon motion, it shall operate to divest the rights in the property of
all the parties to the action and to vest their rights in the purchaser, subject to such rights of
redemption as may be allowed by law.
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
c. Disposition of proceeds of sale
Rule 68, Sec. 4. Disposition of proceeds of sale.
The amount realized from the foreclosure sale of the mortgaged property shall, after deducting
the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be
any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior
encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such
encumbrancers or there be a balance or residue after payment to them, then to the mortgagor
or his duly authorized agent, or to the person entitled to it.
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.
Rule 68, Sec. 6. Deficiency judgment.
If upon the sale of any real property as provided in the next preceding section there be a balance
due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render
judgment against the defendant for any such balance for which, by the record of the case, he
may be personally liable to the plaintiff, upon which execution may issue immediately if the
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balance is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be
entitled to execution at such time as the balance remaining becomes due under the terms of the
original contract, which time shall be stated in the judgment.
e. Judicial foreclosure versus extrajudicial foreclosure
Judicial and extrajudicial foreclosures distinguished
Judicial foreclosure of mortgage is governed by Rule 68 and must be done in accordance with the
procedure therein prescribed.
Extrajudicial foreclosure of mortgage is governed by Act No. 3135 as amended and done by the
sheriff pursuant to the special power of attorney inserted in the mortgage document.
Mortgagee has to file a separate action to Mortgagee can move for deficiency judgment in
recover any deficiency; the same action
To enable the extrajudicial foreclosure of the Real Estate Mortgage of petitioners, the special
power to sell should have been either inserted in the REM itself or embodied in a separate
instrument attached to the REM. But it is not disputed that no special power to sell was either
inserted in the REM or attached to the REM. Hence, respondent spouses as the foreclosing
mortgagees could not initiate the extrajudicial foreclosure, but must resort to judicial foreclosure
pursuant to the procedure set forth in Rule 68. The omission of the special power to sell the
property subject of the mortgage was fatal to the validity and efficacy of the extrajudicial
foreclosure, and warranted the invalidation of the entire proceedings conducted by the sheriff.
(Baysa vs. Plantilla, G.R. No. 159271, July 13, 2015) LPB
f. Equity of redemption versus right of redemption
Right of redemption
Right of redemption is the prerogative to re acquire the mortgaged property after registration of
the foreclosure sale exists only in extrajudicial foreclosure of mortgage. No such right is
recognized in judicial foreclosure except only when mortgagee is the PNB or a bank or banking
institution.
In extrajudicial foreclosure, mortgagor may exercise right of redemption within 1 year from
registration of sheriffs certificate of foreclosure sale.
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
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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).
The right of defendant mortgagor to extinguish A right granted to a debtor mortgagor, his
the mortgage and retain ownership of the successor in interest or any judicial creditor or
property by paying the debt within 90 to 120 judgment creditor or any person having a lien
days after the entry of judgment or even after on the property subsequent to the mortgage
the foreclosure sale but prior to confirmation. or deed of trust under which the property is
sold to repurchase the property within one
year even after the confirmation of the sale
and even after the registration of the
certificate of foreclosure sale.
May be exercised even after the foreclosure There is no right of redemption in a judicial
sale provided it is made before the sale is foreclosure of mortgage under Rule 68. This
confirmed by order of the court. right of redemption exists only in extrajudicial
foreclosures where there is always a right of
redemption within one year from the date of
sale(Sec. 3, Act 3135) , but interpreted by the
Court to mean one year from the registration
of the sale.
May also exist in favor or other encumbrances. General rule: In judicial foreclosures there is
If subsequent lien holders are not impleaded as only an equity of redemption which can be
parties in the foreclosure suit, the judgment in exercised prior to the confirmation of the
favor of the foreclosing mortgagee does not foreclosure sale. This means that after the
bind the other lien holders. In this case, their foreclosure sale but before its confirmation,
equity of redemption remains unforeclosed. A the mortgagor may exercise his right of pay
separate foreclosure proceeding has to be the proceeds of the sale and prevent the
brought against them to require them to confirmation of the sale.
redeem 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
equity of redemption, which is simply their the foreclosure is in favor of banks as
right, as mortgagor, to extinguish the mortgage mortgagees, whether the foreclosure be
and retain ownership of the property by paying judicial or extrajudicial. This right of
the secured debt prior to the confirmation of redemption is explicitly provided in Sec. 47 of
the foreclosure sale. the General 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
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3.) Written notice of the redemption must be served on the officer who made the
sale and a duplicate filed with the Register of Deeds (Rosales vs. Yboa, 120 SCRA
869 [1983]).
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)
Writ of possession in extrajudicial foreclosure of mortgage
De Vera vs. Agloro, 448 SCRA 203 (2005)
The purchaser at public auction, who has a right to possession that extends after the expiration
of the redemption period, becomes the absolute owner of the property when no redemption is
made
After the 1 year period, the mortgagor loses all interest over it. The bond required under Sec. 7
of RA 3135 is no longer needed. Possession becomes an absolute right of the purchaser as
confirmed owner. The purchaser can demand possession at any time following the consolidation
of ownership in his name and the issuance to him of a new TCT.
After the consolidation of title in the buyers name for failure of the mortgagor to redeem the
property, the writ of possession becomes a matter of right. Its issuance to a purchaser in an
extrajudicial foreclosure is a merely ministerial function.
.An ex parte petition for issuance of a possessory writ under Sec. 7 of Act 3135 is not, strictly
speaking, a judicial process as contemplated in Art. 433 of the Civil Code it is a non litigious
proceeding authorized in an extrajudicial foreclosure of mortgage. It is brought for the benefit of
one party only, and without notice to, or consent by any person adversely interested. No need
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 is a writ of execution employed to enforce a judgment to recover the
possession of land. It commands the sheriff to enter the land and give possession of it to the
person entitled under the judgment.
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)
A pending action for annulment of mortgage or foreclosure sale does not stay the issuance of
the writ of possession. The trial court, where the application for a writ of possession is filed, does
not need to look into the validity of the mortgage or the manner of its foreclosure. The purchaser
is entitled to a writ of possession without prejudice to the outcome of the pending annulment
case. To stress the ministerial character of the writ of possession, the Court has disallowed
injunction to prohibit its issuance, just as it has held that its issuance may not be stayed by a
pending action for annulment of mortgage or the foreclosure itself.
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Until the foreclosure sale of the property in question is annulled by a court of competent
jurisdiction, the issuance of a writ of possession remains the ministerial duty of the trial court.
The same is true with its implementation; otherwise, the writ will be a useless paper judgment a
result inimical to the mandate of Act No. 3135 to vest possession in the purchaser immediately.
(Sps. Gatuslao vs. Yanson, G.R. No. 191540, January 21, 2015)
Where the extra-judicially foreclosed real property is in the possession of a third party who is
holding the same adversely to the judgment debtor or mortgagor, the RTCs duty to issue a writ
of possession in favor of the purchaser of said real property ceases to be ministerial and, as
such, may no longer proceed ex parte. In such a case, the trial court must order a hearing to
determine the nature of the adverse possession. For this exception to apply, however, it is not
enough that the property is in the possession of a third party, the property must also be held by
the third party ADVERSELY to the judgment debtor or mortgagor, such as a co owner, agricultural
tenant or usufructuary. (Sps. Gatuslao vs. Yanson, G.R. No. 191540, January 21, 2015)
The obligation of the court to issue an ex parte writ of possession in favor of the purchaser in
an extrajudicial foreclosure sale ceases to be ministerial once there is a third party in
possession of the property who has an adverse claim to the mortgagor.
However, the third party claim in this case was not presented at the onset of litigation. In this
case, petitioners opposed the writ of possession because of the pendency of a civil case wherein
they sought the annulment of the mortgage and the foreclosure proceedings and not as vendees
to an alleged sale of the land in dispute. Petitioners raised for the first time their theory that they
are third parties (vendees) holding the property adversely to the mortgagor only after the trial
court had already granted a writ of possession. Worse, petitioners failed to adduce evidence of
the purported sale in their favor. (Cahilig &Siel vs. Terencio & Mercantile Credit Resources Corp.,
G.R. No. 164470; November 28, 2011)
Respondent may rightfully take possession of the subject properties through a writ of
possession, even if he was not the actual buyer thereof at the public auction sale. Respondent,
as a transferee or successor in interest of PNB by virtue of the contract of sale between them, is
considered to have stepped into the shoes of PNB. As such, he is necessarily entitled to avail of
the provisions of Section 7 of Act No. 3135, as amended, as if he is PNB. One of the rights that
PNB acquired as purchaser of the subject properties at the public auction sale, which it could
validly convey by way of its subsequent sale of the same to respondent, is the availment of a writ
of possession. (Sps. Gatuslao vs. Yanson, G.R. No. 191540, January 21, 2015)
The remedy of a party from the trial courts order granting the issuance of a writ of possession
is to file a petition to set aside the sale and cancel the writ of possession, and the aggrieved
party may then appeal from the order denying or granting said petition (Sec.8, Act 3135). When
a writ of possession had already been issued as in this case, the proper remedy is an appeal and
not a petition for certiorari. To be sure, the trial courts order granting the writ of possession is
final. The soundness of the order granting the writ of possession is a matter of judgment, with
respect to which the remedy of the party aggrieved is ordinary appeal. As respondent availed of
the wrong remedy, the appellate court erred in not dismissing outright the petition for certiorari.
(Producers Bank of the Philippines vs. Excelsa Industries, Inc, G.R. No. 173820, April 16, 2012)
11. Partition (Rule 69)
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.
b. Matters to allege in the complaint for partition
Contents of the Complaint:
1.) Nature and extent of his title;
2.) Adequate description of the real estate of which partition is demanded; and
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3.) Defendants and all other persons interested in the property are joined. (Rules
of Court, Rule 69, Section 1)
c. Two (2) stages in every action for partition
Two Stages of the Action
1.) First Stage Determination of the propriety of partition
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). Appeal period 30 days.
2.) Second Stage The actual partitioning of the subject property
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. Appeal period 15
days
d. Order of partition and partition by agreement
Rule 69, Sec. 2. Order for partition, and partition by agreement thereunder.
If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition
of the real estate among all the parties in interest. Thereupon the parties may, if they are able to
agree, make the partition among themselves by proper instruments of conveyance, and the court
shall confirm the partition so agreed upon by all the parties, and such partition, together with
the order of the court confirming the same, shall be recorded in the registry of deeds of the place
in which the property is situated.
e. Partition by commissioners; Appointment of commissioners, Commissioners report; Court
action upon commissioners report
f. Judgment and its effects
Rule 69, Sec. 11. The judgment and its effect; copy to be recorded in registry of deeds.
If actual partition of property is made, the judgment shall state definitely, by metes and bounds
and adequate description, the particular portion of the real estate assigned to each party, and
the effect of the judgment shall be to vest in each party to the action in severalty the portion of
the real estate assigned to him. If the whole property is assigned to one of the parties upon his
paying to the others the sum or sums ordered by the court, the judgment shall state the fact of
such payment and of the assignment of the real estate to the party making the payment, and the
effect of the judgment shall be to vest in the party making the payment the whole of the real
estate free from any interest on the part of the other parties to the action. If the property is sold
and the sale confirmed by the court, the judgment shall state the name of the purchaser or
purchasers and a definite description of the parcels of real estate sold to each purchaser, and the
effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the
payment or payments, free from the claims of any of the parties to the action. A certified copy of
the judgment shall in either case be recorded in the registry of deeds of the place in which the
real estate is situated, and the expenses of such recording shall be taxed as part of the costs of
the action.
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physical possession by the plaintiff is not alleged because the defendant withholds
possession after the expiration of his right to possess.
c. Demand. In FE, no demand to vacate is required by law before filing of the
action. In UD, demand is jurisdictional.
d. Computation of period. In FE, the one year period is counted from actual entry
into the land. In UD, the one year period is counted from the last demand
Estoppel to question jurisdiction
Where the action for FEUD was filed with the RTC, but the defendant did not move to dismiss on
such ground, filed his answer and went to trial, and thereafter the trial court rendered judgment,
estoppel by laches has already set in and precludes the judgment from assailing the judgment on
such ground (Velarma vs. CA, 252 SCRA 406 [1996]).
Sufficiency of complaint for unlawful detainer
A simple allegation that the defendant is unlawfully withholding the property is sufficient without
necessarily employing the terminology of the law. In an unlawful detainer case, the defendants
possession was originally lawful but ceased to be so by the expiration of his right to possess
(Barba vs. CA, G.R. No. 126638, Feb. 6, 2002).
When there are several demands to vacate
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).
When to count one-year period in forcible entry
The one year period within which to bring an action for forcible entry is generally counted from
the date of ACTUAL ENTRY on the land, except that when entry was made thru stealth, the one
year period should be counted from the time the plaintiff made the demand to defendant to
vacate the land upon learning of such dispossession (Ballesterso vs. Abion, supra).
Stealth any secret, sly or clandestine act to avoid discovery and to gain entrance into or remain
within the residence of another without permission
(Ong vs. Parel, 355 SCRA 691 [2001]).
Effect of claim of ownership on MTC jurisdiction
Hilario vs. CA, 260 SCRA 420 (1996)
a. All forcible entry and unlawful detainer cases have to be tried pursuant to the Revised Rule on
Summary Procedure regardless of whether or not the issue of ownership is alleged by a party.
b. Inferior courts retain jurisdiction over ejectment cases even if the question of possession
cannot be resolved without passing upon the issue of ownership subject to the same caveat that
the issue posed as to ownership could be resolved by the court for the sole purpose of
determining the issue of possession.
c. An adjudication made therein regarding the issue of ownership should be regarded as merely
PROVISIONAL and therefore would not bar or prejudice an action between the same parties
involving title to the land.
d. Jurisdiction over the subject matter is determined by the nature of the action as alleged or
pleaded in the complaint. Even where defendant alleges ownership or title in his answer, the
court will not be divested of jurisdiction. A contrary rule would pave the way for defendant to
trifle with the ejectment suit, which is summary in nature, as he could easily defeat the same
through the simple expedient of asserting ownership.
Cases that do not affect ejectment suit
Wilmont Auto Supply vs. CA, 208 SCRA 108 (1992)
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pursuant to a SPA, is a PARTY to the ejectment suit. In fact, Sec. 1, Rule 70 includes the
representative of the owner in an ejectment suit as one of the parties authorized to institute the
proceedings.
a. Definitions and Distinction
What are the kinds of actions for the recovery of possession of real property?
1. Accion interdictal - summary action for forcible entry and unlawful detainer
which is brought within one (1) year from dispossession. MTC has exclusive
jurisdiction.
2. Accion publiciana - plenary action to recover the right of possession when
dispossession has lasted for more than one year or when dispossession was
effected by means other than those mentioned in Rule 70, Sec. 1.
3. Accion reivindicatoria - action to recover ownership, including the recovery of
possession.
The possession of the defendant is The possession of the defendant is lawful from the
unlawful from the beginning; issue is beginning becomes illegal by reason of the
which party has prior de facto expiration or termination of his right to the
possession; possession of the property;
The law does not require previous Plaintiff must first make such demand which is
demand for the defendant to vacate; jurisdictional in nature;
The plaintiff must prove that he was in The plaintiff need not have been in prior physical
prior physical possession of the premises possession;
until he was deprived by the defendant;
and
The one year period is generally counted The one year period is counted from the date of last
from the date of actual entry on the demand.
property.
A plenary ordinary civil action for the recovery of the better An action for the recovery of the
right of possession (juridical possession) , must be filed exercise of ownership,
after the expiration of one year from the accrual of the particularly recovery of
cause of action or from the unlawful withholding of possession as an attribute or
possession of the realty. In other words, if at the time of incident of ownership;
the filing of the complaint more than one year had elapsed
since defendant had turned plaintiff out of possession or
defendants possession had become illegal, the action will
be not one of forcible entry or unlawful detainer but
anaccion publiciana (Valdez vs, CA, GR 132424, May 2,
2006).
The basis of the recovery of possession is the plaintiffs real The basis for the recovery of
right of possession or jus possessionis, which is the right to possession is ownership itself.
the possession of the real property independent of
ownership.
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What is the effect of failure of the defendant to make the periodic deposit?
The RTC, 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.
(Rule 70, Sec. 19).
j. How to stay the immediate execution of judgment
To stay the immediate execution of the judgment in an ejectment case, the defendant must
perfect an appeal, file a supersedeas bond, and periodically deposit the rentals becoming due
during the pendency of the appeal. Otherwise, the writ of execution will issue upon motion of
the plaintiff. (Acbang vs. Luczon, G.R. No. 164246, January 15, 2014) LPB
Is the judgment of the RTC immediately executory?
Yes, under Rule 70, Sec. 21.
Rule 70, Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court. The
judgment of the Regional Trial Court against the defendant shall be immediately executory,
without prejudice to a further appeal that may be taken therefrom.
Section 21, Rule 70 provides that the judgment of the RTC in ejectment cases appealed to it shall
be immediately executory and can be enforced despite the perfection of an appeal to a higher
court. To avoid such immediate execution, the defendant may appeal said judgment to the CA
and therein apply for a writ of preliminary injunction. In this case, the decisions of the MTCC, of
the RTC, and of the CA, unanimously recognized the right of the ATO to possession of the property
and the corresponding obligation of Miaque to immediately vacate the subject premises. This
means that the MTCC, the RTC, and the Court of Appeals all ruled that Miaque does not have any
right to continue in possession of the said premises. It is therefore puzzling how the Court of
Appeals justified its issuance of the writ of preliminary injunction with the sweeping statement
that Miaque "appears to have a clear legal right to hold on to the premises leased by him from
ATO at least until such time when he shall have been duly ejected therefrom by a writ of
execution of judgment caused to be issued by the MTCC. (Air Transportation Office (ATO) vs.
Hon. Court Of Appeals (Nineteenth Division) and Bernie G. Miaque, G.R. No. 173616, June 25,
2014)
k. Summary procedure, prohibited pleadings
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 is 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 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.
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The purpose is to compensate for the benefit The purpose is to punish, to vindicate the
of a party; authority of the court and protect its outraged
dignity;
The rules of procedure governing contempt Should be conducted in accordance with the
proceedings or criminal prosecutions principles and rules applicable to criminal
ordinarily are inapplicable to civil contempt cases, insofar as such procedure is consistent
proceedings. with the summary nature of contempt
proceedings.
Acts constituting direct contempt are: Acts constituting indirect contempt are:
a) Misbehavior in the presence of or so near (a) Misbehavior as an officer of a court in the
the court as to obstruct or interrupt the performance of his official duties or in his
proceedings before it; official transactions;
b) Disrespect toward the court; (b) Disobedience of or resistance to a lawful
c) Offensive personalities towards others; writ, process, order, or judgment of a court,
including the act of a person who, after being
d) Refusal to be sworn as a witness or to dispossessed or ejected from any real
answer as a witness; property by the judgment or process of any
e) Refusal to subscribe an affidavit or court of competent jurisdiction, enters or
deposition when lawfully required to do attempts or induces another to enter into or
so(Sec. 1) ; upon such real property, for the purpose of
executing acts of ownership or possession, or
f) Acts of a party or a counsel which constitute in any manner disturbs the possession given to
willful and deliberate forum shopping(Sec. 1, the person adjudged to be entitled thereto;
Rule 7) ;
(c) Any abuse of or any unlawful interference
g) Unfounded accusations or allegations or with the processes or proceedings of a court
words in a pleading tending to embarrass the not constituting direct contempt under
court or to bring it into disrepute(Re: Letter section 1 of this Rule;
dated 21 Feb. 2005 of Atty. Noel Sorreda, 464
SCRA 32) ; (d) Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade the
administration of justice;
(e) Assuming to be an attorney or an officer of
a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
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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.
What are the two ways to initiate indirect contempt?
1. SHOW CAUSE ORDER. Court issues order motu proprio or makes formal charge
requiring the respondent to show cause why he should not be punished for
contempt. The contempt contemplated is usually in the nature of a criminal
contempt.
2. VERIFIED PETITION. Party litigant or any aggrieved party files a verified petition
for that purpose, which should comply with the requirements for filing initiatory
pleadings in civil actions.
Before one may be convicted of indirect contempt, there must be compliance with the
following requisites: (a) a charge in writing to be filed; (b) an opportunity for respondent to
comment thereon within such period as may be fixed by the court; and (c) an opportunity to
be heard by himself or by counsel. (Tokio Marine Malayan Insurance Company Inc. vs. Valdez,
G.R. No. 150107, January 28, 2008).
f. Acts deemed punishable as indirect contempt
Grounds for Indirect Contempt:
1. Misbehavior of an officer of a court in the performance of his official duties or
in his official transactions.
2. Disobedience or resistance to a lawful writ, process, order or judgment of a
court, or any unauthorized intrusion to any real property after being ejected;
3. Any abuse or any unlawful interference with the proceeding of a court not
constituting indirect contempt;
4. Any improper conduct tending, directly or indirectly to impede, obstruct, or
degrade the administration of justice;
5. Assuming to be an attorney or an officer of the court without authority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a person or property in the custody of an
officer. (Rule 71, Section 3.)
Grounds for Direct Contempt:
1. Disrespect toward the court;
2. Offensive personalities toward others
3. Refusal to be sworn or to answer as witness or to subscribe an affidavit or
deposition
4. Misbehavior in the presence of or so near a court as to obstruct or interrupt the
proceedings. (Rule 71, Section 1)
Where should the charge for indirect contempt be filed?
1. If committed against a RTC or a court of equivalent or higher rank, or against an
officer appointed by it, the charge may be filed with the RTC.
2. If committed against the MTC, the charge may be filed with the RTC of the place
in which the MTC is sitting; but the proceedings may also be instituted in such MTC
subject to appeal to the RTC of such place in the same manner as provided in Rule
71, Sec. 11. (Rule 71, Sec. 5)
3. If committed against a person or body exercising quasi judicial powers, the RTC
of the
place wherein the contempt has been committed shall have jurisdiction over such
charges. (Rule 71, Sec. 12)
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