DEAN JARA LECTURE NOTES IN REMEDIAL LAW 2013
Plea of guilty – in civil cases, specific denial is not applied, if
pleaded, the court cannot compel the defendant to explain
why plea of guilt was given.
Denial without specificity – in civil cases, it is tantamount
to admission of allegations in the pleadings, and thus could
lead to a judgment on the pleadings. This is not allowed in
criminal cases.
Quantum of evidence – guilt should be proof beyond
reasonable doubt in criminal cases, while only preponderance
of evidence is required in civil cases.
Jurisdiction of courts in civil actions, laws governing:
1. Constitution
2. Judiciary Act of 1848 (RA 296)
3. BP 129 and its amendments
4. Law creating the family court (1997)
5. Law creating the Sandiganbayan
General Law on jurisdiction: BP 129 and its amendments.
Note: The cases formerly taken in cognizance by the abolished
Juvenile and Domestic Relations Court came under the
jurisdiction of the RTC under BP 129, which is in the concept
of exclusive original jurisdiction. Then
came the special law creating the Family Court, which provides
that the said court has exclusive original jurisdiction over
cases involving marriage, adoption, cases involving minors,
habeas corpus involving minors, and other civil or criminal
cases involving minors.
BP 129 vs. special law on jurisdiction – the special law
generally prevails. (General law shall give way to special law,
except if the special law specifically provides otherwise or
that the law allows parties to stipulate pertaining to the
matter of jurisdiction.)
Jurisdiction is a matter of substantive law.
This is not necessarily true. (Dean Jara) Substantive law deals
with jurisdiction over the subject matter and/or
jurisdiction over the nature of the action. This is the
aspect of jurisdiction governed by BP 129 and the other
substantive laws on jurisdiction.
Other aspects of jurisdiction governed by procedural law:
Jurisdiction over the person of the litigants – governed by
the RoC
Jurisdiction over the property involved – governed by the
RoC
Jurisdiction over the issues of the case – governed by the
RoC
Thus, jurisdiction as part of substantive law is limited to a
court to decide the case insofar as the subject matter of the
case or the nature of the action. Jurisdiction over the
litigants, the issues of the case and property involved are
governed mostly by procedural law, mostly under the Rules of
Court.
BP 129 does not mention anything about the SC. It begins with
the CA downwards, up to the MTC and the Sharia Courts.
Supreme Court exercises its authority from the
Constitution. In the Constitution, the SC exercises original
jurisdiction and appellate jurisdiction. But the Constitution
does not say that original jurisdiction of the SC is
exclusive, nor about the appellate jurisdiction being
exclusive. The basis for this is in the old Judiciary Act of
1948 where SC jurisdiction is delineated in a very
thorough manner, providing exclusive original and
appellate jurisdiction of the SC. Note that BP 129 did not
repeal the old judiciary act and hence it is still in force.
What BP 129 did repeal are provisions of Judiciary Act of 1948
that are inconsistent with BP 129. The best argument to
support this statement is Sec. 9 in BP 129.
Sec. 9 BP 129 last sub¶ – provides for the
jurisdiction of the CA.
“3. Exclusive appellate jurisdiction over all final
judgments, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commission,
including the Securities and Exchange
Commission, the Social Security Commission, the
Employees Compensation Commission and the
Civil Service Commission, Except those falling
within the appellate jurisdiction of the
Supreme Court in accordance with the
Constitution, the Labor Code of the
Philippines under Presidential Decree No.
442, as amended, the provisions of this Act,
and of subparagraph (1) of the third
paragraph and subparagraph 4 of the fourth
paragraph of Section 17 of the Judiciary Act
of 1948.”
The Constitution provides for a limited number of cases over
which the SC can exercise original jurisdiction and limited
number of cases over which it can exercise appellate
jurisdiction. These are not exclusive.
Art. VIII Sec. 5
Section 5. The Supreme Court shall have the
following powers:
(1) Exercise original jurisdiction over cases
affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and
habeas corpus.
(2) Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders
of lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or
executive agreement, law, presidential
 decree, proclamation, order, instruction,
ordinance, or regulation is in question.
(b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto.
(c) All cases in which the jurisdiction of any
lower court is in issue.
(d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
(e) All cases in which only an error or
question of law is involved.
(3) Assign temporarily judges of lower courts to
other stations as public interest may require.
Such temporary assignment shall not exceed six
months without the consent of the judge
concerned.
(4) Order a change of venue or place of trial to
avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice, and procedure in all courts,
the admission to the practice of law, the
integrated bar, and legal assistance to the
under-privileged. Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless
disapproved by the Supreme Court.
(6) Appoint all officials and employees of the
Judiciary in accordance with the Civil Service
Law.
The Constitution provides that the SC has original
jurisdiction over cases involving ambassadors, other
public ministers and consuls, and over petitions for
certiorari, prohibition, mandamus, quo warranto, and
habeas corpus. Reading the 1987 Constitution with BP
129, we will find out that the same authority is given by
BP 129 to other courts.
SC’s Exclusive original jurisdiction:
Petitions for certiorari, prohibition or mandamus against CA,
COMELEC, CoA and Sandiganbayan
Concurrent Jurisdiction: (Subject to Doctrine of Hierarchy
of Courts and direct recourse only in cases when redress
desired cannot be obtained in the lower courts or when it
serves the broader interest of justice)
With RTC:
Cases affecting ambassadors, other public ministers and
Consuls
With CA:
Petitions for certiorari, prohibition or mandamus against RTC
Petitions for Writ of Kalikasan
With RTC and CA:
Petition for habeas corpus
Petition for quo warranto
Petitions for certiorari, prohibition or mandamus against MTC
and other bodies
With RTC, CA and Sandiganbayan:
Petition for Writ of Amparo
Petition for Writ of Habeas Data
Appellate Jurisdiction:
By way of Certiorari under Rule 45 against CA,
Sandiganbayan, RTC (pure questions of law only), CTA en banc
and cases on the constitutionality and validity of a law or
treaty, international agreement or executive agreement,
presidential decree, proclamation order, instruction, ordinance
or regulation, legality of a tax, impost, assessment, toll or
penalty, jurisdiction of a lower court.
BP 129 provides that CA exercises original jurisdiction over
certiorari, prohibition, mandamus, quo warranto and habeas
corpus.
BP 129 vests jurisdiction to the RTC to exercises original
jurisdiction over certiorari, prohibition, mandamus, quo
warranto and habeas corpus.
In effect, there are 3 courts in the judiciary which exercise
jurisdictions over certiorari, prohibition, mandamus, quo
warranto and habeas corpus: SC, CA and RTC. Thus,
theoretically, if one has been wronged due to grave abuse of
discretion amounting to lack of jurisdiction, petition for
mandamus can be filed with the SC immediately, based on the
1987 Constitution and BP 129.
However, Certiorari, Prohibition and Mandamus have
been greatly limited by certain procedural rules. The
limitation is known as hierarchy of courts. (See Rule 65)
Thus, while theoretically a petition can be filed directly to the
SC, one should follow the procedure under the principle of
hierarchy of courts. In Rule 65, it is expressly provided that
petitions for Certiorari, Prohibition and Mandamus (and even
Quo Warranto. Dean Jara) should be filed directly only with
two courts, a RTC or the CA. On analysis, Sec. 4 Rule 65 is a
severe limitation on the right of an aggrieved party to avail of
Certiorari, Prohibition and Mandamus as provided for in
the Constitution.
Rule 65, Sec. 4. Where petition filed.
The petition may be filed not later than sixty (60) days from
notice of the judgment, order or resolution sought to be
assailed in the Supreme Court or, if it relates to the acts or
omissions of a lower court or of a corporation, board,
officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the
Supreme Court. It may also be filed in the Court of Appeals
whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its
jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, and unless otherwise provided by law
or these Rules, the petition shall be filed in and cognizable
only by the Court of Appeals.
Among the basic principles of the enactment of BP 129 was to
do away with the concept of concurrent jurisdiction. BP 129
has not been able to do away entirely with concurrent
jurisdiction. BP 129 does not use the term concurrent in
vesting jurisdiction upon courts. The law classifies jurisdiction
into original jurisdiction; appellate jurisdiction; exclusive
original jurisdiction, and exclusive appellate jurisdiction; unlike
that under the old Judiciary Act of 1948 where the law
expressly contained provisions that conferred concurrent
jurisdiction over different cases upon different courts, which
resulted in confusion. Generally, BP 129 has been able to do
away with the concept of concurrence of jurisdiction, except
with respect to certiorari, prohibition, mandamus, quo
warranto and habeas corpus. Since the Constitution and BP 129
allocate original jurisdiction upon 3 courts, then it is safe to
conclude that these 3 courts exercise original and concurrent
jurisdiction over these petitions.
BP 129 WITH RESPECT TO THE COURT OF APPEALS:
Exclusive Original Jurisdiction – only cases of annulment of
judgment of an RTC.
Appellate Jurisdiction:
Ordinary appeal from RTC and Family Courts
Petition for review from RTC in exercise of its appellate
jurisdiction
Petition for review from decisions, resolutions, orders or
awards from CSC, Ombudsman in administrative cases and
other quasi-judicial agencies in exercise of its quasi-judicial
functions as mentioned in Sec. 1 Rule 43.
Concurrent Jurisdiction: With SC:
Petitions for certiorari, prohibition or mandamus against the
RTC
Petitions for Writ of Kalikasan
Petition for Mandamus against NLRC (But St. Martin Funeral
Homes vs. CA says petition should be filed in CA instead of
SC)
Concurrent Jurisdiction with RTC and SC:
Petition for habeas corpus
Petition for Quo warranto
Petitions for certiorari, prohibition or mandamus against the
MTC and other bodies
Concurrent Jurisdiction with RTC and Sandiganbayan:
Petition for writ of Amparo
Petition for habeas data
The SC, despite being the supreme court of the land, is not a
court of general jurisdiction, it exercises only limited original
jurisdiction as provided for under the Constitution. It is
generally not a trier of facts. The same is true in the CA. In
Sec. 9 BP 129, the CA’s authority is very limited.
CA has exclusive original jurisdiction over Annulment of
Judgment of an RTC under Rule 47. Does it mean that the
CA can annul a judgment rendered by an MTC?
Since the CA is a court of limited jurisdiction, it is allowed to
annul judgment only judgments from the RTC. It cannot annul
decisions of an MTC.
Would it mean that the judgment of an MTC is immune
from annulment of its judgment?
Yes. The decision of an RTC can be annulled by the CA. But
the decision of an MTC is immune from annulment by the CA.
But, the decision of an MTC can be annulled by an RTC. It is
not so provided in BP 129 that an RTC can annul a judgment of
an MTC, but it is provided for under Section 10 of Rule 47 on
Annulment of Judgment in the Rules. Thus, jurisdiction is
vested in the RTC under the Rules for it to be able to annul
judgments rendered by an MTC.
Can we then challenge the jurisdiction of RTC as BP 129, a
special law, should take precedence over a substantive
law, as BP 129 does not expressly give the RTC the
authority to annul judgment of an MTC? Why?
We cannot. This is because, under BP 129 there is an allocation
to the RTC of jurisdiction to entertain and decide all kinds of
actions which are not especially given to other courts. This is
the provision why an RTC can annul judgments of the MTC as
well as the reason why the RTC is considered as the real court
of general jurisdiction in our justice system. Since no
substantive law has allocated to other courts the jurisdiction
to annul judgments of an MTC, it follows now that the RTC is
the proper court to decide on the matter as provided under BP
129 for an RTC to entertain and decide all kinds of actions not
especially given to other courts.
Islamic Da'wah Case – BP 129
The SC traced the history of annulment of judgment as an
action. SC mentioned that before BP 129, the SC had
recognized the regularity and propriety of filing a petition to
annul an MTC judgment in the RTC.
Can an RTC entertain and decide on cases of annulment
of judgments of another RTC prior to BP 129? Why?
Before BP 129, SC held yes, because the RTC is a court of
general jurisdiction. This is the reason why in BP 129,
Congress deemed it necessary to incorporate a provision
giving exclusive authority to the CA to annul a judgment
rendered by the RTC to do away with the anomalous situation
where an RTC is able to annul judgments rendered by another
RTC, as there was no specific substantive law prior to BP 129
which allocated to other courts the authority to annul
judgments of the RTC.
A person need not be a party to the judgment sought to be
annulled. What is essential is that he can prove his allegation
that the judgment was obtained by the use of fraud and
collusion and he would be adversely affected thereby (Islamic
Da’wah Council v. CA, G.R. No. 80892, Sept. 29, 1989).
Can the SC annul the judgment of the CA?
No. The Constitution and BP 129 does not provide authority
for the SC to annul judgments rendered by the CA. There is
no substantive law or special law authorizing SC to annul
judgments rendered by the CA.
It does not mean that the decisions of the CA are immune
from annulment. The SC could still exercise its equity
jurisdiction, most likely under Rule 65, in order to annul a
judgment of the CA, based on the same grounds given under
Rule 47, extrinsic fraud and lack of jurisdiction.
Fraud is regarded as extrinsic where it prevents a party from
having a trial or from preventing a party from having a trial or
from presenting his entire case to the court, or where it
operates upon matters pertaining not to the judgment itself
but to the manner in which it is procured (Alaban v. CA, GR
no. 156021, September 23, 2005).
Extrinsic fraud or collateral fraud– not a valid ground if it
was availed of, or could have been availed of in a motion for
new trial or petition for relief.
Lack of jurisdiction as a ground for annulment of judgment
refers to either lack of jurisdiction over the person of the
defending party or over the subject matter of the claim.
Lack of jurisdiction over the subject matter and over
the person – May be barred by estoppels by laches,
which is that failure to do something which should be
done or to claim or enforce a right at a proper time or a
neglect to do something which one should do or to seek
or enforce a right at a proper time. (1998 Bar Question)
What is annulment of judgment?
A: It is a remedy in law independent of the case where the
judgment sought to be annulled was rendered. The purpose of
such action is to have the final and executor judgment set
aside so that there will be renewal of litigation.
Note: A co-equal court cannot annul the final judgment
of a similar court. CA has exclusive jurisdiction over
actions for annulment of judgments of RTC. An action
to annul a judgment or final order of MTC shall be filed
in the RTC having jurisdiction in the former and it shall
be treated as an ordinary civil action. (Secs. 1 &10, Rule
47).
Q: When may it be availed of?
A: The remedy of annulment of judgment may be availed of
when the ordinary remedies of new trial, appeal, petition for
relief or other appropriate remedies are no longer available
through no fault of the petitioner (Sec. 1, Rule 47).
Q: Who may avail this remedy?
A: A person need not be a party to the judgment sought to be
annulled. What is essential is that he can prove his allegation
that the judgment was obtained by the use of fraud and
collusion and he would be adversely affected thereby (Islamic
Da’wah Council v. CA, G.R. No. 80892, Sept. 29, 1989).
The extraordinary action to annul a final judgment is
restricted to the grounds provided by law to prevent it from
being used by a losing party to make a mockery of a duly
promulgated decision that has long become final and
executory.
Q: Where should the petition be filed?
A:
Judgments of RTC Judgments of MTC
Filed with the CA Filed with the RTC
Basis – It has exclusive Basis – RTC as a court of
original jurisdiction over said general jurisdiction under
action under Sec. 9 (2), BP Sec. 19 (6), BP 129
129
CA may dismiss the case RTC has no such discretion.
outright; it has the It is required to consider it
discretion on whether or not as an ordinary civil action.
to entertain the petition.
If a judgment of an MTC can be the subject of annulment
by CA or RTC as the case may be, can we also seek
annulment of the decisions by a quasi-judicial or
administrative body?
Under BP 129, annulment of judgment, as procedurally
explained in Rule 47, does not extend to the quasi-judicial or
administrative body, unless such provision was allowed by the
charter of such administrative or quasi-judicial body.
Rule 47 refers to an action filed by a petitioner to annul a
judgment rendered by an RTC in a civil case. This is what
literally BP 129 provided where CA is given the authority
to annul decisions made by an RTC in a civil action.
Therefore, if the action is not a civil action or rendered
by a quasi-judicial or administrative body, we cannot use
Rule 47. (possible Bar Q area)
Since Rule 47 says that the annulment contemplated in
BP 129 refers to a judgment in a civil action, does it mean
to say that the judgment of an RTC acting as a criminal
court cannot be subject to annulment of judgment by the
CA under Rule 47?
No. If the judgment of the RTC is a judgment in a criminal
case, we cannot use Rule 47 as it is specifically stated in the
said rule that annulment of judgment is availing only to civil
cases decided by the RTC. Rule 47 is not a remedy to annul
decisions or judgments rendered by the RTC as a criminal
court. A decision of an RTC in a criminal case can be
annulled by filing a case for habeas corpus. Petition for
habeas corpus is the equivalent in criminal cases of petition
for annulment of judgments in civil cases.
An RTC could act as a civil and criminal court. It exercises
original actions over both actions. RTC decisions in civil actions
could be the subject of annulment by CA under rule 47, but
Rule 47 does not apply if the decision is one rendered from
criminal cases. The remedy in order to annul a judgment in
criminal cases is by filing a petition for habeas corpus. BP 129
is very clear under Rule 47. What can be annulled under Rule
47 are judgments in civil cases only.
Is there a difference between Rule 47 (petition for
annulment of judgment rendered by an RTC in a civil
case) and petition for habeas corpus?
There are substantial differences. Annulment under Rule 47 is
a direct attack of a final and executory judgment, the only
purpose of which is to nullify and set aside a court decision in
a civil case. But in a criminal case where the decision of the
RTC may not be valid due to lack of jurisdiction or extrinsic
fraud, the remedy is petition for habeas corpus, which is an
indirect attack on the judgment of an RTC in the criminal
case. When a habeas corpus petition is filed in order to nullify
a decision on a criminal case, the principal relief which the
petitioner seeks is to declare the petitioner has been deprived
of his liberty unlawfully. It is not principally to set aside the
judgment rendered by the RTC in a criminal case.
The remedy of petition for habeas corpus in criminal case are
more advantageous than that of an annulment of judgment in
civil cases. This is because an annulment of judgment in civil
cases is a direct attack against the judgment in the civil case,
while in the criminal cases, the detainee can challenge the
validity of the judgment of conviction, although he is not
attacking directly the validity of the said judgment of
conviction. He is attacking the validity of the deprivation of
his liberty.
What is a collateral attack on judgment?
A: It is made in another action to obtain a different
relief; an attack on the judgment is made as an incident
in said action. This is proper only when the judgment, on
its face is null and void, as where it is patent that the
court which rendered such judgment has no
jurisdiction(Co vs. Court of Appeals, 196 SCRA 705).
Note that Rule 47 is inserted in between the rules governing
appeals. The procedure for appeal starts with Rule 40 up to 56.
Annulment of judgment has nothing to do with appeals as it is
a civil action. Annulment of judgment is an original action that
can be filed in the RTC and CA. And, in Rule 47, when
particularly applied to a petition for annulment commenced
before the CA, you will notice that some of the features of a
special civil action are carried by a petition to annul the
judgment filed with the CA. For instance, if a petition to annul
a judgment of an RTC in a civil case is filed in the CA, the CA
has the authority to outrightly dismiss the petition for lack of
merit. This is similar to Rule 65, where the petition for
certiorari, prohibition or mandamus can be outrightly
dismissed if it is not meritorious on its face.
What if the decision in the RTC was already final and
executory, can the petition to annul judgment filed in
the CA stop the execution of the said judgment?
No. The petition will not stop the prevailing party from
moving for the execution of the final and executory judgment
in the civil case, notwithstanding the commencement of the
petition to have the judgment in the civil case annulled. The
only remedies available to a petitioner for annulment of
judgment of an RTC in the CA is to apply for the provisional
remedy of PI or TRO to stop the RTC from proceeding with
the execution of the said judgment.
Under Rule 47 in relation to BP 129 in the case of
annulment of judgments of an RTC filed in the CA, is it
correct that only the litigants thereto can file the
petition to annul a judgment in a civil case?
No. As held in the case of Islamic Da'wah vs. CA, the petition
for annulment of judgment in BP 129 and Rule 47 does not
prohibit a stranger from filing a petition to annul judgment.
He can do so, so long as he can show he will be prejudiced by
the judgment sought to be annulled.
Requirements:
1. All other Remedies of motion for new trial, petition for
relief, appeal and other remedies are no longer available or to
do so will not redound to his benefit.
2. Through no fault of petitioner, remedies were unavailing
3. Petitioner is a stranger to the case (Islamic Da’wah case)
In Islamic Da’wah, in allowing a stranger to file annul a
judgment, then he need not seek other remedies since
the stranger to a case cannot possibly avail of remedies
that are available only to a litigant in a case.
While CA has authority to outrightly dismiss annulment of
judgment, RTC cannot. Insofar as RTC is concerned, petition
to annulment of a judgment by an MTC should be treated as
any normal civil case.
The annulment may be based only on the
grounds of extrinsic fraud and lack of
jurisdiction.
Extrinsic fraud shall not be a valid ground if it
was availed of, or could have been availed of, in a
motion for new trial or petition for relief.
Judicial record must be discredited.
Judgment of the court must be discredited
by such impeachment. In BP 129, there are no
grounds for annulment mentioned at all.
They are mentioned in Rule 47 and Rule 132.
Rule 132 Sec. 29 . How judicial record impeached.
— Any judicial record may be impeached by
evidence of: (a) want of jurisdiction in the
court or judicial officer, (b) collusion
between the parties, or (c) fraud in the party
offering the record, in respect to the
proceedings.

In Rule 47, if the judgment is annulled, it is declared void by

3 grounds under Rule 132 to impeach judgment:
the court. It is unenforceable, or if already enforced, CA can
1. lack of jurisdiction
order restitution if that is still possible.
2. extrinsic fraud
3. collusion

Rule 47 in relation to BP 129 and Rule 132:

Grounds under Rule 47to impeach judgment:
There are no grounds for annulment mentioned in BP 129.
1. absence of jurisdiction over the subject matter
2. absence of jurisdiction over the person of the accused
Rule 47 Sec. 2. Grounds for annulment.
3. Extrinsic fraud (this encompasses collusion as found under
Rule 132)
Thus, there is no conflict between Rule 132 and Rule 47. What are the possessory actions on real property?
A:
Accion Accion Publiciana Accion
JURISDICTION OF THE RTC Interdictal Reinvindicatoria
Factors determining jurisdiction: Summary action A plenary action An action for the
1. Whether or not action is capable of pecuniary estimation for the recovery for the recovery recovery of
2. whether or not the action is a real action of physical of the real right ownership, which
possession of possession necessarily
3. if the amount is known, whether the amount is within the
where the when the includes the
ambit of the jurisdictional amount
dispossession dispossession recovery of
has not lasted has lasted for possession.
Incapable of pecuniary estimation – not all actions for more than 1 more than 1
incapable of pecuniary estimation are cognizable by RTC year. year.
Note: Ex. All cases of RTC has RTC has
Under BP 129, these actions are not exclusively cognizable by forcible entry jurisdiction if jurisdiction if
an RTC: and unlawful the value of the the value of the
1. Annulment of judgment rendered by RTC – not capable detainer property property
of pecuniary estimation, cognizable only by the CA irrespective of exceeds P20,000 exceeds P20,000
2. Annulment of arbitral award by barangay court acting the amount of or P50,000 in or P50,000 in
as arbitral body – cognizable by MTC, as provided by damages or Metro Manila. Metro Manila.
LGC, although incapable of pecuniary estimation. unpaid rentals MTC has MTC has
3. Certiorari, prohibition and mandamus – not exclusively sought to be jurisdiction if jurisdiction if
cognizable by RTC, although incapable of pecuniary recovered should the value of the the value of the
estimation. be brought to property does property does
the MTC. not exceed the not exceed the
above amounts. above amounts.
JURISDICTIN IN REAL ACTIONS – TITLE TO OR
POSSESSION OF PROPERTY Accion reinvindicatoria and accion publiciana – RTC
This area is qualified by BP 129 as amended as it has expanded exercising original jurisdiction if property is worth above
the jurisdiction of MTCs. 20k/50k, as the case may be.
Is it possible a real action is at the same time one
incapable of pecuniary estimation?
Yes. A good example of a real action that is incapable of
pecuniary estimation is foreclosure of real estate
mortgage. It is not capable of pecuniary estimation as
the determinative issue here is the right of the
mortgagee to foreclose, not the value of the property.
What do we do in determining jurisdiction of an action is
a real action but is incapable of pecuniary estimation?
What factor will be determinative to determine
jurisdiction of the court?
SC held that if the action carries the feature of real action and
one incapable of pecuniary estimation, then the determinative
factor is the feature of incapable of pecuniary estimation.
Thus, RTC has exclusive jurisdiction of foreclosure actions,
even if the assessed value of the property involved is less
than the jurisdictional amount of the RTC. As long as the
action is foreclosure of mortgage, the RTC has jurisdiction.
The feature of foreclosure of mortgage as a real action will
only be important in determining the venue, not the
jurisdiction.
A similar action which applies the same principle is
expropriation. Expropriation of a piece of land is one involving
real action, but it does not take into account the assessed
value of the land in determining jurisdiction. Thus, it is real
action, although incapable of pecuniary estimation, as the
right to expropriate is the main issue, not the value of the
land involved.
JURISDICTION IN MONEY CLAIMS
When it comes to personal actions, under BP 129, the
determining factor will be the amount sought to be recovered
if it is a claim for money, or if it is recovery of personal
property, it is the value of the personal property as alleged in
the complaint.
The determining factor for jurisdiction in a pure collection suit
is the principal sought to be recovered, exclusive of charges
interest, attorney’s fees, damages etc. If the amount sought
to be recovered by the plaintiff is 1M, it may be cognizable by
the RTC if it represents the aggregate amount of the
claim, the principal amount being within the jurisdictional
value of the MTC. If the principal is only 200k and the rest are
charges, damages, interest, etc., then the MTC has
jurisdiction over the case.
What if the plaintiff seeks only recovery of damages
inclusive of actual, moral, nominal, etc.?
Ex. Plaintiff sought 100K actual, 500K moral and 500k
exemplary damages. How do we determine jurisdiction
here?
Complaints purely for damages = the aggregate (total) amount
of damages will determine jurisdiction, not the specific
amounts claimed. Thus, in the example, the RTC has
jurisdiction. Even if the complaint specified the amount of
damages for each aspect, the aggregate amount shall
determine the jurisdiction.
JURISDICTION OVER RECOVERY OF PERSONAL PROPERTY
BP 129 as amended takes into account the assessed value only
in the case of real properties. Personal property values have
no bearing in jurisdiction. The value as stated in the
complaint shall be determinative (whether the figure is
true or not).
Ex. Plaintiff sought recovery (replevin) of the car,
claiming that is worth 800k (even if it is not true).If
defendant challenges the value, stating the car is 30
years old, and willing to submit evidence to show true
value, will the court entertain the defendant’s motion?
No. The court shall rely only on the allegations in the
complaint. Once the court acquires jurisdiction, it cannot be
ousted; the court proceeds with the case until finally
adjudicated.
What if it is found during trial that the car is actually
worth far less than the value claimed? Will the court
remand the case to the lower court?
No. It will continue to hear until final judgment. There will be
adherence of jurisdiction of the court over the case. The
court will continue trying the case until it is finally
adjudicated.
The only way to oust jurisdiction in this regard is if
Congress files a law abandoning the principle of
adherence of jurisdiction over a particular case. Dean
Jara
With respect to MTCs, notwithstanding the expanded
jurisdiction thereof, practically all cases decided by the RTC
pertaining to personal property can also be decided by the
MTC, depending only on the value of the property involved.
Ex. Estate proceedings, accion reinvindicatoria, accion
publiciana
Note: MTC is still a court of limited jurisdiction despite the
expanded jurisdiction under BP 129 as amended. It can try
only the cases given to it under substantive law. The provision
in BP 129 making the RTCs courts of general jurisdiction is not
given to MTCs. BP 129 stated explicitly that the RTC shall have
exclusive original jurisdiction over all actions that are not
specially assigned to any other court. This is not contained in
the allocation of jurisdiction of MTCs.
Vesting of authority to MTCs – Sec. 33, the Totality test, is
used in determining jurisdiction
Totality test is a proviso for ascertainment of
jurisdiction, more encompassing than that provided in
the Rules.
Difference in Totality Test in the Rules vs. Totality Test
in BP 129:
RoC – totality test in Rule 2 concerns causes of action for
money, as to the amount. The totality of the money
claims shall be determinative of jurisdiction of courts.
BP 129 – the totality test refers to of all claims or causes
of actions in a complaint, whether they refer to the same
or different parties or arising out of the same or
differing transactions. This is more encompassing in
scope.

BP 129 has contained therein the provision on delegation
of jurisdiction to the MTC and also the special
jurisdiction of the MTC.
The MTC, in its delegated jurisdiction, acts as if it were
an RTC.
Ex. MTC acts as if it was a cadastral court (usually done by
RTC). If the land registration or cadastral case is contested,
the assessed value of the contested property is determinative
of jurisdiction. If uncontested, MTC acts as a cadastral as if it
were an RTC, there being no limitation as to jurisdiction. But
BP 129 clearly states that if MTC acts as a cadastral court the
MTC’s decisions on cadastral cases shall be appealable in the
CA, not to the RTC (hierarchy of courts is not followed).
Habeas Corpus proceedings can be heard in the MTC, but
only in situations where petition was filed in the RTC, but
no judges are available in the RTC, so the petition is
transferred to an MTC wherein a judge is available. The
MTC gains jurisdiction as habeas corpus cases are urgent. In
fact, habeas corpus cases are always given special preference
by the courts; and thus, if no RTC judges are available to hear
the petition, the clerk of court in the RTC must transfer the
case to the MTC, and MTC must hear the petition promptly.
BP 129 does not authorize the filing of the habeas corpus
case directly in the MTC. Petition for habeas corpus filed in
the MTC can be challenged on jurisdictional grounds because
BP 129 does not vest unto an MTC an authority to entertain a
petition for habeas corpus. It is only under circumstances
where there are no RTC judges available to entertain a
petition for habeas corpus when an MTC judge can now
analyze and study the propriety the issuing of the writ of
habeas corpus.
SPECIAL JURISDICTION OF MTCS.
Take note that the trial court still has residual jurisdiction to
act on certain matters even if the case is already on appeal.
See
Rules 41 RoC. It is not correct to assume that if a case has
been decided by the trial court. After an appeal is perfected,
the case is now under the jurisdiction of the appellate court.
Do not assume that the case is entirely divested from the
jurisdiction of the trial court, even if there is a perfected
appeal. The trial court continues to exercise jurisdiction over
certain matters for a limited period of time in its residual
jurisdiction. After the expiration of that period, absolute
jurisdiction will now be exercised by the appellate court.
In Primary Jurisdiction, this involves quasi-judicial bodies.
What happens in primary jurisdiction is that Congress enacts a
law which vests jurisdiction unto a quasi-judicial body to try
and decide cases which are cognizable by regular courts under
BP 129. The reason why Congress enacts these laws is that
Congress feels that the quasi-judicial body is better equipped
to decide disputes of litigants in certain cases than the regular
courts.
Ex. HLURB – has exclusive original jurisdiction to adjudicate
disputes between subdivision buyer/s vs. subdivision
developers. In cases of breach of contract under the NCC on
matters pertaining to the jurisdiction of quasi-judicial bodies,
the trial court cannot take cognizance of these matters,
although BP 129 gives jurisdiction to regular courts over such
matters, given the fact that there is a substantive law vesting
jurisdiction to the HLURB to decide on such disputes. This is
because it is presumed that the HLURB is better equipped
than a regular court to decide on such cases due to its
expertise.
What if the subdivision developer filed in the MTC a
complaint for ejectment of a subdivision buyer who
allegedly violated the terms of the contract? The
subdivision developer sought to recover the property
from the buyer, among other prayers. The subdivision
buyer challenged that MTC has no jurisdiction over the
case, and that it is HLURB which is the proper body to
take cognizance of the complaint. Does HLURB have
jurisdiction over the ejectment case?
SC held that the primary jurisdiction of the HLURB does not
extend to complaints of ejectment filed by one party against
the other. In the case of primary jurisdiction vested by
substantive law to quasi-judicial bodies, the authority of the
quasi-judicial body is interpreted strictly. Ejectment could
really be a dispute between developer and buyer, but since the
complaint was for recovery of physical possession of the
property (or even accion publiciana), SC held that regular
courts should take cognizance.
Note: Complaint for ejectment by subdivision developer vs.
subdivision buyer was actually a suit for recovery of
possession of property.
Residual Jurisdiction – found in appeal cases (Rules 41 and
42); jurisdiction enjoyed by the trial court to act on certain
matters for a very limited period, even if the case is on
appeal.
Constitutional limits provided in the Constitution limiting SC’s
authority in promulgating rules:
1. uniformity in all courts of the same grade
2. speedy and inexpensive determination of the case
3. does not modify, increase or decrease substantive rights
Any rule on procedure violating any one of the limitations
given in the Constitution, the rule can be properly challenged
as to its validity and applicability.
A litigant challenged a rule on criminal procedure (Rule 115
Rights of the Accused). Litigant stated that Rule 115 is
not procedural, and modified substantive rights as
espoused in the Constitution, and should be deleted in
the RoC.
SC denied the petition. SC said that while the authority of the
SC is to promulgate rules on proceedings, practice and
procedure, and that substantive rights should not be covered
by the provisions of the Rules, SC said that it is practically
impossible for rules of procedure to be devised without
incorporating certain provisions that are dealing substantive
law. The standard is that we take the Rules as a whole, and
determine whether it is procedural in character. If the answer
is yes, and there are certain provisions speaking about
substantive rights, that should not be a justification of
deleting these provisions in the RoC.
Also, SC noted that the NCC, a substantive law, contains
procedural articles concerning court processes such as those
concerning unlawful detainer and forcible entry, but NCC still
remain a substantive law.
The civil code provisions shall not be affected by the
procedural provision in the Rules concerning the filing of
claims (Recovery of creditor of the whole debt from surviving
solidary debtors). According to the Rules, the Rules of Court
should be interpreted liberally. But the interpretation is one
not in favor of the plaintiff or defendant. The meaning of
liberal interpretation is to promote the ends of justice, to
carry out the duty of the SC under the limitations given under
the Constitution.
PLEADINGS
COMPLAINT
General Rule: A civil action is always commenced with the
filing of a complaint. This is the general rule. Some cases are
commenced by a petition, most notably in special civil actions.
The filing of a complaint has given rise to the action that
when the case is filed, the court acquires jurisdiction over the
action. The court will then have to gain jurisdiction over the
person of the defendant. Service of summons will gain
jurisdiction over the defendant. A recent decision of the SC
held that if the person filing the case is not authorized to file
the case, then the court does not acquire jurisdiction over the
person of the plaintiff, and will not acquire even the
jurisdiction to decide the case. The court can examine
whether or not the person who filed the case is authorized. If
not so authorized, the court will not acquire jurisdiction over
the person of the accused and it will not acquire the authority
to decide the case. The court will be absolutely without
jurisdiction to try and decide the case.
Amendment of the Complaint
In Complaints properly filed by the plaintiff, the plaintiff can
amend the complaint as a matter of right under Rule 10,
provided an answer has not yet been filed. (Amendment as a
matter of right). If amendment is to implead a new
defendant, the court will accept such amended complaint as it
is a matter of right. As to the new defendant, the period to
file an answer will relate to the filing of the original complaint
(Relating Back Doctrine).
But, if a new cause of action is introduced along with the new
defendant, it is not an amendment, as a new cause of action is
being included.
The classification of actions
Civil Actions
Criminal Actions
Special Civil Actions
Special proceedings
In the definition of a civil actions it is very clear that we do
not necessarily follow the definition of a cause of action as
defined in Rule 2. A cause of action is a violation of a right
belonging to the plaintiff by a defendant. For a cause of
action to accrue, the plaintiff must allege he has a right, and
then allege that the defendant had violated that right.
Elements:
Plaintiff must allege he has a right.
Plaintiff must allege the defendant has violated for that right.
The implication of given by the definition of a cause of action
is that the right holder must wait for a violation of his right
before he can have a cause of action against such person who
violated his right and have a reason to go to court. That cause
of action should always be related to the definition of a civil
action found in Section 3(a) Rule 1.
A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention
or redress of a wrong.
Rule 2 SEC. 2. Cause of action, defined.—A cause
of action is the act or omission by which a party
violates a right of another.
Civil action does not require prior violation of a right
before right holder can proceed to court. A plaintiff need
not have his right actually violated before a case can be
filed. Even a threat to violate a right gives rise to a cause
of action.
The Rules of Procedure becomes more complicated if
there are several rights that are violated by one and the
same wrongful act. If there is just one wrongful act and
there are several rights violated, how will the causes of
action accrue?
The standard given by the SC: In order to determine
whether several causes of actions will arise, if there is one
wrongful act and there are several rights that are violated, is
to determine whether these rights belong to the same
person or to different persons.
Common Standard: Determine whether these rights
belong to the same person or to different persons.
Several rights of one person violated by one and the same act
= 1 cause of action = 1 complaint.
Several rights of several persons violated by one and the same
act = several causes of action = separate complaints.
If a person drives his car negligently, and causes damage
or wrecks 3 cars, how many causes of action accrue
against him using the standard given by the court?
Using the standard, determine whether the three cars belong
to one person only or the cars belong to three different
persons. If the 3 cars belong to only one person, only one
cause of action will accrue. The owner of the cars can only file
one case against the negligent driver. Otherwise, that will be
splitting of causes of action. The owner had only one right
that was violated by the negligent driver. But if these 3 cars
belong to 3 different owners, there are 3 separate causes of
action. Because there are 3 causes of action that arise, they
can file separate complaints, and they don’t have to be joined.
Conceivably, one owner can file his case in the RTC if he
claims the damages suffered by him amounted to more than
500k. Another owner can file his case in the MTC if he claims
that his car incurred damages amounting to 200k. The filing
of these complaints by 3 different owners will depend on the
amount of damages each will respectively claim in their
respective complaints. The fact that there are 3 different
causes of action does not mean that they should go to the
same court in order to recover the damages suffered by
them.
In the first example where the 3 damaged cars were owned by
one owner, there is only one cause of action. The owner of
the 3 cars can only file one complaint for recovery of
damages. Can he properly and rightfully go to court right
away?
No. If we rely solely on substantive law alone, it would
seemingly be yes. But if we apply other procedural principles,
the owner may be precluded from filing a complaint right
away. The owner has to first satisfy certain conditions
precedent before cause of action could accrue. If these
conditions precedent are not satisfied, the filing of the
complaint shall be premature and shall cause the dismissal of
his complaint.
Conditions precedent given under procedural rules and
substantive law are as follows:
1. prior barangay conciliation
2. arbitration clause
3. certification on non-forum shopping
4. exhaustion of administrative remedies
5. earnest efforts towards a compromise
Even if a right has been violated and a cause of action indeed
accrued, if the action is covered under the circular on prior
barangay conciliation, the trial court can dismiss or not
entertain the case and order the parties to undergo barangay
conciliation first.
Arbitration clause – invariably provides that in case of
breach of contract, the parties must first undergo arbitration
before a complaint can be filed by the innocent party.
Rule 7 – Certification on Non-Forum Shopping
The complaint/initiatory pleading must have Certification on
Non-Forum Shopping. The effect of a complaint/initiatory
pleading without Certification on Non-Forum Shopping is that
the court acquires jurisdiction over the case, but the court can
order the dismissal of the case for non-observance of
Certification on Non-Forum Shopping as a condition
precedent.
Effects of complaint filed without certification of non-
forum shopping:
1. court obtains jurisdiction of the case
2. court can dismiss the case for noncompliance of condition
precedent
Exhaustion of administrative procedures is another
condition precedent to the accrual of a cause of action.
In the NCC, in disputes between members of the same family,
it must be shown that earnest efforts to reconcile or
compromise have been attempted but was unsuccessful.
Thus, the definition of a cause of action under the Rules is
now qualified by certain conditions precedent before the
injured party can go to court. He must see to it that these
conditions precedent, if applicable, must first be observed.
The risk of not doing so is that the court, although competent
and may have jurisdiction over the case, may refuse to file
the case and issue an order directing the plaintiff to undergo
or comply with these conditions precedent.
If the conditions precedent have been met, the general rule
that we follow is for every cause of action, the plaintiff/right
holder can file one complaint.
Splitting a cause of action – abhorred by the court.
Ex. Creditor filed separate actions for recovery of the
principal and the interest earned by the principal. Even if
there are 2 different courts where these complaints are filed,
there is still splitting cause of actions.
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.
Rule 7 SEC. 5. Certification against forum
shopping. —The plaintiff or principal party shall
certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or
in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has
not theretofore commenced any action or filed
any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best
of his knowledge, no such other action or claim is
pending therein; (b) if there is such other
pending action or claim, a complete statement of
the present status thereof; and (c) if he should
thereafter learn that the same or similar action
or claim has been filed or is pending, he shall
report that fact within five (5) days therefrom
to the court wherein his aforesaid complaint or
initiatory pleading has been filed.
Failure to comply with the foregoing
requirements shall not be curable by mere
amendment of the complaint or other
initiatory pleading but shall be cause for the
dismissal of the case without prejudice,
unless otherwise provided, upon motion and
after hearing. The submission, of a false
certification or non-compliance with any of the
undertakings therein shall constitute indirect
contempt of court, without prejudice to the
corresponding administrative and criminal
actions. If the acts of the party or his counsel
clearly constitute willful and deliberate forum
 shopping, the same shall be ground for summary sought to be prevented.
dismissal with prejudice and shall constitute
direct contempt, as well as a cause for Consequences of splitting:
administrative sanctions. Suppose the plaintiff filed 2 complaints arising from the
same cause of action, but the defendant ignores this.
Sanctions for splitting causes of action: Defendant did not act on the fact. Can the court motu
1. filing of one could be used to dismiss the other due to litis propio dismiss the cases?
pendencia Yes. Res judicata and litis pendencia are both non-waivable
2. if one of the case has been decided, the other case can be offenses under Rule 9. Even if the defendant did not waive
dismissed due to res judicata these, the court motu propio can order dismissal of these
cases once these becomes clear during trial. But if the ground
3. if there are 2 concurrent cases, the cases can be dismissed
for dismissal is litis pendencia, only one of the cases will
on ground of forum shopping.
be dismissed. If the ground for dismissal is res judicata, all
cases filed will be dismissed.
It is now settled that if the party is guilty of splitting his
cause of action, he is also guilty of forum shopping.
In litis pendencia, movant cannot move for dismissal of all
There is no need to elaborate as to whether there is
cases, only one can be dismissed.
forum shopping as long as it can be shown that there is
splitting causes of action.
Rule 9SECTION 1. Defenses and objections
not pleaded.—Defenses and objections not
Why does the Rules prohibit splitting?
pleaded either in a motion to dismiss or in the
It is because, the effect of splitting a cause of action could be
answer are deemed waived. However, when it
harmful to our courts. If splitting is allowed, and one case
appears from the pleadings or the evidence
each will be filed for example in the RTC and MTC, there is
on record that the court has no jurisdiction
the possibility that one court will decide differently from the
over the subject matter, that there is
other and would result in the courts looking funny, even if the
another action pending between the same
same facts, the same parties and the same pieces of evidence
parties for the same cause, or that the
were presented therein. The rule on splitting is designed more
action is barred by a prior judgment or by
for protecting the integrity of our courts. The likelihood that
statute of limitations, the court shall dismiss
different courts will render conflicting decisions involving the
the claim.
same issue, the same parties and the same pieces of evidence
and thus destroy the credibility of the judicial system is
(Note: If you are counsel for the defendant, if cases are filed
in 2 different courts [RTC and MTC], move for the dismissal of
the case in the RTC, as the amount involved in the MTC is
smaller. Hence, if the amount involved in total should have
been 2.2M, and the amount involved in the MTC is only 200k,
only 200k will be extent of liability that your client will have in
case of judgment against him.)
Can we have the defendant have the remedy of dismissal
of both cases filed in RTC and MTC?
Yes, on the ground of forum shopping. If a plaintiff is guilty
of forum shopping, the court shall order the dismissal of all
cases. But the qualification is that the dismissal is without
prejudice, not an adjudication on the merits. Exception to the
dismissal being without prejudice is that if the forum
shopping was DELIBERATE, then dismissal is with prejudice.
SUMMARY:
If the wish of the defendant is the dismissal of all cases,
move for dismissal under Rule 7 on the ground of forum
shopping. Anyway, if the party is guilty of splitting of a
cause of action, he violates the rule on forum shopping.
But if one of the cases has been decided, the ground of
dismissal should be res judicata, as long as the decision in
that previous case has become FINAL AND EXECUTORY.
Litis pendencia and res judicata are NON-WAIVABLE
defenses. Courts can motu propio dismiss the case on
these grounds under Rule 9.
On Cases of Collection of Payments Payable on
Installments
Larena vs. Villanueva – old case but still applicable
Each installment = different maturity dates.
The rule of thumb is that for each installment that
becomes due and unpaid, one cause of action arises for
that particular installment.
If the installment becomes due and unpaid, the creditor
has one cause of action against the debtor for recovery
of money. But his cause of action against the debtor is
only for the recovery of the installment that was
overdue.
Can the creditor insist on recovery of the entire amount
instead of installments?
Generally, no. Each installment must be due so that right of
recovery can be had.
Exception: The contract has an acceleration clause.
It is a clause in contracts payable in installments where
parties stipulate that in case of default in the payment
of a certain number of installments (or even just one),
the entire obligation becomes due.
So if there was an acceleration clause in the contract wherein
the whole obligation becomes due after default of the first
installment, the creditor will have one cause of action only to
recover the entire amount. Suppose the creditor indeed filed
one case only, and later a judgment was decided in his favor
and the has become final, and later the second installment has
become due, he cannot file another case for the recovery of
the second installment by virtue of the acceleration clause.
Only one cause of action shall arise.
But without an acceleration clause, the rule of thumb is each
installment that is unpaid shall give rise to a different cause
of action when they become due and unpaid. There will be as
many cases as there are installments filed by the creditor
against the same debtor, but each case corresponding to a
different installment.
The qualification given in Larena is that if two installments are
already due, then they should be the subject of one
complaint. If the other installments are not yet due, they
cannot yet be subject to a complaint.
RULE ON ANTICIPATORY BREACH
Blossom vs. Manila Gas (Rule on Anticipatory Breach)
Even if the obligations are not yet due according to the
contract, but the debtor has expressed formally his
desire not to pay, then that is an anticipatory breach of
contract from which creditor can file a case against the
debtor to collect the entire obligation. This anticipatory
breach should be formally pleaded in the complaint.
SWAGMAN RULE
If such anticipatory breach was not pleaded in the
complaint filed, and defendant failed to file an answer,
the court will set the case for pre-trial. By the time the
pre-trial was conducted, the first installment had
become due. The trial was scheduled, but by that time,
the whole obligation became due and unpaid. Can the
court properly decide the case in favor of the plaintiff?
No.
Swagman Hotel vs. CA
If a plaintiff files a complaint in court although he has no
cause of action at all, and the claim of the plaintiff
matures at the time the case is tried, the court still does
not have any authority to decide the case. This is
because at the time of the filing of the complaint, the
plaintiff did not have a cause of action.
Can we not apply Rule 10 (Amendment to conform to
evidence)?
SC held that we don’t apply amendment to conform to
evidence, if in the first place the plaintiff does not have a
cause of action at the time of the filing of the complaint. It is
essential under the Swagman Rule that a complaint should
be filed after the cause of action has accrued. If there is
no cause of action that has accrued and a complaint is
filed, the court will have no authority to decide the case,
even if that obligation matures and becomes defaulted
during the trial of the case. We apply Rule 10 only if there is
a cause of action at the time of the filing of the complaint.
Swagman Hotel vs. CA
Facts: Sometime in 1996 and 1997, Swagman
through Atty. Infante and Hegerty, its president
and vice-president, respectively, obtained from
Christian loans evidenced by three promissory
notes dated 7 August 1996, 14 March 1997, and 14
July 1997. Each of the promissory notes is in the
amount of US$50,000 payable after three years
from its date with an interest of 15% per annum
payable every three months. In a letter dated 16
December 1998, Christian informed the petitioner
corporation that he was terminating the loans
and demanded from the latter payment of said
loans.
On 2 February 1999, Christian filed with the RTC
a complaint for a sum of money and damages
against the petitioner corporation, Hegerty, and
Atty. Infante.
The petitioner corporation, together with its
president and vice-president, filed an Answer
raising as defenses lack of cause of action.
According to them, Christian had no cause of
action because the three promissory notes were
not yet due and demandable.
The trial court ruled that under Section 5 of Rule
10 of the 1997 Rules of Civil Procedure, a
complaint which states no cause of action may
be cured by evidence presented without
objection. Thus, even if the plaintiff had no
cause of action at the time he filed the instant
complaint, as defendants’ obligation are not yet
due and demandable then, he may nevertheless
recover on the first two promissory notes in view
of the introduction of evidence showing that the
obligations covered by the two promissory notes
are now due and demandable. When the instant
case was filed on February 2, 1999, none of the
promissory notes was due and demandable, but ,
the first and the second promissory notes have
already matured during the course of the
proceeding. Hence, payment is already due.
This finding was affirmed in toto by the CA.
Issue: Whether or not a complaint that lacks a
cause of action at the time it was filed be cured
by the accrual of a cause of action during the
pendency of the case.
Held: No. Cause of action, as defined in Section
2, Rule 2 of the 1997 Rules of Civil Procedure, is
the act or omission by which a party violates the
right of another. Its essential elements are as
follows:
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 in violation of the
right of the plaintiff or constituting
a breach of the obligation of the
defendant to the plaintiff for which
the latter may maintain an action
for recovery of damages or other
appropriate relief.
SWAGMAN RULE: At the time of the filing of the
complaint, the plaintiff must have a cause of action. He
must be able to show that his right was violated by the
time the complaint was filed. Otherwise, he cannot make
use of amendment to conform to evidence.

SPLITTING VS JOINDER OF CAUSES OF ACTIONS

It is, thus, only upon the occurrence of the last Splitting is prohibited, joinder is encouraged by the Rules.
element that a cause of action arises, giving the
plaintiff the right to maintain an action in court
The Rules encourages a plaintiff to incorporate as many
for recovery of damages or other appropriate
causes of action he may have against the same defendant,
relief.
although his causes of action are totally unrelated to one
another. This is allowed so long as the parties remain the
Such interpretation by the trial court and CA of same.
Section 5, Rule 10 of the 1997 Rules of Civil
Procedure is erroneous. The curing effect under
A plaintiff can file a complaint against a defendant for accion
Section 5 is applicable only if a cause of action in
reinvindicatoria, for recovery of money arising from the loan,
fact exists at the time the complaint is filed, but
recovery of damages arising from a quasi-delict committed by
the complaint is defective for failure to allege
the defendant, although arising out of different transactions.
the essential facts. Amendments of pleadings
There is nothing wrong if the plaintiff sets up three different
are allowed under Rule 10 of the 1997 Rules of
causes of action in a complaint that arose of different
Civil Procedure in order that the actual merits of
transactions.
a case may be determined in the most
expeditious and inexpensive manner without
regard to technicalities, and that all other The limitations to joinder of causes of action:
matters included in the case may be determined 1. Jurisdiction
in a single proceeding, thereby avoiding 2. Venue
multiplicity of suits. 3. Joinder of parties
According to Rule 2, there could be joinder causes of actions
which is valid as long as the plaintiff
SEC. 5. Joinder of causes of action.—A party
may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may
have against an opposing party, subject to the
following conditions:
(a) The party joining the causes of
action shall comply with the rules
on joinder of parties;
(b) The joinder shall not include
special civil actions or actions
governed by special rules;
(c) Where the causes of action are
between the same parties but
pertain to different venues or
jurisdictions, the joinder may be
allowed in the Regional Trial Court
provided one of the causes of
action falls within the jurisdiction of
said court and the venue lies
therein; and
(d) Where the claims in all the
causes of action are principally for
recovery of money, the aggregate
amount claimed shall be the test of
jurisdiction.
If the plaintiff files a complaint against the defendant for
accion reinvindicatoria, and the assessed value of the property
is 1k only, and the second cause of action is the recovery of
money, obviously the actions are misjoined. This is because
accion reinvindicatoria, the property being only 1k, is
cognizable only by the MTC.
SC decided a case where one of the parties contended
joinder when there was actually misjoinder of causes of
action. The complaint filed by the plaintiff against the
defendant, the first cause of action was for partition,
and second cause of action was for rescission of a
donation. Both causes of action were cognizable by the
RTC.
If we rely solely on Sec. 5 Rule 2, is there misjoinder of
actions? Why?
Yes. This is because a complaint for Partition is a special civil
action while rescission is an ordinary civil action. They are
governed by different procedures, and thus there is
misjoinder of causes of action under Rule 2 Sec. 5(b).
On the same facts above, the defendant did not notice
the misjoinder and did nothing, whereas the court did
nothing also. The judge most likely waited for the
defendant to move to split the misjoinder causes. But
since nothing was done by defendant, the judge
proceeded to try the two misjoined cases.
Under the rules, can a court, motu propio, order the
severance of one of the misjoined causes of action?
Yes. The court can do so. Under the Rules, there is no need
for a motion from the defendant if the court finds out that
causes of action are misjoined . It can motu propio order the
severance of cases. This is done for the benefit of the court,
because if the court will wait for the defendant to make a
motion, to raise the misjoinder of causes, the court will find
himself confused with the procedure he will follow. This is
because partition will involve a different procedure from
ordinary civil actions. In fact, under our Rules now, partition is
a multi-stage proceedings. Rescission is an ordinary civil
actions.
The court went ahead and tried the case, until a decision
was finally issued by the court. Only then did the
defendant raised, on appeal to the SC, the misjoinder of
causes of action.
If nobody objected, the court may proceed in the disposition
of the case. If the court decided on the case, the decision will
still be valid. SC made a qualification that these misjoined
causes should be within the jurisdiction of the trial court
under BP 129. In other words, this rule on misjoined causes
could be a ground for severance of these causes. But it if it is
not raised timely, and the court decided on the case, the
court’s decision is valid as long as the trial court has
jurisdiction over the misjoined causes.
Does the RTC have jurisdiction over a complaint for
Partition? Does the RTC have jurisdiction over rescission
of a donation?
Note that a case for partition is one incapable of pecuniary
estimation. So even if there are misjoined causes in one
complaint, but this misjoinder is not raised before the trial
court, the parties are deemed to have waived this issue of
misjoinder of causes of action, the judgment rendered by the
court is valid and the same can be executed if it is duly
entered.
If the court does not motu propio order the severance, the
defendant cannot blame the court for it. It is the burden of
the defendant to raise this as an issue before the trial court.
As long as one of the misjoined causes falls within the
jurisdiction of the trial court, there is nothing wrong if the
trial court will eventually decide the case although there is
misjoined causes of action.
Can a complaint be filed where these two causes of action
are set up, first, petition for certiorari, and then, as a
second cause, petition for habeas corpus?
Yes, the petition is allowed, by way of exception, according to
SC.
A complaint was filed in the MTC. The first cause of
action was for accion reinvindicatoria, the assessed value
of the land was 1k. The other cause of action unlawful
detainer of a condominium unit, with value of back
rentals being 2M. Can an MTC have jurisdiction over the
action?
Yes. The value of the land in the accion reinvindicatoria where
the assessed value was only 1K. The recovery of possession by
a MTC will be by a summary proceeding, regardless of the
back rentals sought to be recovered..
Are the causes properly joined?
No. There is still misjoinder, although both causes are
cognizable by an MTC. This is because accion reinvindicatoria,
although cognizable by the MTC, shall be governed by
ordinary proceedings while unlawful detainer will be governed
by summary procedure. We cannot join causes of action which
are governed by different Rules of Procedure, although they
may fall within the jurisdiction of that same court.
New case
Baylon Case. – Even if there is misjoinder, if it is not
raised as an issue, and the court has decided upon the
case, the decision rendered thereafter is still valid so long
as the court has jurisdiction over all causes of action that
are misjoined in the same complaint.
Limitations to the prerogative
Unlike joinder of parties, there is a rule against misjoinder of
causes of action, in the same way there is a rule on misjoinder
of parties. There is no rule on non-joinder of causes of action,
while there is non-joinder and misjoinder of parties. The
reason why there is no rule on non-joinder of causes is
because it is permissive, it is always at the option of the
plaintiff. The plaintiff can join as many causes of action as he
may have. The court cannot force him to do so. But there is a
rule against MISJOINDER of parties.
Misjoinder of causes occurs when the joinder of two or more
causes violates the rules. Ex. Joinder of special and ordinary
causes of action in one complaint, it is prohibited for being in
violation of the rule that actions covered by different rules of
procedure cannot be joined, although both may be cognizable
by the same court.
But the latest jurisprudence of the court is to the effect
that even if causes are misjoined, if that issue is not
raised on appeal, the CA and SC will ignore the violation
of the rule on misjoinder. Judgment will not be disturbed,
so long as the court deciding has jurisdiction on all causes
that have been misjoined.
Limitations:
1. Sec. 6, Rule 3, Permissive Joinder of Parties
- It envisions a situation where there are 2 or more plaintiffs,
2 or more defendants, or both, where there is a series of
transactions, with common questions of fact concerning the
same 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.
The owner of a land discovered that his property has
been occupied forcibly by 11 informal settlers and they
retained physical possession thereof. The informal
settlers had constructed houses therein. The owner
wanted to recover the possession thereof. Should the
owner file 11 cases of forcible entry or just one against
the 11, or one complaint wherein there is a joinder of
parties?
SC said that the owner has the option of choosing any one of
these remedies. Plaintiff can file 11 separate complaints
impleading only one defendant in each complaint. If plaintiff
chooses to file just one action, in that complaint, he must
allege 11 causes of action (First Cause of Action, etc.). The last
recourse will involve joinder of parties.
Why?
Sec. 6 Rule 3 is permissive in character. (use of the word
‘may’)
2. Compulsory joinder of indispensible parties – party
must be joined so that final adjudication of the issue can be
had.
- even if the court tries a case without impleading an
indispensible party, such non-joinder will render the
proceedings void. The decision is void and will never be
entered, and thus cannot be made final and executory.
Indispensible party–parties in interest without whom no
final determination can be had.
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 s plaintiffs or
defendants.
If there are 2 parties to the contract of sale, one vendor and
one vendee. If in case there is a violation of the contract of
sale, the vendor and vendee are of course indispensible
parties.
Necessary party–the joinder of such party is not
compulsory.
Rule 3 SEC. 8. Necessary party.—A necessary
party is one who is not indispensable but who
ought to be joined as a party if complete
relief is to be accorded as to those already
parties, or for a complete determination or
settlement of the claim subject of the
action.
What is the sanction if the complaint is filed without
impleading indispensible party?
It is not per se a ground for dismissal as very clearly stated in
Section 11, Rule 3; but if the defendant uses another ground
used, specifically failure to state a cause of action, then the
complaint will be dismissed.
Rule 3 SEC. 11. Misjoinder and non-joinder
of parties.—Neither misjoinder nor non-
joinder of parties is ground for dismissal of
 an action. Parties may be dropped or added by
order of the court on motion of any party or on
its own initiative at any stage of the action and
on such terms as are just. Any claim against a
misjoined party may be severed and proceeded
with separately.
SC held differently in several cases:
It held that failure to state a cause of action is evident
when an indispensable party is not impleaded. A cause of
action envisions the existence of a right violated and a
wrongdoer who did such violation. The proceedings taken by
the court are considered void in terms of those who were not
impleaded, being indispensable parties. Even if the court
decided the case, the judgment therein will be
unenforceable since such decision will be subject to
question by those parties not impleaded.
There were also decisions stating otherwise. SC stated than
non-joinder/misjoinder is not a ground for dismissal. If a
motion to dismiss is filed, SC stated that the court
should order amendment of the complaint instead of
dismissing it. In Rule 16 on alternatives of a court on
ruling a motion to dismiss, SC says a trial court has 3
options: deny, dismiss or to order amendment of the
complaint. Thus, trial court can order denial of a motion
to dismiss by ordering amendment.
4 alternatives to resolve misjoinder/non-joinder of
indispensable parties:
1. Grant motion
2. Deny motion
3. Order amendment to the pleading
4. Refer the matter to arbitration or prior barangay
conciliation
Hence, if a defendant moves for the dismissal of the case
of non-joinder of indispensible parties, the court can
order amendment of that complaint to implead the
indispensible party. Plaintiff also has a choice; he can
either ignore or comply with the order. If he complied,
the defect is cured.
But if plaintiff disobeys the order directing him to
implead an indispensible party, can the court do
something about it?
SC held that the case can be dismissed under Rule 17. If the
dismissal was ordered by the court due to disobedience of a
lawful order, it shall be a dismissal with prejudice, an
adjudication upon the merits.
Adopt the 2nd set. Order amendment. If amendment order is
not complied with, court will order dismissal under Rule 17,
unless the court orders otherwise.
What is the difference of a dismissal under Rule 16 and
Rule 17?
If a complaint is dismissed under Rule 16 due to failure to
state a cause of action from failure to implead, dismissal is
without prejudice.
If dismissal is by reason of Rule 17, for failure to obey lawful
orders of the court, it is a dismissal with prejudice unless the
court orders otherwise.
NECESSARY AND INDISPENSABLE PARTIES
How do we distinguish whether a party is necessary or
indispensable?
The rule to guide us in this fact is the NCC on liability of
debtors.
In the case of debtor/creditor relations where there are 2
debtors to the same debt:
Plaintiff should evaluate liability, whether debtors’ liabilities
are solidary or joint. In the NCC, in absence of any other
stipulations/factors, when there are two debtors of the same
indebtedness, the assumption will be that they are joint
creditors. If there are stipulations referring to the debt as
solidary, then they are solidary debtors. The provisions of the
NCC will be the guide in this situation.
If we apply the provisions of the NCC, and the creditor
filed a case to recover the entire debt, and debtor A and
B are joint debtors, do we consider both debtors to be
indispensible parties?
Yes. If the purpose of the creditor is to recover the entire
obligation, then both debtors should be impleaded in the
complaint.
Can the creditor file a case against only debtor A?
Yes, applying the provisions of the NCC, the creditor can go
after A, but recovery can be had only to the extent of the
amount owed by A. In this example, debtor A is an
indispensible party.
How about debtor B, is he a necessary party?
Yes. His presence in the case against debtor A is not
indispensible. The court may require B be impleaded to
complete the determination the subject matter.
There is another presumption in the NCC that if there is no
indication as to the extent of the debt of two joint debtor’s
the presumption will be that both shall share equal obligations
to the creditor. Hence, if the creditor loaned Debtors A and B
1M, there being no other stipulation, it is presumed that
Debtors A and B are joint debtors with individual liabilities of
500K each.
Indispensable Parties Necessary Parties
Parties in interest without A necessary party is one who
whom no final determination is not indispensable but who
can be ought to be joined as a party
had of an action shall be if complete relief is to be
joined either as plaintiffs or accorded as to those already
parties, or for a complete
defendants. (Sec.7, Rule 3)
determination or settlement
Must be joined under any of the claim subject of the
and all conditions because action. (Sec.8, Rule 3)
the court cannot proceed
without him (Riano, Civil
Procedure: A Restatement
for the Bar, p. 224, 2009 ed.)
Note: Should be joined
whenever possible, the
action can proceed even in
their absence because his
interest is separable from
that of indispensable party
(Ibid p.224)
No valid judgment if they The case may be determined
are not joined in court but the judgment
therein will not resolve the
Note: In the absence of an entire controversy if a
indispensable party renders necessary party is not joined
all subsequent actions of the
court null and void for want Note: Whenever in any
of authority to act, not only pleading in which a claim is
as to the absent parties but asserted a necessary party is
even as to those present not joined, the pleader shall
(Riano, Civil Procedure: A set forth his name, if known,
Restatement for the Bar, p. and shall state why he is
221, 2009 ed.) 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-joinder of an indispensable or a necessary party is
not by itself ipso facto a ground for the dismissal of the
action. The court should order the joinder of such party and
non-compliance with the said order would be a ground for
the dismissal of the action (Feria, Civil Procedure
Annotated, Vol. I, p. 239, 2001 ed.)
Note: Parties may be dropped or added by order of the
court on motion of any party or 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. (Sec. 11, Rule 3)
The presence of a necessary party is not determinant to the
resolution of the action, but can be impleaded if only to
satisfy completely the issue.
The duty of the plaintiff is only to tell the court that he has
left out a necessary party, he is not compelled to include
such party. The court will have to determine if it is essential
for the court to order requiring that necessary party to be
impleaded.
If plaintiff ignored the court order to implead the
necessary party, is Rule 17 applicable?
No, Rule 3 should apply, which provides for the sanction if
plaintiff refuses to obey an order to implead necessary party.
The case will continue. But, the plaintiff would be deemed to
have waived any right of action against necessary party. If
later on, the plaintiff decides to file a complaint against such
necessary party, the complaint will not prosper, as the
necessary party can claim that the right to file a claim against
him has been paid, waived, abandoned or otherwise
extinguished under Rule 16.
THE RULE ON ASSIGNMENT/TRANSFER OF INTEREST (RULE
3, LAST SECTION)
Ex.
There is a creditor who lent 1M to the debtor. The debtor
defaults in payment. But before the creditor filed a complaint,
the creditor felt the need for money. He assigned his claim to
another for a certain value. Such person now stands in the
shoes of the creditor, and may file a claim against the debtor.
The creditor sold his rights to X for 700K.
Can the assignor/original creditor, file a claim for 1M
against creditor?
No, he is no longer a real party in interest, as he has assigned
his rights to another.
What if assignee files a complaint against debtor?
Assignee is the proper party to file a complaint against
debtor, so the case will prosper.
How much can assignee recover?
He is entitled to recover 1M. The assignee steps into the
shoes of the creditor who sold his right to the assignor for 1M.
What if the original creditor has not assigned his credit
for 1M. He files a case against debtor. While the case was
pending in the RTC, the plaintiff/creditor assigned his
claim. The assignment was in pendente lite, for 700K. Will
the assignee be considered as indispensable party?
No. Under Rule 3, assignee pendente lite is not considered an
indispensable party and the court may ignore such party.
The creditor assigned his rights to assignee. The assignor
pendente lite/creditor stipulated that the case should be
dismissed in consideration for the payment of the 700k.
Is this allowed?
Yes. This is allowed under Art. 1634 NCC.
Husband and wife should sue or be sued jointly.
SC Held that the law contemplated in the exemption is the
Family Code or NCC as the case may be. This is pertinent on
the rule of partnership and co-ownership in case of husband
and wife. It is impertinent to compel a husband to implead the
wife as co-plaintiff.
In case of co-owner, a partner can file a complaint without
impleading the co-owners. The same would be applicable to
husband and wife. The wife may file a case without
impleading her husband.
There is a caveat: If the husband as a co-owner files a
complaint against another, he should indicate in the
complaint that he is filing such case as co-owner. But if
he claims sole ownership, he should implead the wife. The law
authorizes either spouse alone to file a complaint. The spouse
left behind is not considered a necessary party as a complete
determination of the case could be had even with just one
spouse as a party.
Exceptions: (See Art. 113 NCC)
Husband and wife are judicially declared legally separated
from each other, the other party must be impleaded.
If the husband and wife are separated in fact for at least one
year.
(See also Arts. 25 to 35 NCC)
CLASS SUIT
There is a common interest among persons so numerous
that it would be impracticable to bring them all to court. It is
not required that all be presented in court, but only enough to
represent the rest of those who are party to the same suit.
Ex. Oposa vs. Factoran is now enshrined in the Writ of
Kalikasan via the Citizen’s Suit on behalf of persons yet
unborn. This is effectively a class suit.
Do we consider the class as indispensable or necessary
parties?
SC held that all in the class involved in the litigation are
considered indispensable parties.
Should they all be identified?
SC held that there is no need. Only a representative number
can be impleaded as they represent all of the class.
Determination made on such representative class is
tantamount to determination for all of the members of the
class.
Why did SC hold that all such members of the class are
deemed indispensable?
SC stated that the last sentence of Sec. 12 Rule 3 states that
“Any party in interest shall have the right to intervene to
protect his individual interest.” A member of a class in a class
suit has a right to intervene.
Note:
Intervention – a matter that is subject to the discretion
(allow or disallow) of the trial court. Exception, court cannot
deny intervention of a member of the class in a class suit.
Deceased Litigant
SEC. 16. Death of party; duty of counsel.—
Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be
the duty of his counsel to inform the court
within thirty (30) days after such death of the
fact thereof, and to give the name and address
of his legal representative or representatives.
Failure of counsel to comply with this duty shall
be a ground for disciplinary action.
The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring
the appointment of an executor or administrator
and the court may appoint a guardian ad litem
for the minor heirs.
The court shall forthwith order said legal
representative or representatives to appear and
be substituted within a period of thirty (30) days
from notice.
If no legal representative is named by the
counsel for the deceased party or if the one so
named shall fail to appear within the specified
period, the court may order the opposing party,
within a specified time, to procure the
appointment of an executor or administrator for
the estate of the deceased and the latter shall
immediately appear for and on behalf of the
deceased. The court charges in procuring such
appointment, if defrayed by the opposing party,
may be recovered as costs.
A contract of agency is present when a lawyer is engaged by
his client, an agency which exists until the client dies. The
lawyer has to inform the court about the death of his client.
The court may then cause substitution of the representatives
of the estate of the deceased.
Rules on death of the plaintiff in marriage-related
cases :
Dismissal – death occurred before entry of judgment
Substitution of parties – death occurred after entry of
judgment
Plaintiff dies – the court would require the lawyer to submit
the names of the heirs in order to act as substitute plaintiff.
Refusal of all heirs to act as substitute parties, court can
require the defendant to seek the appointment of an
administrator or executor of the estate (in the settlement
court for probate of a will or intestacy).
Settlement court – either RTC or MTC depending on the value
of the estate.
If the executor or administrator has been chosen, he will be
tasked to represent the estate until final judgment.
If there is an appeal on the decision of the trial court, the
executor/administrator shall represent the estate. Their
representative capacity ends upon final entry of judgment.
Death of a debtor will not extinguish an obligation, there
being transfer of the interest from debtor to his estate.
There will have to be proper substitution of parties.
If there is a decision against debtor that was final and
executory, can the substituted party ask for motion for
writ of execution for satisfaction of the deceased’s
claim?
No. It cannot be subject to execution under Rule 39. Creditor
must file a claim, attaching the said judgment as evidence of a
valid claim.
Rule 4 VENUE OF ACTIONS
One court that can disregard rules on venue – SC
All other courts cannot disregard the rules on venue.
Trial courts can incorporate in their decision an advisory to
the defeated party to appeal the matter to the SC.
Venue can be subject to stipulation of parties.
Elements:
1. Stipulation has the feature of exclusivity
2. Written, and
3. It must have been entered into before the commencement
of the action
Caveat: If the stipulation will cause undue inconvenience to
parties, then such stipulation can be dispensed with by
parties.
In a real action, the venue, in absence of any stipulation
designating a specific venue, is the place where the property
or a part thereof is located.
Mixed action – action is both real and personal – the venue in
absence of stipulation is the same as that of the rule in
personal actions. (Whether Action in-rem – real; Quasi in
rem or In personam– personal)
Analyze the actions whether they are real or personal. For
purposes of venue, we follow its classification as a real action.
Accion reinvindicatoria and publiciana – recovery of title or
ownership – a real action that at the same time an in
personam action.
Settlement of estate involving personal properties of the
deceased – personal action
Sweet Lines case(on venue)
The place where the principal office was located would cause
undue inconvenience for the complainants, hence the
agreement stipulating that cases should be filed in Cebu is
void. Rule 4 is designed for the convenience of complaining
parties, not for the benefit of defendants.
The rule on venue does not apply to CA, CTA and SC. It is only
applicable to trial courts and other lower courts.
Procedure before Barangay Courts
Prior barangay conciliation – a condition precedent to accrual
of cause of action.
2 requisites:
1. the parties must be natural persons
2. they reside in the same city or municipality
As long as these 2 requisites are present, prior barangay
conciliation is a MUST regardless of the nature of the
action; if claim is for collection of money, regardless of the
amount involved.
If case is filed directly in court in violation of the LGC,
will the court acquire jurisdiction?
Yes, under BP 129.
What are the remedies of defendant and the court if
prior barangay conciliation was not done?
~Defendant can file a motion for dismissal for lack of cause of
action.
~Court can compel plaintiff to submit to barangay conciliation
while being held in suspension.
~Court can hold case in abeyance until conciliation was had or
had failed. (Court will dismiss the case, and await result of the
barangay conciliation.)
Note: Barangay Court is not part of the judiciary, but part of
the executive. Inherently, barangay courts are not allowed to
adjudicate, only to mediate, to conciliate, and convince parties
to arrive into a compromise agreement and settle amicably.
They act as an arbitration court; that is, if parties have
mutually agreed in writing to constitute the barangay court as
an arbitration court for their dispute.
The barangay courts follow procedurally the same rules as
that of court cases.
The pleadings could be verbal, although the barangay court
usually asks for pleadings to be written. They also require
payment of minimal docket fees, regardless of the amount of
claim.
If the complainant fails to appear repeatedly during the
conferences called by the Barangay Court, the Barangay Court
can order the dismissal of the complaint, and that dismissal is
with prejudice. The complainant loses his right to recover
against the respondent.

Rule of venue is different from Rule 4 RoC. The venue is the
residence of the respondent. If the complainant and
respondent resides in different barangay, the complaint
should be filed in the barangay where the respondent resides.
This applies to civil actions, as well as special civil actions in
appropriate cases.
Ex. Complaint for interpleader
Complaint for forcible entry and unlawful detainer, although
these are special civil actions
This does not apply to:
~Rule 65 cases, nor in petition for relief cases.
~Cases that involve public officers or LGUs.
~Certiorari, Prohibition, Mandamus – usually involves exercise
of public duties (especially of a judge)
~It does not apply to expropriation or quo warranto.
If they are unable to settle, the barangay court issues a
certification that no compromise was entered into. This
enables the plaintiff to file a case in court. But if a
compromise agreement was filed, that agreement will be
considered a final and executory judgment, subject to
repudiation by any party within 10 days from execution of the
agreement. Grounds are any of the vices of consent. If there
is repudiation, the barangay court will issue certification
allowing plaintiff to file the case in court.
If parties agreed in writing that a barangay court shall be the
arbitration court, this can be repudiated within 5 days from
filing said agreement.
The Barangay Court, as an arbitration court, can make arbitral
awards. A party can cause annulment of said award based on
vices of consent. No other ground need be presented (such as
lack of jurisdiction, etc.)
There is no need for the barangay court to ask for
confirmation of the compromise agreement. After the lapse
of the 10-day period, it becomes final and executory. It can
become subject to execution by the barangay court. If the
terms of the agreement are not complied with, the barangay
court can execute the judgment, provided such judgment
should be executed within six months from signing of
compromise agreement.
Execution of the barangay court.
While it can make a levy on execution, it is limited to personal
properties belonging to respondents. It cannot levy on real
properties owned by respondents. It can also sell these levied
personal properties at public auction to satisfy the
compromise agreement. If there is no satisfaction of the
claim, the remedy is for the judgment creditor to file a case
of collection in the MTC to satisfy the compromise
agreement.
Montañez vs. Miguel – enforcement of compromise
agreement by barangay courts (2012)
The case substantially has the following facts: immediately. Failure to comply can lead to rescission of that
The claim of the creditor was 500k. Both parties submitted compromise agreement.
the matter for conciliation in the barangay court. The claim of
500k was reduced substantially in the proceedings, 250k paid
in installments. The debtor failed to comply. The agreement SUMMARY PROCEEDINGS
was not repudiated. The creditor filed a complaint in the
It refers to the summary procedure followed by lower courts
regular court for recovery of the 500k. CA held that the only
in unlawful detainer, forcible entry and money claims up to
recourse of the creditor was to enforce the compromise
200k, exclusive of interest, etc.
agreement as provided in LGC and the implementing circulars,
the creditor having lost the right to claim the 500k.
Note:
Small claims proceedings – involve claims up to 100k.
SC HELD that the barangay court approved compromise
agreement being final and executory, if the debtor fails to
comply, the failure to comply is considered as a repudiation of There are cases which follow summary procedure that is
that compromise agreement. SC cited Art. 2041 of the NCC cognizable by RTC. However, these cases involve family-
which states that when a party fails to comply with the related cases. They are not civil actions involving summary
compromise agreement, the agreement is rescinded by procedures under the rules.
operation of law, and thus the creditor is entitled to recover
the original claim in the courts of justice. Summary proceedings prohibit filing of certain pleadings and
motions.
There is no need to file rescission of the compromise
agreement in this instance. The effect is that the creditor The only Pleadings allowed:
who has agreed to the compromise agreement will be reverted Complaint
to his original position as a creditor claiming the amount in his Answer
original claim before the compromise agreement.
Compulsory Counterclaim/crossclaim

Mere refusal or failure to comply with compromise

agreement is tantamount to repudiation of the
compromise agreement.
Note: Judgment based upon a compromise is immediately
executory. A party can sought execution thereof
Motion to dismiss under Rule 16 is prohibited, unless the
ground is absence of jurisdiction over the subject matter
and absence of prior barangay conciliation (failure to
follow condition precedent).Although prohibited, what is
prohibited is a motion to dismiss filed by the defendant.

Summary Dismissal is allowed given, by the court itself, no
motion being given.
The court itself will examine the contents of the complaint. If
the court finds the case should be dismissed under Rule 16, it
can do so motu propio, without a correlative motion to dismiss
filed by the defendant.
Ordinarily, under ordinary procedures, a court cannot simply
dismiss the case without a correlative motion to dismiss.
The defendant is given time to file a responsive pleading for a
shorter period than in ordinary procedure. Period is non-
extendible (10 days). If defendant ignores the period, but files
a motion for extension of 5 days to file an answer, the court
can ignore it, considering it as if it was not filed. If such a
motion was filed, and there was failure of the defendant to
file an answer within 10 days, plaintiff can move for judgment
on the pleadings.
If the defendant is prohibited from filing a motion to
dismiss, but the defendant, after evaluating the
complaint that the case should be dismissed based on any
ground in Rule 16, can he still make use of these grounds
to cause dismissal eventually?
Yes. The defendant should follow Rule 16 by making use of the
grounds as an affirmative defense in his answer, and later on
raise these issues.
Motion to declare defendant in default – a prohibited pleading
in summary procedure.
If defendant failed to answer on time, the plaintiff can move
for judgment on the pleadings.
In ordinary proceedings, a motion to declare defendant in
default must be initiated by plaintiff before the court can
declare defendant in default. Unless such motion is made, the
court can do nothing.
The reason why the rules on summary proceedings does not
allow the court to declare defendant in default, it is because
the rules under Rule 9 cannot be allowed in summary
proceedings. It will be tantamount to allowing a defendant in
default to ask for lifting the order of default, defeating the
purpose of the rule on summary proceedings.
Motion for new trial, motion for reconsideration and petition
for relief from judgment are prohibited in summary
proceedings. This does not mean the defendant has no
remedy after judgment. The only remedy available for a
defendant is to appeal the judgment. Annulment of judgment
under Rule 47 can also be had under these proceedings. But,
before he can avail of Rule 47, the rules are strict insofar as
the requirements for annulment of judgment are concerned.
Such must be complied with before it can be availed.
Preliminary conference – identical to pre-trial in ordinary
proceedings. Submission of affidavits and position papers, no
presentation of evidence.

A trial is not absolutely prohibited in summary proceedings, as
certain criminal cases are governed by summary proceedings.
A trial has to be conducted. The court cannot deprive
defendant/accused from cross-examining the witnesses.
Why did not the SC adopt a common summary procedure
for civil and criminal cases? Why disallow trial in civil
cases under summary proceedings?
This is because SC cannot violate the rights of an accused in a
criminal case. The same right is not availing to a defendant in
a civil case under summary procedures.
Small Claims Proceedings
It contains prohibition against counsels appearing in court.
The scheme in Small Claims proceedings is that they are not
required to prepare their own pleadings. In Metro Manila, the
MTC assigned to entertain these claims have ready forms for
complaints or answer to be filed in court. Minimal docket fee
is paid.
Joinder of causes of action is allowed, so long as the aggregate
should not go beyond 100k exclusive of interest, damages,
etc.
Prohibited pleadings and motions : similar to summary
proceedings.
Judicial dispute resolution – MTC encourage parties as
much as possible to enter into a compromise agreement.
Small claims procedure has nothing to do with criminal cases,
only civil collection cases.
In small claims procedure, the judgment is immediately
final and executory, no appeal available. Motion for new
trial, motion for reconsideration and petition for relief from
judgment are not available. The only remedy available to an
aggrieved party is under Rule 65, Certiorari. Thus, there is
no appeal, plain, speedy or adequate remedy available.
Does it mean that the aggrieved party in small claims
procedure is treated more kindly than in summary
procedure?
No. The availability of Rule 65 in Small Claims procedure is not
really a benefit. A petition under Rule 65 does not stop the
respondent court from carrying out its decision.
Unlike in an appeal, usually, execution is not allowed, except
in forcible entry and unlawful detainer. In case of unlawful
detainer, payment of supersideas bond and the payment of
current rate of rentals can stop enforcement of the summary
proceedings judgment.
The only way Rule 65 can prevent immediate execution in
small claims is that the court taking cognizance of Rule 65
will issue a TRO or writ of preliminary injunction upon
application of appellant. There is a need to post an
injunction bond to avail of the TRO or writ of preliminary Defendant may make use of certain claim pleadings under
injunction. appropriate circumstances. Ex. Answer with counterclaim and
cross-claim.

Back to pleadings…. RULE 7 CERTIFICATION OF NON-FORUM SHOPPING

PLEADINGS AND CONTENTS OF PLEADINGS
Rule 6 and Rule 10 (Take them as one set, as they refer to the
same thing, pleadings and content of pleadings)
Pleadings should always be in writing.
The rules now allow a parties/litigants to make use of 9
pleadings, but numerous motions.
Classes of pleadings:
1. Claim pleading (7 kinds)
2. Responsive pleading (2 kinds)
Classification of pleadings under Rule 7:
1. Initiatory Pleadings – there should be a certification on
non-forum shopping, the violation thereof could lead to
adverse consequences such as dismissal with or without
prejudice; the court imposes docket fees, violation thereof
will render the case to be that which does not fall under the
court’s jurisdiction; payment of docket fees required.
2. Non-initiatory Pleadings – needs no certification of non-
forum shopping; no docket fees required.

The classification under Rule 7 is made for the purpose of

Claim Pleadings:
determining whether such pleading will require the inclusion
1. Complaint of a certification of non-forum shopping.
2. Counter-claim
3. Cross-claim General Rule: If an initiatory pleading is filed in court
4. Third-party complaint without the payment of the requisite docket fees, the
5. Amended pleading court does not acquire jurisdiction over the initiatory
6. Supplemental pleading pleading. Payment of docket fees carries with it the
7. Petition authority of the court to entertain the complaint.

Responsive Pleading: With respect to a compulsory counterclaim, courts do not

1. Answer consider it an initiatory pleading, which will necessitate
the payment of docket fees.
2. Reply
In 2010, SC decided that if the defendant files an answer
with permissive counterclaims, and fails to pay docket
fees, the court has neglected to collect docket fees
thereto, and the court tries the case resulting in its
dismissal and granting the permissive counterclaim (the
defendant won), the decision (even if already entered) over
the permissive counter-claim is void due to lack of
jurisdiction, there being no showing that the court
acquired jurisdiction over the counter-claim. The
defendant has the duty to remind the clerk of court that
docket fees should be collected against the defendant so as to
enable the execution of a decision in favor of the defendant.
COMPLAINT
Ultimate facts – In ordinary civil cases, ultimate facts should
be alleged in the complaint. But plaintiff is not sanctioned
in case evidentiary facts are included therein, wherein
the plaintiff also presents evidence he intends to present
in court.
In several circulars, in certain proceedings, a complaint
need not state just ultimate facts. In a complaint filed
under summary proceedings, plaintiff is encouraged to include
in his complaint evidentiary facts and to attach his evidence in
the document. In Kalikasan proceedings, the plaintiff is
required to attach to his complaints all the evidence that are
in the possession of the plaintiff (documentary, testamentary
or object). In Kalikasan cases, the defendant should include his
evidence in the answer, aside from specific denials.
Take Note: Even Rule 6 does not prohibit alleging
evidentiary facts along with ultimate facts. Rule 6 does
not impose sanctions if evidentiary facts are included in
the pleadings. But the inclusion in the complaint of
ultimate facts alone is sufficient.
The ultimate facts are those that constitute the cause of
action, an allegation that the plaintiff has a right, an
allegation that the defendant has violated that right, or
an allegation of compliance with conditions precedent
that gave rise to accrual of the cause of action.
Insofar as the answer is concerned, it is the pleading in
response to a complaint. It may contain positive or negative
defenses or both along with evidentiary facts. The defendant,
however, cannot move for the court to order the plaintiff to
present evidentiary facts in his complaint as the statement of
the ultimate facts alone in the complaint are sufficient.
Problems arise when an answer interposes a negative defense.
Negative Defense
In civil cases, a negative defense is always an important part
of the answer. (Specific denial)
What is the standard to follow that a denial is specific?
It is found in Sec. 10 Rule 8 (Relate Rule 6 with this).
3 modes where a specific denial can be had:
1. Total denial of the allegations in the complaint with
accompanying statements in which he will have to rely his Rule 10 Amendment as a matter of right
defenses on Done before a responsive pleading is filed or before expiration
2. Part denial and part admission of the period to file such responsive pleadings.
3. Just a statement by defendant that he has no knowledge
or information about the truth of the allegation and Note: A general denial is allowed in Habeas Corpus cases, but
therefore defendant specifically denies the allegation expressly prohibited in Writ of Amparo and Habeas Data
cases.
Theoretically, the defendant can make use of any mode of
denial right away.
Counter-claim
The court has in several cases discouraged the 3rd mode of It is a claim made by a defendant against a plaintiff.
specific denial, and imposed some sanctions if a defendant
insists in using the 3rd mode as the only mode contained in his Permissive vs. Compulsory counterclaim.
answer. SC has given sanctions in several cases. SC held that
Study Compulsory Counterclaim as discussed in the Rules.
if the defendant had no knowledge or information on the
Compulsory Counterclaim Permissive Counterclaim
matter, defendant should explain why. Failure to do so, such
One which arises out of or is It does not arise out of nor is
denial will not be considered a specific denial. A general
necessarily connected with it necessarily connected with
denial will be treated as a judicial admission to the
the transaction or the subject matter of the
allegations contained in the complaint. Thus, a judgment
occurrence that is the opposing party’s claim
on the pleadings can be had upon motion of the plaintiff.
subject matter of the
opposing party’s claim
Another form of denial frowned upon by jurisprudence are the
(Sec.7, Rule 6)
following: “I specifically deny paragraph_ because I had not
It does not require for its It may require for its
dealt with the plaintiff” or “I specifically deny paragraph _ of
adjudication the presence of adjudication the presence of
the complaint.” They are considered as negative pregnant.
third parties of whom the third parties over whom the
They are specific denials that contain no ground relied
court cannot acquire court cannot acquire
upon in support of the denial, and thus are considered as
jurisdiction jurisdiction
general denial. The remedy of the defendant is to amend the
Barred if not set up in the Not barred even if not set
answer as a matter of right as provided in Rule 10.
action (Sec. 2, Rule 9) up in the action
Need not be answered; No Must be answered,:
 default Otherwise, default
Not an initiatory pleading. Initiatory pleading. (Riano,
Civil Procedure: A in the RTC. We cannot challenge the RTC’s jurisdiction by the
Restatement for the Bar, p.
336, 2009 ed.)
Need not be accompanied by Must be accompanied by a
a certification against forum certification against forum
shopping and certificate to shopping and whenever
file action by the Lupong required by law, also a
Tagapamayapa. certificate to file action by
the Lupong Tagapamayapa
(Santo Tomas University v.
Surla, G.R. No. 129718, Aug.
17, 1998) (2007 Bar
Question).
The court has jurisdiction to Must be within the
entertain both as to the jurisdiction of the court
amount and nature (Sec. 7, where the case is pending
Rule 6; Ibid p.331) and cognizable by regular
courts of justice otherwise,
defendant will have to file it
in separate proceeding which
requires payment of docket
fee
Compulsory Counterclaim filed in the RTC vs. that filed in
the MTC
A compulsory counterclaim filed in RTC cannot be a
compulsory counterclaim filed in the MTC.
Ex. Counterclaim filed in the RTC states that the case filed
was unjust and defendant claimed legal expenses amounting
to 200k. This is considered to be a compulsory counterclaim in
the RTC even if such amount is below the threshold for claims
amounts claimed in the counterclaim.
If the counter claim filed in the MTC by defendant was
claiming 500k in moral damages. Under the rules, this is no
longer a compulsory counterclaim, and treated as a permissive
counterclaim. The MTC can order dismissal of the
counterclaim, as the counterclaim is outside the jurisdiction of
the MTC.
If the amount to be recovered is beyond the jurisdictional
amount of the MTC, the compulsory counterclaim is
converted to a permissive counterclaim. If the amount to be
recovered is below the jurisdictional amount of the RTC, the
counterclaim is still treated as a compulsory counterclaim.
Reply
The filing of a reply is generally not necessary. It is in fact
next to useless.
Note: If a party does not file such reply. All the new matters
that were alleged in the answer are deemed controverted
(Sec. 10, Rule 6) (not deemed admitted).
The matters not answered in the reply are deemed
controverted (not admitted). In a complaint, if the allegations
therein are not specifically denied or were not dealt with in
the answer, they are deemed admitted. If the defendant does
not specifically deny or does not set up proper affirmative
defenses in the answer, the defendant is sanctioned by law.
This will lead the court to conclude that the defendant has
admitted all allegations in the complaint, and thus will lead to a
judgment on the pleadings.
But if the defendant filed an answer properly crafted,
introducing a new matter. The new matter asserts a
positive defense of extinguishment, for example, which
is a ground for a motion to dismiss. The plaintiff does
not file a reply. Is the plaintiff deemed to have admitted
the new matter?
No. The new matter alleged in the answer is deemed
controverted even without a reply. Plaintiff need not submit a
reply as the law itself that the new allegation or matter is
deemed controverted to be subjected to trial in the court.
Under Rule 16, the defendant can now ask for a preliminary
hearing to determine whether there was extinguishment or
not. But for purposes of a reply, there is no need for the
plaintiff to controvert the new matters. The second sentence
of the definition of a reply is the most important. All matters
alleged in the answer are deemed controverted, and a reply
need not be filed.
EXCEPTIONS:
1. Where the answer alleges the defense of usury in which
case a reply under oath should be made. Otherwise, the
allegation of usurious interest shall be deemed admitted. (NO
LONGER APPLICABLE)
2. Where the defense in the answer is based on an actionable
document, a reply under oath pursuant to Sec. 8 of Rule 8
must be made. Otherwise, the genuineness and due execution
of the document shall be deemed admitted.
Under our present rules, allegations of usury MUST be
contained in a complaint or similar pleadings. The law is
not specific, but given the liberal interpretation of the
rules, it leads to the conclusion that as long as the
allegations of usury are contained in a complaint or
similar pleading like counter-claim or cross-claim, there
is a need for specific denial. The responsive pleading
would be an answer, not a reply. If the allegation of usury is
contained in a counterclaim/cross-claim, the responsive
pleading is an answer to the counterclaim/cross-claim. If the
allegation of usury is contained in an answer, there is no need
to specifically deny in the reply.
The only exception applicable is when the answer is
founded on an actionable document. The law says that
when the defense is founded on an actionable document,
the plaintiff, if he wants to make a denial of the
actionable document, must do so specifically and under
oath. Otherwise, the genuineness and due execution of
that actionable document will be deemed admitted (a
judicial admission).
What is an actionable document?
A: Referred to as the document relied upon by either the
plaintiff and the defendant. (Araneta, Inc. vs. Lyric Factor
Exchange, Inc. 58 Phil 736) E.g. A promissory note in an action
for collection of a sum of money. (Riano, Civil Procedure: A
Restatement for the Bar, p. 101, 2009 ed.)
Note: This manner of pleading a document applies only to an
actionable document, i.e., one which is the basis of an action
or a defense. Hence, if a document does not have the
character of an actionable document, it need not be pleaded
strictly in the manner prescribed by the rules (Ibid p.102)
How are actionable documents pleaded?
A: By setting forth:
1. The substance of such document in the pleading and
attaching said document thereto as an exhibit
2. Include the contents of the document verbatim in the
pleading (Sec. 7, Rule 8).
Note: A variance in the substance of the document set forth
in the pleading and the document annexed thereto does not
warrant the dismissal of the action (Convets, Inc. v. National
Development Co., G.R. No. L-10232, Feb. 28, 1958). However,
the contents of the document annexed are controlling.
For example, the defendant alleges payment in his answer
supported by a receipt issued by the plaintiff, acknowledging
full liquidation of the indemnity. Under law, if the claim or
demand is based on an actionable document, it is imperative
upon the impleader to allege on the pleading the actionable
document.
Can the plaintiff simply file an affidavit in opposing the
actionable document?
The only way that a plaintiff can make a specific denial under
oath against the actionable document alleged in an answer is
by way of a reply. This is because, this is the only pleading
that is available that responds to an answer. If the plaintiff
makes a reply setting up a specific denial, he should also see
to it that the specific denial is under oath. If he did not do
so, the genuineness and due execution of the actionable
document is deemed admitted.
Take note of the exceptions in the Rules as to non-
availability of the judicial admission of the genuineness
and due execution of an actionable document if there is
no specific denial under oath. There are 2 exceptions:
1. When the adverse party does not admit being a party
to that document, or
2. Even if such party is a party to the document, there
being an order issued by the court for the inspection of
the original document, the said party does not comply
with that order.
The mode of impleading an actionable document was held
by the SC to be mandatory. If the party impleading such
did not follow the modes provided in the Rules for
impleading of an actionable document, the party will not
be allowed to present proof of his cause of action or
defense as the case may be, as the attachment of the
actionable document or adding of the contents of that
actionable document in the allegations of the pleadings
will adversely affect the other party.
Third/Fourth Party Complaint, Etc.
There can potentially be no end to the number of parties in
the complaint as long as the allegations in the pleadings have
something to do with the claim of the plaintiff in his
complaint. If you would notice among the pleadings, it is only
the third/fourth party complaint, etc. that would require
leave of court. The third/fourth party complaint, etc. must
allege that the third/fourth party defendant is liable to the
said third/fourth party plaintiff, by reason of contribution,
subrogation or any other relief in relation to the subject
matter of the claim in the complaint. The third/fourth party
complaint is always connected to the subject matter of the
complaint.
If a complaint for instance is for the recovery of an unpaid
loan, a third party complaint cannot contain a claim for the
recovery of ownership of a piece of land. The subject of the
third party complaint should always be related to the subject
of the complaint.
Why do we need leave of court in order to file a third
party complaint?
This is because a third party complaint will forcibly bring into
the action a stranger to the case. The third party defendant is
a stranger to the case. This is why the rules require that the
court should be given discretion whether to allow or not to
allow the third party complaint to see if there is a need to
bring a stranger to the case or even if there may be a need,
the claim is unrelated to the subject to the case. If the court
denies the motion for admission of a third party complaint,
the remedy of the defendant is to file a separate complaint
against the third party defendant.
It is in third party complaints that will best illustrate the
meaning of ancillary jurisdiction of a trial court.
Q: What is a third (fourth, etc.) party complaint?
A: A third (fourth, etc.) 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 contribution, indemnity, subrogation or
any other relief, in respect of his opponent's claim. (Sec.11,
Rule 6)
Q: Distinguish a third-party complaint from the rules on
bringing in new parties.
A: A third-party complaint is proper when not one of the
third-party defendants therein is a party to the main action.
Whereas in bringing in new parties, if one or more of the
defendants in a counterclaim or cross-claim is already a party
to the action, then the other necessary parties may be
brought in under the rules on bringing in new parties
Q: Why is leave of court necessary in third (fourth, etc.)
-party complaint?
A: To obviate delay in the resolution of the complaint such as
when the third-party defendant cannot be located; or
unnecessary issues may be introduced; or the introduction of
a new and separate controversy. (Herrera, Vol. I, p. 705, 2007
ed.)
Q: What are the tests to determine whether the third-
party complaint is in respect of plaintiff’s claim?
A:
1. Whether it arises out of the same transaction on which the
plaintiff’s claim is based, or, although arising out of another
or different transaction, is connected with the plaintiff’s
claim;
2. Whether the third-party defendant would be liable to the
plaintiff or to the defendant for all or part of the plaintiff’s
claim against the original defendant; and
3. Whether the third-party defendant may assert any
defenses which the third-party plaintiff has or may have to
the plaintiff’s claim.
Note: 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).
A third party complaint is not proper in an action for
declaratory relief. (Commissioner of Customs v. Cloribel, G.R.
No. L-21036, June 30, 1977).
Note: The court is vested with the discretion to allow or
disallow a party to an action to implead an additional party.
Thus, a defendant has no vested right to file a third party
complaint (China Banking Corporation vs. Padilla, G.R no.
143490, Feb. 2, 2007; Riano, p. 342, 2009 ed.).
Q: Abby obtained a favorable judgment against UNICAP
for a sum of money. For failure to get full payment, Abby
went after UNICAP’s debtor Ben. Ben is a policy holder of
Insular. The court’s sheriff then served a notice of
garnishment to Insular over several account receivables
due to Ben. Insular refused to comply with the order
alleging adverse claims over the garnished amounts. The
trial court ordered Insular to release to Abby the said
account receivables of Ben under the policies. Insular
then filed a petition for certiorari with the CA alleging
that the trial judge gravely abused his discretion when he
issued the garnishment order despite its adverse claim
on the garnished amounts. The CA gave due course to the
petition and annulled the order of the trial court. Is the
Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari is the
proper remedy from the denial of a third-party claim. Since
the third-party claimant is not one of the parties to the
action, he could not, strictly speaking, appeal from the order
denying its claim, but should file a separate reinvindicatory
action against the execution creditor or a complaint for
damages against the bond filed by the judgment creditor in
favor of the sheriff. The rights of a third-party claimant
should be decided in a separate action to be instituted by the
third person (Solidum v. CA, G.R. No. 161647, June 22, 2006).
Q: What is Doctrine of Ancillary Jurisdiction?
A: It involves the inherent or implied powers of the court to
determine issues incidental to the exercise of its primary
jurisdiction.
Note: Under its ancillary jurisdiction, a court may
determine all questions relative to the matters brought
before it, regulate the manner in which a trial shall be
conducted, determine the hours at which the witnesses
and lawyers may be heard, and grant an injunction,
attachment or garnishment.
Let us say that the subject of the complaint is the
recovery of 1M unpaid loan. The competent court is an
RTC. The defendant asks the court for permission to file
an answer with a third party complaint. In the third party
complaint, the defendant asserts that Juan de la Cruz is
bound to pay defendant the sum of 200K by reason of
contribution, indemnity, subrogation or any other relief.
With respect to the complaint, there is no question as to
jurisdiction as the competent court is really an RTC. It is
with respect to the third party complaint where a
jurisdictional issue is present. The third party complaint
is effectively a complaint filed by the defendant against
a stranger to the case, and the amount sought to be
recovered is 200k, which is an amount not within the
jurisdiction of the RTC. Can the court, upon motion by
the third party defendant, order the dismissal of that
third party complaint on the ground of lack of
jurisdiction over the subject matter of the case?
No. We apply rule of ancillary jurisdiction of a trial court. If
the trial court has jurisdiction over the principal complaint
filed by the plaintiff against the defendant, the same court
will exercise ancillary jurisdiction over all collateral pleadings,
incidental pleadings that are related to the complaint. Thus,
the third party complaint to recover 200k is still cognizable by
the same court.
Is it correct to say that third party complaint or fourth
party complaint would be the only pleadings which will
enable a litigant to bring in a stranger to the case? Can a
litigant bring in a stranger without a third or fourth
party complaint?
No. The Rule does not say that it is the only means/pleading
available to bring in a stranger to the case.
Can the defendant compel a stranger to be a party to the
case by filing a counterclaim or cross-claim?
The law authorizes the defendant to bring in a stranger by
filing a permissive or compulsory counter-claim. The law
authorizes the defendant to bring in a stranger to the case
through the filing of a cross-claim. Although the Rules
defines a cross-claim as a claim by a defendant against his
co-defendant, the Rules does not say that in filing a cross-
claim against a co-defendant that a third person can be
impleaded in the cross-claim.
In the definition of a counterclaim, the defendant could set up
the counterclaim against the plaintiff or against any party or
person who is not yet a party to the case, as long as the court
can acquire jurisdiction over the person of the said person.
Why do we allow a defendant to bring in a stranger to the
case by not using a third-party complaint but by cross-
claim or counterclaim, especially when such is
compulsory?
Because there is another provision in the Rules which say that
if there is a compulsory counterclaim or cross-claim not set
up in the answer, that compulsory counterclaim or cross-claim
are barred. If there is a need to implead a stranger, he should
be allowed to implead a stranger, although not via a third
party complaint.
Sec. 11 Rule 6 provides a cross-claim or counterclaim could be
the basis for the court to bring in a stranger to the case for
the complete determination of the issues.
FORMS OF A PLEADING
A pleading must always be signed. An unsigned pleading will be
treated as a sham pleading. You cannot submit an unsigned
pleading. The court motu propio can order the striking out of
the pleading.
Who will sign the pleading?
The litigant can sign the pleading. Or, his counsel can sign for
him. Either or both can sign the pleading.
Are there pleadings that are inadmissible by the court if
the only signature is that of the lawyer’s?
By way of exception, yes, in case of marriage annulment
cases, according to the SC Circular, the complaint and the
answer must be signed also by the party himself. If signed
only by the lawyer alone, the court will not accept the
pleading.
1. Petition for relief from judgment
2. Petition for review from the RTCs to the CA
But generally, the signature of the counsel is enough for a
pleading to be accepted by the court.
Q: What is the effect of lawyer’s signature?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the pleadings;
2. That to the best of his knowledge, information and belief
there is good ground to support it; and
3. That it is not interposed for delay. (Sec. 3, Rule 7)
VERIFICATION
Q: Is verification necessary in pleadings?
A: No, except when otherwise specifically required by law or
rule, pleadings need not be under oath, verified or
accompanied by affidavit. (Sec. 4, Rule 7)
Q: What is the significance of verification?
A: 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, 468 SCRA 358; Riano, Civil Procedure: A
Restatement for the Bar, p. 60, 2009 ed.)
Q: What are the pleadings that should be verified?
A: The following should be verified:
3. Petition for review from the CTA and quasi-judicial
agencies to the CA
4. Appeal by certiorari from the CA to the SC
5. Petition for annulment of judgments or final orders and
resolutions
6. Complaint for injunction
7. Application for appointment of receiver
8. Application for support pendente lite
9. Petition for certiorari against the judgments, final orders or
resolutions of constitutional commissions
10. Petition for certiorari, prohibition, mandamus, quo
warranto
11. Complaint for expropriation
12. Complaint for forcible entry or unlawful detainer
(1996 Bar Question)
Q: What are the effects of lack of verification?
A:
1. A pleading required to be verified but lacks the proper
verification shall be treated as an unsigned pleading (Sec. 4
as amended by A.M. 00-2-10, May 1, 2000). Hence, it
produces no legal effect (Sec. 3, Rule 7)
2. It does not necessarily render the pleading defective. It
is only a formal and not a jurisdictional requirement. The
requirement is a condition affecting only the form of the
pleading (Benguet Corp. v. Cordillera Caraballo Mission, Inc.,
G.R. No. 155343, Sept. 2, 2005) and non-compliance therewith
does not necessarily render it fatally defective (Sarmiento v.
Zaranta, G.R. No. 167471, Feb. 5, 2007)
3. The absence of verification may be corrected by
requiring an oath. The rule is in keeping with the principle
that rules of procedure are established to secure substantial
justice and that technical requirements may be dispensed with
13. Petition for indirect contempt
14. Petition for appointment of general guardian
15. Petition for leave to sell or encumber property of an estate
by a guardian
16. Petition for the declaration of competency of a ward
17. Petition for habeas corpus
18. Petition for change of name
19. Petition for voluntary judicial dissolution of a corporation;
20. Petition for correction or cancellation of entries in Civil
Registry.
in meritorious cases (Pampanga Sugar Development Co., Inc.
v. NLRC, G.R. No. 112650, May 29, 1997)
If the law requires a pleading to be verified, but the
pleading is not verified or there is insufficient
verification, the absence or insufficiency would mean
that the pleading is effectively an unsigned pleading.
Therefore it produces no legal effect.
With respect to verification, the general rule is we do not
require that pleadings should be verified. It is only in
instances where the law requires verification that the
pleading should be verified. Also, take note that Rule 7 is
very emphatic as to how to verify a pleading.
Q: How are pleadings verified?
A: 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 (Sec. 4, Rule 7)
If the verification is not according to the tone given in the
Rules, that will be an inadequate or insufficient verification.
And under Rule 7, the absence or inadequacy of the
verification shall result in an effectively unsigned pleading.
But the SC keeps on ignoring the Rules on verification.
Although it would appear in Rule 7 that absence of verification
could be a fatal defect, the SC keeps on ruling that the
absence of verification is only a formal defect. If you come
across a question concerning the need to verify a pleading or
determining the adequacy of a verification in a pleading, and
you are asked what is the effect, based on rulings by the SC,
in instances required by law for submission of a pleading with
an inadequate verification is only a formal defect.
A complaint, a permissive counterclaim, cross-claim, a
third/fourth party complaint, all of these being
initiatory pleadings, must have a certification of non-
forum shopping. Does it mean to say that Verification of
a pleading is now the general rule, given that in Rule 7,
initiatory pleadings must carry with them a certification
of non-forum shopping?
No. Certification of Non-forum shopping is different from
verification of a pleading.
Verification of a pleading refers to the allegations in the
pleading. The verification states that one has read the
pleading and that it is correct based on his personal knowledge
or based on authentic records. The contents of certification
of non-forum shopping does not have anything to do
with the contents of an initiatory pleading, as it simply
certifies that no similar case had been filed in any other
court, tribunal or body, and to notify the court right
away if one should come to know of such fact.
In the case of a Certification of Non-Forum Shopping, the SC
appears to have adapted the rule of substantial compliance as
to the requirements of the certification’s contents. Take note
that the Rules say that all principal plaintiffs should sign the
certification. Otherwise, the certification will be ineffective.
This defect is not curable by amendment under Rule 7.
There was a recent case wherein the complaint had 5 principal
plaintiffs and only two of them signed. The defendant
challenged the authority of the court receive the case as the
certification was ineffective. The court refused to dismiss the
case. The court said that it will go ahead with the case but will
drop the claims where the non-signing plaintiffs are
concerned. In effect, the court said the signature of the two
plaintiffs will of substantial compliance with the requirement.
As to the issue of a lawyer signing the certification of non-
forum shopping, the general rule being that a party himself
must sign, if the lawyer sign for the plaintiff, the lawyer must
be able to show his authority to do so via a special power of
attorney authorizing him to sign in the stead of his client.
REQUIREMENTS OF A CORPORATION EXECUTING THE
VERIFICATION/CERTIFICATION OF NON-FORUM
SHOPPING
Q: What is the rule when the plaintiff is a juridical
person?
A: The certification against forum shopping where the
plaintiff is a juridical entity like a corporation, may be
executed by properly authorized person. This person may
be a lawyer of a corporation. As long as he is duly
authorized by the corporation and has personal knowledge of
the facts required to be disclosed in the certification, such
may be signed by the authorized lawyer (National Steel
Corporation vs. CA, 388 SCRA 85; Riano, Civil Procedure: A
Restatement for the Bar, p. 70, 2009 ed.)
Q: Corporation XYZ is the petitioner in a civil case.
Alexander, president of corporation XYZ, signed the
certification against forum shopping in behalf of said
corporation without presenting any proof of authority
from the corporation. Is the certification against forum
shopping valid? If not, how may it be cured?
A: No. When the petitioner in a case is a corporation, the
certification against forum shopping should be signed by its
duly authorized director or representative. The authorized
director or representative of the corporation should be vested
with authority by a valid board resolution. A proof of said
authority must be attached with the certification (PAL v.
FASAP, G.R. No. 143088, Jan. 24, 2006).
RULE 9 (Effect of Failure to Plead) and Omnibus Motion
Rule
Basic Principles contained in Rule 9:
1. Omnibus Motion Rule – all objections that are not
included are deemed waived if not set up in the motion to
dismiss.
2. Because of the rules in joinder of causes and joinder of
parties, there could be several causes actions that can be
alleged in the complaint either joined or in the
alternative; there could be several defenses set up in the
answer, also either jointly or in the alternative. Rule 3 in
relation to Rule 9 also says that since there could be
alternative causes or defenses, we can also have joined
and/or alternative defendants.
Omnibus Motion Rule a defense is waived if not set in
defenses in the pleadings.
Q: What is the Omnibus Motion Rule?
A:
GR: All available grounds for objection in attacking a pleading,
order, judgment, or proceeding should be invoked at one time;
otherwise, they shall be deemed waived (Sec. 8, Rule 15).
XPN: The court may dismiss the case motu propio
based on:
1. Lack of jurisdiction over the subject matter;
2. Litis pendencia;
3. Res judicata; and
4. Barred by statute of limitations (Sec. 1, Rule 9)
Can there be a judgment in the alternative?
Yes. Note: Under Rule 60 (Replevin), in its Section 9,
alternative judgment may be had for either the delivery
of the personal property or the value thereof in case
delivery cannot be had or made, plus damages the party
may be able to prove and costs.
Nothing is mentioned in the rules about the propriety of a
complaint with plaintiffs named in the alternative, as
plaintiffs are named jointly. But if we follow the general rule
that pleadings should be liberally interpreted to provide for a
fast, speedy and inexpensive determination of the case, the
SC might allow a complaint where the plaintiffs are named in
the alternative, which is followed in the federal rules of
procedure in the US where plaintiffs can be named in the
Non-waivable defenses in civil procedure
Res judicata
Prescription
Lack of jurisdiction over the subject matter
Litis pendencia
Note: A previous decision or judgment will bar the filing of
another case similar or tackling the same issues, having the
same parties, and the same or related reliefs. In a civil case, it
is called res judicata, while in a criminal case, it is called
double jeopardy.
In the case of criminal cases, there is the defense that the
information does not charge an offense. In civil cases, this is
equivalent to Rule 16, failure to state a cause of action. In civil
cases, if the complaint does not properly allege a cause of
action and the complaint was not amended at all, where the
defendant does not file a motion to dismiss, the case went to
trial, and the plaintiff showed in the trial that he indeed has
alternative, causes of action, as well as defenses alleged in the
alternative. Unfortunately, one of the rules not incorporated
in our Rules was that of plaintiffs named in the alternative. By
express provision in the rules, we have defendants named in
the alternative, causes and defenses alleged in the alternative.
We can even have judgments in the alternative form.
With respect to the non-waivable defenses given in Rule 9, it
sounds better to compare the non-waivable defenses in civil
actions and non-waivable defenses in criminal cases.
Non-waivable defenses in criminal procedure
Double jeopardy
Prescription of the penalty imposed
Lack of jurisdiction over the subject matter
cause of action, the complaint is deemed amended. This is
called amendment to pleadings to conform to evidence.
Thus, in civil cases, the failure to state a cause of action or to
improperly allege such is waivable, the remedy being an
amendment to conform to evidence. The court may order
such amendment be made.
PRINCIPLE OF AMENDMENT OF PLEADINGS TO CONFORM
TO EVIDENCE
Amendment to pleadings may be made to conform to
presented evidence.
When may amendment be made to conform to or
authorize presentation of evidence?
A:
1. When issues not raised by the pleadings are tried with the
express or implied consent of the parties.
Note: Failure to amend does not affect the
result of the trial of said issue.
2. Amendment may also be made to authorize presentation of
evidence if evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings, if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby (Sec. 5, Rule 10).
The information submitted by the prosecutor did not
really allege a crime was committed. But the prosecutor
was able to show in court by the evidence presented that
indeed a crime was committed. Can amendment of
pleadings to conform to evidence be allowed in this case?
No, it cannot be allowed. It will violate the constitutional right
of the accused to be informed of the charges against him. We
can apply amendment of pleadings to conform to evidence in a
criminal case so long as the constitutional right of the
defendant is not violated.
DEFAULT
Q: When is a declaration of default proper?
A: If the defending party fails to answer within the time
allowed therefor, the court shall upon motion of the claiming
party with notice to the defending party, and proof of such
failure, declare the defending party in default (Sec. 3, Rule 9,
Rules of Court). (Riano, p. 507, 2005 ed.)
Q: In what situations where declaration of default is
proper?
A: It is proper in 3 situations:
1. Defendant did not file any answer or responsive pleading
despite valid service of summons;
2. Defendant filed an answer or responsive pleading but
beyond the reglementary period; and
3. Defendant filed an answer to the court but failed to serve
the plaintiff a copy as required by the Rules.
EFFECT OF AN ORDER OF DEFAULT
Q: What are the effects of an order of default?
A:
1. The party declared in default loses his standing in court.
The loss of such standing prevents him from taking part in the
trial [Sec. 3(a), Rule 9];
2. While the defendant can no longer take part in the trial, he
is nevertheless entitled to notices of subsequent proceedings
[Sec. 3 (a), Rule 9]. It is submitted that he may participate in
the trial, not as a party but as a witness; and
3. A declaration of default is not an admission of the truth or
the validity of the plaintiff’s claims (Monarch Insurance v. CA,
G.R. No. 92735, June 8, 2000).
RELIEF FROM AN ORDER OF DEFAULT
Q: What are the reliefs from an order of default?
A:
1. After notice of order and before judgment – The defendant
must file a verified motion to set aside the order of default
upon proper showing that:
a. His failure to answer was due to fraud, accident,
mistake or excusable negligence; and
b. That he has a meritorious defense. [Sec. 3(b), Rule 9]
(2000 & 1999 Bar Question)
2. After judgment and before judgment becomes final and
executory – He may file a motion for new trial under Rule 37.
He may also appeal from the judgment as being contrary to
the evidence or the law (Talsan Enterprises, Inc. v. Baliwag
Transit, Inc., G.R. No. 169919, Sept. 11, 2009)
3. After the judgment becomes final and executory – he may
file a petition for relief from judgment under Rule 38
(Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 12, 1992)
(2006, 1998 Bar Question)
4. Where the defendant has however, been wrongly or
improvidently declared in default, the court can be considered
to have acted with grave abuse of discretion amounting to lack
or excess of jurisdiction and when the lack of jurisdiction is
patent in the face of the judgment or from the judicial
records, he may avail of the special civil action of certiorari
under Rule 65 (Balangcad v. Justices of the CA, G.R. No.
83888, Feb. 12, 1992)
EFFECT OF A PARTIAL DEFAULT
Q: What is the effect of partial default?
A:
GR: The court will try the case against all defendants upon the
answer of some.
XPN: Where the defense is personal to the one who
answered, in which case, it will not benefit those who did not
answer e.g. forgery. (1995 Bar Question)
EXTENT OF RELIEF
Q: What is the extent of relief?
A: The judgment shall not exceed the amount or be different
in kind from that prayed for nor award unliquidated damages
[Sec. 3(d), Rule 9]. However, if the court orders submission of
evidence, unliquidated damages may be awarded based on
such.
ACTIONS WHERE DEFAULT ARE NOT ALLOWED
Q: When is default not allowed?
A:
1. Actions for annulment;
2. Declaration of nullity of marriage and legal separation [Sec.
3(e), Rule 9]; and
3. In special civil actions of certiorari, prohibition and
mandamus where comment instead of an answer is required
to be filed.
There are several instances where declaration of default is
prohibited like mortgage, the rules on summary procedures,
Writ of Amparo, Writ of Habeas Data, and marriage related
cases. It is not correct to say that it is absolute in civil actions
that if a defendant does not file his responsive pleading, he
can be declared in default. What is clear is the general rule: If
a complaint is filed, summons is served upon the defendant,
but defendant does file an answer within the reglementary
period, the defendant can be declared to be in default upon
motion of the plaintiff.
The court cannot motu propio declare the defendant in
default. Motion must be made by the plaintiff before
declaration of default can be had. Failure to file the motion
for declaration of default by the plaintiff can result to the
complaint being dismissed for failure to prosecute for an
unreasonable length of time under Rule 17. It is a dismissal
with prejudice.
Suppose Plaintiff files a motion for declaration of
defendant in default, but the motion was for that of an
ex-parte motion to declare defendant in default. The
reasoning is that since the defendant had not bothered
to file an answer, there is no use of serving notice to the
defendant. This is for the plaintiff to prevent the
defendant from entertaining the idea that he must file
an answer to prevent being declared in default. Is
plaintiff correct?
No. Rule 9 is very clear that a copy of the motion to declare
defendant in default should be served upon the defendant. If
such copy is not served upon the defendant, that motion will
not be acted upon by the court.
What if the defendant filed an answer after receiving a
copy of the motion to declare him in default, can the
court still declare him in default?
Yes, if the court follows strictly Rule 9. But, as a matter of
policy, an answer filed out of time will not result in the
defendant in being declared in default. SC held repeatedly
that as much as possible the technical aspects of default
should not be applied strictly in the interest of furtherance of
justice. Even if the period to answer has already expired, but
an answer is filed out of time, the courts will still admit that
answer and deny the motion to declare the defendant in
default. The reason why SC adopted this policy is because at
present, under Rule 9, if defendant is declared in default, the
court can right away render a judgment in default against
defendant without conducting a trial. Under Rule 9, the court
is given 2 choices: to render a judgment of default based on
the complaint (judgment on the pleadings), or to order the
complainant to present evidence ex-parte in support of his
allegations. At least in the second option, there can be
presentation of evidence, unlike in the first option where only
the pleadings will be the basis of the judgment. And if there is
a trial ex-parte on default ordered by the court, the
defendant will not be allowed to participate in the
proceedings, unless he is able to secure an order to lift the
default.
Rule 9 is very explicit in stating that the award in default
judgments cannot be greater than that prayed for in the
complaint, even if there is an ex-parte presentation of
evidence showing evidence thereto. This limiting of award is
only allowed in default cases where plaintiff is allowed to
present evidence ex-parte.
Default Under Rule 18 Pre-Trial
Plaintiff does not appear during pre-trial or failed to submit
pre-trial brief = dismissal of the complaint.
Defendant does not appear during pre-trial or non-submission
of pre-trial brief on time = ex parte presentation of evidence
by plaintiff and court can render judgment based thereon.
Comparison between Rule 9 and Rule 18 Default
Rule 9 Rule 18
In Rule 9, defendant shall be Under Rule 18, a plaintiff
declared in default for not shall be declared in default
filing an answer. for not appearing during
pre-trial or failure to submit
a pre-trial brief, while a
defendant shall be declared
in default for not appearing
or submitting a pre-trial
brief on time.
The court cannot grant a The court can grant a relief
relief more than that alleged more than that alleged,
in the complaint. based on what the plaintiff
can prove based on his
evidence presented.
In Rule 9, the defendant in In Rule 18, the defendant
default has not filed an already filed an answered.
answer at all. The court is The defendant’s failure to
considered to have been comply with attending a
taking pity on a defendant pre-trial conference or file a
who had surrendered. pre-trial brief is meted with
severe sanction. Also, the
fact that the court gives the
plaintiff the opportunity to
present his evidence, what
the plaintiff proves on
evidence shall be the basis of
the judgment of the court.
During ex parte presentation during pre-trial, the
plaintiff was able to prove damages of 2M. However, the
complaint alleges only 1M. The court awarded 2M. Is the
court correct? Why?
Yes, the court is correct. This is because the defendant has
failed to comply with a court order to either appear in pre-
trial or to submit a pre-trial brief, and thus the court can
sanction defendant at default. Also, since the court allows the
plaintiff, as provided under Rule 18, to present evidence to
prove his allegations, what the plaintiff was able to prove shall
be the basis of the court’s judgment.
PARTIAL DEFAULT
Partial default – one of several defendants, sued under a
common cause of action, is declared in default, while the
others can still participate in the case.
Default is founded on the premise that the defendant has
been served with summons but chose not to response within
the reglementary period.
Can there be a judgment in default against the non-
answering defendants?
No, the court cannot do that. In case of several defendants,
of which some have filed an answer, the most that the court
can do is to declare the non-answering defendants in default.
The court cannot declare the answering defendants in default
as there is no reason to do that. Insofar as the non-answering
defendant is concerned, they shall be declared in default but not the answering defendant is an indispensable party to the
there could be a separate judgment that will be rendered. case. If answering defendant is an indispensable party, then
the court should require the inclusion of such party. What the
Can the answering defendant call the defendants in court should do is to order the plaintiff to amend his pleadings
default as witnesses? and include the indispensable party. Failure to do so will be
dismissal of the complaint with prejudice under Rule 17. This is
Yes. Defendants declared in default can be witnesses,
because if answering defendant is an indispensable party but
although he will not be allowed to participate as a litigant.
he is not around, the proceedings of the court could be void, it
would be useless for the court to try the case. And under the
If the court finds for the answering defendant, will that
new doctrines enunciated by the SC, if an indispensable party
decision also affect the defendants declared in default?
has not been included or has been dropped from the case, the
Yes. Whatever happens to the case, the defendants in default court should compel the indispensable party to be impleaded
shall be subject to the decisions rendered. Thus, if the via an amendment to the complaint. Failure of plaintiff to do
answering defendant wins, the decision shall also be in favor so will allow the court to dismiss the case with prejudice under
of the defendants in default. This is one situation where a Rule 17 for refusal to obey a lawful court order.
defaulting defendant can prevail in the case. The reason is
that the non-answering defendants are sued under a common
Since it is disadvantageous for a non-answering
cause of action with answering defendants.
defendant to be declared in default, what are the
remedies given by law to the defaulting defendant?
In one case, the creditor who sued 2 defendants where
To file a motion to lift the order of default at any time before
one had answered and other failed to answer, and
judgment, the motion, filed with an affidavit of merit along
subsequently ordered by the court to be declared in
with his proposed answer, alleging the reasons of why he
default, his counsel most likely told him about this
defaulted and alleging that he has a good defense as stated in
principle in default. The plaintiff moved for the dismissal
the proposed answer.
of the complaint against the answering defendant. The
answering defendant did not object to the dismissal. The
If the motion to lift the order of default is denied, it is
case caption was then changed to plaintiff versus the
inappealable, being an interlocutory decision.
defendant in default. Can the court now ask for
presentation of evidence ex-parte? Denial to lift order of default – Rule 65 can be had, but
appellant must show that the court acted with lack or in
SC held that it is not necessary. Even if the answering
excess of jurisdiction
defendant has been dropped from the case upon the initiative
of the plaintiff, what the trial should examine is whether or
If the court has already rendered judgment by default (after
motion to life order of default has been denied), defendant
can appeal. A judgment by default is an adjudication on the
merits, hence appealable, Rule 65 is automatically non-
available as a rule.
If court lifted order of default, the defendant should file the
answer as soon as possible. The court, as a matter of public
policy, should allow the defendant who had been in default to
file his answer. The court should not deprive defendant the
right to present his side before the court.
RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS
Plaintiff filed a case for accion reinvindicatoria. The
assessed value of the property determined jurisdiction.
It was filed in the RTC. No allegation was included as to
the value of the property. Can RTC dismiss the case?
Yes. If the court is unable to determine that it has jurisdiction
over the case, as in this instant, it may dismiss the case for
lack of jurisdiction over the subject matter of the case.
Plaintiff failed to make the necessary jurisdictional
averment. Having discovered it, he amended the
complaint and submitted it prior to an answer made. Is
the plaintiff correct?
Yes. The amendment was an amendment as a matter of right.
The plaintiff has the right amend his complaint once before a
responsive pleading is filed, even to the extent of amending
the averment to confer jurisdiction. Thus, the plaintiff is
correct to amend his pleading to include the jurisdictional
averment.
This is applicable for example in unlawful detainer, wherein
the plaintiff failed to allege in his complaint that a final
demand had been made. Plaintiff may amend his complaint as
a matter of right to include the said allegation.
The plaintiff made a change in the cause of action in the
complaint, and the amendment was as a matter of right.
Is this allowed? What if an answer was already filed?
If amendment is a matter of right, the plaintiff can change his
pleading’s cause of action.
If amendment is not a matter of right, the plaintiff must be
authorized by the court (given leave) to amend the pleading to
include another cause of action or change a cause of action.
All pleadings can be amended as a matter of right or with
prior leave of court.
Philippine Ports Authority vs. Gothong 2008 (Change from
a complaint for specific performance to one for injunction.)
If amendment is a matter of right, the plaintiff can change his
pleading’s cause of action.
If amendment is not a matter of right, the plaintiff must be
authorized by the court (given leave) to amend the pleading to
include another cause of action or change a cause of action.
Change in the cause of action in the complaint is a matter of
discretion upon the court once an answer had already been
filed. As long as the amendment gives the parties the
opportunity to tell the court what is the true dispute between
the parties, and as long as it does not involve prejudice to
substantial justice. Hence, if the complaint was amended not
as a matter of right, the defendant can also amend his
answer, if needed, to properly respond to the amended
complaint. In the Gothong Case, the SC encouraged trial
courts to liberally the Rule on amendment of pleadings,
whether as a matter of right or as a matter of discretion.
Defendant can change his denials in his answer from general
to specific by filing an amended answer as a matter of right.
2nd, 3rd etc. amendment must be with leave of court.
Amendment as a matter of right can only be availed of
once, and it can be availed of only before an answer has
been filed.
Can we amend pleadings if the case has already been
decided and is on appeal either in the CA or SC?
Yes. Amendments can be done if it is only formal in nature.
But if the amendment is substantial, appellate courts will
hesitate as such amendment will injure the rights of parties
who had not appealed. What can be brought on appeal are
issues that have been raised from the trial court.
AMENDMENT TO CONFORM TO EVIDENCE UNDER RULE 10
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE
Q: When may amendment be made to conform to or
authorize presentation of evidence?
A:
1. When issues not raised by the pleadings are tried with the
express or implied consent of the parties.
Note: Failure to amend does not affect the result of
the trial of said issue.
2. Amendment may also be made to authorize presentation of
evidence if evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings, if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby (Sec. 5, Rule 10).
If the evidence presented by the plaintiff is not material to
the allegations in his complaint, and there is an objection by
the defendant, that objection should be sustained. But if the
presentation of evidence that is not material to the complaint
is not objected to, the court can motu propio tell the plaintiff
not to continue the presentation of that evidence. For
instance, the case if for accion reinvindicatoria, where the
issue is title to or possession of the real property. During the
trial, the plaintiff presented evidence that the defendant
owed him 3M, but not any evidence pertaining to the right of
possession of the real property. If you are the lawyer of the
defendant in this case, you will have to object that the
evidence presented is not material to the allegations of the
case for recovery of ownership and possession of real
property. If there is an objection raised by the defendant, the
court will sustain that objection, the plaintiff will not be
allowed to present his evidence concerning the 3M liability.
But if the defendant did not object, the court cannot refuse
to admit the evidence. The court cannot refuse to admit any
evidence not objected to by the other side.
 A: An amended pleading supersedes the pleading it amends.
When the time comes for the court to decide on the case, However, admissions in the superseded pleading can still be
can court will simply award the plaintiff 3M, although the received in evidence against the pleader. Claims or defenses
plaintiff has not alleged this fact at all in his complaint? alleged therein but not incorporated or reiterated in the
Yes. The reason is that rule in amendment to conform to amended pleading are deemed waived (Sec. 8, Rule 10).
evidence under Rule 10. There is no need for the plaintiff to
formally amend his pleadings, it takes place by operation of An amended pleading takes the place of the original
law in order to conform with the evidenced submitted by the pleading. Will the court discard the original pleading?
plaintiff. No, the court will retain the pleading for court record
purposes. Admissions made in superseded pleadings are
considered extra-judicial admissions. They can be rebutted.
Q: Distinguish an amended pleading from a supplemental
pleading. Admissions made in the original pleadings are still admissions,
A: but cannot be considered as judicial admissions. They are
Amended Pleading Supplemental Pleading mere extra-judicial admission by the person making it.
Refer to the facts existing at Refers to facts occurring
the time of filing of original after the filing of the A judicial admission is always conclusive. It cannot be subject
pleading original pleading. to rebuttal by evidence.
Supersedes the original, Merely supplements the
causes of action may be original pleading.
changed PERIOD TO FILE PLEADINGS
May be amended without Always with leave of court In the periods for filing of pleadings, there is nothing
leave of court before a mentioned as to the period as to when a complaint should be
responsive pleading is filed. filed. Nothing is fixed in the rules. The reason is that the
Amendment must be There is no such requirement filing of the complaint is solely dependent upon the whim of
appropriately marked. in supplemental pleadings the plaintiff. If SC does so fix such period, it will be invading
(Herrera, Vol. I, p. 854, 2007 the turf of substantive law. If there is a period fixed as to
ed.) when that complaint should be filed, it is determined by
substantive law so long as the complaint is filed within the
period of prescription. Prescription is a matter of substantive
EFFECT OF AMENDED PLEADING
law. With respect to counterclaim, cross-claim or third party
Q: What is the effect of an amended pleading?
complaint, there is a period fixed in the Rules. Of particular is
the period for filing a cross-claim and a compulsory counter-
claim. They must be filed within the period as that for the
filing of an answer.
Why?
Because even if the cross-claim, counter-claim or third-party
complaint are claim pleadings, the rules do not allow the
defending party to file an answer separately from a
counterclaim, cross-claim or a third-party complaint. Such
pleading must be included in his answer. Thus a defendant
must file an answer with a counterclaim, cross-claim or a
third-party complaint. Otherwise, defendant may file a
motion for leave to file an amended answer with cross-claim,
counterclaim, etc. With respect to a third-party complaint,
defendant would have to first file a motion for leave to file a
third-party complaint along with the amended answer,
attaching the amended answer to the motion.
Because of this rule, the filing of a compulsory counterclaim
should be the same as that provided for the filing of an
answer (15-30-60, as the case may be). If there is an answer
filed, but the defendant feels he should file a counterclaim,
he will have to file a motion for leave to file an amended
answer with counterclaim (with a copy of the amended answer
attached).
BILL OF PARTICULARS
Motion for leave to file bill of particulars – there is
inadequacy of the allegations contained in the complaint.
As a rule, Rule 16, as to a bill of particulars, the inadequacy of
the allegations in a complaint is not a ground for the filing of a
motion to dismiss the complaint.
Can there be an instance when a trial court may dismiss a
case on ground of inadequacy or vagueness in the
allegations in the complaint?
Yes, by way of exception. The only instance when a defendant
may file motion to dismiss due to vagueness or inadequacy of
the allegations in the complaint, instead of filing motion for
bill of particulars, is when the RTC is sitting as a
commercial court. In this case, where there is indefiniteness
or vagueness in the allegations of the complaint, defendant
may file a motion to dismiss. This is because, in commercial
courts, a motion for bill of particulars is forbidden as outlined
in the circular for commercial courts.
In ordinary civil cases, motion for bill of particulars is available
to both sides. They should be in the form of a motion.
While a motion for bill of particulars should comply with the
requisites of a motion, so as not to be deemed as a useless
piece of paper, when the motion is submitted to the court,
the court can act upon the motion right away, without waiting
for the hearing set for the motion, either granting or denying
such motion.
By its very nature, a motion for a bill of particulars should be
filed by a defendant before submitting an answer, or in case
of a plaintiff, a reply. It is useless if a defendant files a
motion for bill of particulars after he has already filed his
answer. It is understood that if a defendant has filed an
answer, it would mean that he has understood fully the
allegations stated in the complaint.
What is a bill of particulars and when can it be availed of?
A: Before responding to a pleading, a party may move for a
definite statement or for a bill of particulars of any
matter which is not averred with sufficient definiteness
or particularity to enable him properly to prepare his
responsive pleading. If the pleading is a reply, the motion
must be filed within 10 days from service thereof (Sec. 1,
Rule12). (2003 Bar Question)
Note: Its purpose is to aid in the preparation of a responsive
pleading. An action cannot be dismissed on the ground that
the complaint is vague or definite. (Galeon v. Galeon, G.R. No.
L-30380, Feb. 28, 1973).
If denied, the movant should file the required pleading in the
remaining period, which should not be more or less than 5
days.
But if the motion is granted, in case of a defendant, the court
will order the submission of an amended complaint or a bill of
particulars, which will form part of the allegations contained in
the complaint.
If the plaintiff does not obey the order of the court to
submit a bill of particulars, what is the remedy of the
defendant?
The remedy is either to strike out the parts of the pleading
that are vague. Or, the more practical move, the defendant
move to strike out the entire pleading, wherein the case is
dismissed.
The remedy if pleading still remains vague after bill was
approved and particulars were provided for:
1. Striking out parts still vague
2. Striking out the entire pleading (if it is a complaint, the
case is dismissed. If it is the answer stricken, motion for
declaration of defendant in default.)
If the defendant disobeyed the court order to amend his
answer or to supply bill of particulars, the situation will be as
if the defendant has not filed an answer at all. The next
recourse of the plaintiff is to file a motion to declare the
defendant in default. This is one instance where the
defendant can be declared in default even though he had filed
an answer on time. Therefore, if the defendant did not amend
his answer or file a bill of particulars, the court can order the
striking out of the answer and thereafter, upon motion, the
defendant can be declared in default. This Rule is found under
Rule 29 (Refusal To Comply With Modes of Discovery).
SUBSTITUTE SERVICE OF PLEADINGS AND MOTIONS VS.
SUBSTITUTE SERVICE OF SUMMONS
Filing and service of pleadings, motions and other papers
in the court:
Substitute service of pleadings, motions and other
papers: Motion/pleading/other papers cannot be served in
person or by registered mail. Movant should submit the
motion and the pleadings with the clerk of court with proof
that personal and mail service failed. Upon receipt of court,
substituted service is now completed.
Substitute service of summons: This is resorted to when
there is failure on the part of sheriff to serve summons in
person upon the defendant after several attempts and despite
diligent efforts. Sheriff then can serve the summons at the
resident of the defendant upon a person of sufficient age of
discretion, or instead of the residence, at his place of
business, upon a competent person in charge. The reason for
resorting to such substituted service must be explained.
If a movant files a motion against an adverse party, but
chooses a mode of service other than personal service, he
must explain the reason why. Recently this has been relaxed
by the court, depending on the nature of the case or
depending on the nature of the motion to be served or the
pleading filed in the court.
But in case of a motion to dismiss, the courts are very strict,
personal service is a must. If it was served by mail, the court
requires submission of proof of actual delivery/receipt by mail
(the registry return card). If such proof is not presented, the
court will not act on the motion to dismiss for failure to
observe the requirements concerning service of this important
motion.
SUMMONS
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of the
action brought against him (Gomez vs. Court of Appeals, G.R.
No. 127692, March 10, 2004). An important part of that notice
is a direction to the defendant that he must answer the
complaint within a specified period, and that unless he so
answers, plaintiff will take judgment by default and may be
granted the relief applied for ( Sec. 2, Rule 14). (Riano, p. 411 ,
2005 ed.)
Q: What are the purposes of summons?
A:
1. Actions in personam
a. To acquire jurisdiction over the person of the
defendant; and
b. To give notice to the defendant that an action has
been commenced against him (Umandap v. Sabio, Jr.,
G.R. No. 140244, Aug. 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 v. CA, G.R. No. 127692,
Mar. 10, 2004).
What is the effect of voluntary appearance before the
court? Explain.
A:
GR: The defendant’s voluntary appearance shall be equivalent
to service of summons and the consequent submission of
one’s person to the jurisdiction of the court (Sec. 20, Rule 14).
Note: Voluntary appearance cures the defect in the service of
summons.
XPN: 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 (Sec. 20, Rule 14; La Naval Drug Corp. v. CA, G.R.
No. 103200, Aug. 31, 1994).
Sec. 20, Rule 14, RoC
Instances when appearance of defendant is not
tantamount to voluntary submission to the jurisdiction
of the court:
(a) when defendant files the necessary pleading;
(b) when defendant files a motion for reconsideration of the
judgment by default;
(c) when defendant files a petition to set aside the judgment
of default;
(d) when the parties jointly submit a compromise agreement
for approval of the court;
(e) when defendant files an answer to the contempt charge;
(f) when defendant files a petition for certiorari without
questioning the court‘s jurisdiction over his person.
PERSONAL SERVICE
Q: When is personal service of summons proper?
A: Only if the suit is one strictly in personam. The service of
summons must be made by service in person on the
defendant. This is effected by handing a copy of the
summons to the defendant in person, or if he refuses to
receive it, by tendering the copy of the summons to him ( Sec.
6, Rule 14). (Riano, p. 423 , 2005 ed.)
SUBSTITUTED SERVICE
Q: When is substituted service of summons proper?
A: In our jurisdiction, for substituted service of summons to
be valid, it is necessary to establish the following:
1. The impossibility of service of summons in person within a
reasonable time;
2. The efforts exerted to locate the person to be served; and
3. Service upon a person of sufficient age and discretion in
the same place as the defendant or some competent person in
charge of his office or regular place of business (Sabio, Jr.,
339 SCRA 243 [2000]; Hamilton vs. Levy, G.R. No. 139283,
November 15, 2000). (Riano, p. 427 , 2005 ed.)
CONSTRUCTIVE SERVICE (BY PUBLICATION)
Q: Is leave of court required in constructive service of
summons?
A: This service always requires permission of the court.
Summons is the writ available to a trial court to enable the
court to acquire jurisdiction over the person of the defendant.
Although not the only writ available for the court to acquire
jurisdiction over the person of the defendant, it is the usual
writ used. The court can acquire jurisdiction over a defendant
by compulsion, even though it has not issued a summons. An
example is in the case of a special civil action under Rule 65,
certiorari, prohibition and mandamus.
Certiorari, prohibition and mandamus are special civil actions.
They are distinct from the case from which that order or
decision has originated. But in Rule 65, the Rules do not allow
the certiorari court or prohibition court to issue summons to Managing Partner, GM, Treasurer, Corporate Secretary
the defendant. What Rule 65 authorizes is to issue a notice to or in-house counsel of the corporation).In the Villarosa
defendant/respondent requiring him to submit a comment case, the branch manager was the one served with
before the court. That comment will enable the court to summons, which is not among those officers listed in the
acquire jurisdiction over the person of the respondent. Rules. Thus, the trial court did not acquire jurisdiction
over the corporation. This is still the rule observed.
There is even that mode of acquisition where the court need
not do anything, wherein a party makes a voluntary EB Villarosa & Partner Co. Ltd. Vs. Benito
appearance in court.
It should be noted that even prior to the
effectivity of the 1997 Rules of Civil Procedure,
strict compliance with the rules has been
Service of Summons upon a unregistered/unlicensed enjoined.  In the case of Delta Motor Sales
foreign corporation with no resident agent that Corporation vs. Mangosing, the Court held:
transacted in RP:
In a 2011 Circular, summons upon a foreign private corporation “A strict compliance with the
can be served in four ways, with leave of court: mode of service is necessary to
1. Personal service of summons upon a foreign private confer jurisdiction of the court
corporation not doing business in RP, with assistance of DFA over a corporation.  The officer
and the court of the country where the foreign corporation’s upon whom service is made must
main office is located; be one who is named in the
statute; otherwise the service is
2. Publication of the summons in the country where the
insufficient.  x x x.
foreign corporation has its office
3. By facsimile message or by any electronic device authorized The purpose is to render it
by the trial court reasonably certain that the
4. A combination of any one of the three as authorized by the corporation will receive prompt and
court. proper notice in an action against it
or to insure that the summons be
With respect to domestic private corporations, service of served on a representative so
summons must be effected as stated in the Villarosa vs. integrated with the corporation
Benito case. It must be served upon the officers of the that such person will know what
corporation stated specifically in the RoC (President, to do with the legal papers
 served on him.  In other words, ‘to
bring home to the corporation
notice of the filing of the action.’ x
x x.
The liberal construction rule
cannot be invoked and utilized as
a substitute for the plain legal
requirements as to the manner
in which summons should be
served on a domestic
corporation.  x x x.” (underscoring
supplied).
Service of summons upon persons other than
those mentioned in Section 13 of Rule 14 (old
rule) has been held as improper. Even under the
old rule, service upon a general manager of a
firm’s branch office has been held as improper as
summons should have been served at the firm’s
principal office.  In First Integrated Bonding &
Ins. Co., Inc. vs. Dizon, it was held that the
service of summons on the general manager of
the insurance firm’s Cebu branch was improper;
default order could have been obviated had the
summons been served at the firm’s principal
office.
And in the case of Solar Team
Entertainment, Inc. vs. Hon. Helen Bautista
Ricafort, et al. the Court succinctly clarified
that, for the guidance of the Bench and Bar,
“strictest” compliance with Section 11 of Rule 13
of the 1997 Rules of Civil Procedure (on Priorities
in modes of service and filing) is mandated and
the Court cannot rule otherwise, lest we allow
circumvention of the innovation by the 1997
Rules in order to obviate delay in the
administration of justice.
Accordingly, we rule that the service of
summons upon the branch manager of
petitioner at its branch office at Cagayan de
Oro, instead of upon the general manager at
its principal office at Davao City is
improper.  Consequently, the trial court did
not acquire jurisdiction over the person of
the petitioner.
The fact that defendant filed a belated
motion to dismiss did not operate to confer
jurisdiction upon its person.  There is no
question that the defendant’s voluntary
appearance in the action is equivalent to service
of summons. Before, the rule was that a party
may challenge the jurisdiction of the court over
his person by making a special appearance
through a motion to dismiss and if in the same
motion, the movant raised other grounds or
invoked affirmative relief which necessarily
involves the exercise of the jurisdiction of the
court, the party is deemed to have submitted
himself to the jurisdiction of the court. This
doctrine has been abandoned in the case of La
Naval Drug Corporation vs. Court of Appeals, et
al., which became the basis of the adoption of a
new provision in the former Section 23, which is
now Section 20 of Rule 14 of the 1997
 Rules.  Section 20 now provides that “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.” The
emplacement of this rule clearly underscores the
purpose to enforce strict enforcement of the
rules on summons.  Accordingly, the filing of a
motion to dismiss, whether or not belatedly
filed by the defendant, his authorized agent
or attorney, precisely objecting to the
jurisdiction of the court over the person of
the defendant can by no means be deemed a
submission to the jurisdiction of the
court.  There being no proper service of
summons, the trial court cannot take cognizance
of a case for lack of jurisdiction over the person
of the defendant.  Any proceeding undertaken
by the trial court will consequently be null and
void.
Service of summons in case of a partnership:
What the rules require is that summons must be made upon
a GM or managing partner as the case may be.
If there are 4 partners in the partnership, service upon
any of the partners will be a valid service of summons. All
partners under the NCC are considered as managing
partners. Since all partners under the NCC are presumed
to be managing partners, service upon anyone will be a
valid service of summons.
It is in the acquisition of jurisdiction over natural
persons that there is conflict in jurisprudence.
2006 case
Defendant owed money to a corporation. Defendant lived
in a gated subdivision. The sheriff was not allowed inside
the subdivision. What the sheriff did was to leave a copy
of the summons, together with the complaint, with the
guards. Is there valid service of summons?
To be literal, no, there was no valid substituted service of
summons. If the summons and the complaint were left only
with the security guard, it did not comply with leaving at the
place of residence of the defendant with some person of
suitable age and discretion then residing therein. The guards
do not actually reside in the place of residence of the
defendant.
The SC stated that the meaning of sufficient age and
discretion does not mean that the person to be served could
be a minor. This person means that this person should mean a
person at least 18 years of age with a relationship
involving confidence with the defendant. So, if the service
of summons was given to a person who was only a visitor of
the defendant, that will not comply with this requirement.
In this 2006 case, the SC became very liberal. Although it was
clear sheriff did not satisfy the requirements of a valid
service of summons, the SC ruled that the trial court did
acquire jurisdiction over the person of the defendant.
However, in 2009, the SC decided a case involving the validity
of a substituted service of summons not in accordance with
the Rules. If substitute service of summons is not in
accordance with Sec. 7 of Rule 14, the service is invalid, the
court does not acquire jurisdiction over the defendant. Any
proceedings taken by the court are invalidated.
Concentrate on Sec. 14, 15 and 16 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. (16a)
SEC. 15. Extraterritorial service.—When the
defendant does not reside and is not found in the
Philippines, and the action affects the personal
status of the plaintiff or relates to, or the
subject of which is, property within the
Philippines, in which the defendant has or claims
a lien or interest, actual or contingent; or in
which the relief demanded consists, wholly or in
part, in excluding the defendant from any
interest therein, or the property of the
defendant has been attached within the
Philippines, service may, by leave of court, be
effected out of the Philippines by personal
service as under section 6; or by publication in a
newspaper of general circulation in such places
and for such time as the court may order, in
which case a copy of the summons and order of
the court shall be sent by registered mail to the
last known address of the defendant, or in any
other manner the court may deem sufficient.
Any order granting such leave shall specify a
reasonable time, which shall not be less than
sixty (60) days after notice, within which the
defendant must answer. (17a)
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.
Former Procedure
Citizen’s Surety vs. Herrera (Service of summons for an
Action in personam – publication of summons with preliminary
attachment of properties)
Sheriff stated that the summons could not be served
personally or by substituted service. The plaintiff filed an ex
parte motion to issue a summons by publication. The court
granted it. Plaintiff caused the publication of the summons.
After 60 days, there was no responsive pleading. Plaintiff
filed a motion to declare defendant in default. During the
hearing of the motion, plaintiff presented the court the order
authorizing publication and affidavit of the publisher. Plaintiff
expected the court to grant his motion. The court did not, but
instead asked the plaintiff to explain why the complaint
should not be dismissed. The court stated that publication did
not enable the court to acquire jurisdiction of the court. The
requirement left out was a constitutional requirement of due
process, that the action was converted from one in personam
to that one in rem or quasi-in rem. This could be done, after
causing the publication of the service of summons, by
applying with the court for an order for preliminary
attachment of defendant’s personal properties in order to
acquire jurisdiction over the person over the defendant.
This conclusion by the plaintiff, aside from Rule 14 Sec. 15,
this is supported by Rule 57 Sec. 1.
Rule 57 SECTION 1. Grounds upon which
attachment may issue.—At the commencement
of the action or at any time before entry of
judgment, a plaintiff or any proper party may
have the property of the adverse party
attached as security for the satisfaction of
any judgment that may be recovered in the
following cases:
(a) In an action for the recovery of
a specified amount of money or
damages, other than moral and
exemplary, on a cause of action
arising from law, contract, quasi-
contract, delict or quasi-delict
against a party who is about to
depart from the Philippines with
intent to defraud his creditors;
(b) In an action for money or
property embezzled or fraudulently
misapplied or converted to his own
use by a public officer, or an officer
of a corporation, or an attorney,
factor, broker, agent, or clerk, in
the course of his employment as
such, or by any other person in a
fiduciary capacity, or for a willful
violation of duty;
(c) In an action to recover the
possession of property unjustly or
fraudulently taken, detained or
converted, when the property, or
any part thereof, has been
concealed, removed, or disposed of
to prevent its being found or taken
by the applicant or an authorized
person;
(d) In an action against a party who
has been guilty of a fraud in
contracting the debt or incurring
the obligation upon which the action
is brought, or in the performance
thereof;
 (e) In an action against a party who
has removed or disposed of his
property, or is about to do so, with
intent to defraud his creditors; or
(f) In an action against a party
who does not reside and is not
found in the Philippines, or on
whom summons may be served
by publication. (1a)
The court interpreted these provisions to mean that if there is
publication of the summons, there should be a proceeding
accompanying preliminary attachment over the personal
properties of the defendant. Otherwise, the court will be
unable to acquire jurisdiction over the person of the
defendant. If we are not able to convert the action in
personam to that in rem, the court will not be able to acquire
jurisdiction over the person of the defendant, and therefore,
the court will not have authority at all to entertain the case.
Note: If the court still did not still acquire jurisdiction
over the defendant despite the attachment of the
personal properties of the defendant, then the case will
be archived. There can be no dismissal of the case. No
prescription will run, since the complaint is archived.
Citizen’s Surety vs. Herrera Digest :
Facts:
Citizens Surety and Insurance Co (Citizens)
alleged that at the request of Santiago Dacanay,
it issued 2 surety bonds to guarantee payment of
P5K promissory notes  in favor Gregorio Fajardo
and  Manufacturers Bank & Trust Co
respectively. As security, the Santiago and
Josefina Dacanay executed an Indemnity
Agreement to jointly indemnify Citizens for
losses, costs and expenses (with 12% annual
interest) and a REM over a parcel of land in
Baguio. The Dacanays failed to pay the
promissory notes compelling Citizens to pay. The
Dacanays failed to reimburse Citizens however,
forcing the latter to cause the extra-judicial
foreclosure of the mortgage and file a case to
recover the unsatisfied balance.
At petitioner’s request, the respondent Judge
caused summons to be made by publication in
the Philippines Herald. But despite such
publication and deposit of copy with the Manila
post office, the defendant did not appear within
60 days from the last publication.
Plaintiff sought the defendants to be declared in
default, but the Judge eventually dismissed the
case, the suit being in personam and the
defendants not having appeared.
Issue:
W/N summons made by publication is sufficient
for the court to acquire jurisdiction
 Held:
No. In an action strictly in personam,
personal service of summons, within the
forum, is essential to the acquisition of
jurisdiction over the person of the
defendant, who does not voluntarily submit
himself to the authority of the court. In other
words, summons by publication cannot –
consistently with the due process clause in
the Bill of Rights – confer upon the court
jurisdiction over said defendants.
The proper recourse for the creditor is to
locate properties, real or personal, of the
resident defendant debtor with unknown
address and cause them to be attached, in
which case, the attachment converts the
action into a proceeding in rem or quasi in
rem and the summons by publication may be
valid.
Given the skill of debtors to conceal their
properties however, the decision of the
respondent Judge should be set aside and
held pending in the archives until petitioner
tracks down the whereabouts of the
defendant’s person or properties.
In 2008, Santos vs. PNOC was decided, which changed the
principles held under Citizen’s Surety vs. Herrera.
Santos vs. PNOC Defendant in an Action in personam can
be subject to court’s jurisdiction (2008)
The defendant did not file an answer within the reglementary
period. The lawyer of the plaintiff did not move for
publication of summons, but filed only a motion to allow him
to present evidence ex parte. The judge rendered a decision in
favor of the plaintiff. When defendant learned of the
decision, he moved for reconsideration thereof. The Court
then gained jurisdiction over the person of the defendant mad
a voluntary appearance when the defendant filed his motion
for reconsideration.
Santos vs. PNOC Digest
Facts: PNOC Exploration Corporation,
respondent, filed a complaint for a sum of
money against petitioner Pedro Santos Jr. in the
RTC of Pasig. The amount sought to be collected
was the petitioner’s unpaid balance of the car
loan advanced to him by respondent when he was
still a member of its board of directors.
Personal service of summons were made to
petitioner but failed because the latter cannot be
located in his last known address despite earnest
efforts to do so. Subsequently, on respondent’s
motion, the trial court allowed service of
summons by publication. Respondent caused the
publication of the summons in Remate, a
newspaper of general circulation in the
Philippines. Thereafter, respondent submitted
the affidavit of publication and the affidavit of
service of respondent’s employee to the effect
that he sent a copy of the summons by
registered mail to petitioner’s last known
address.
Petitioner still failed to answer within the
prescribed period despite the publication of
summons. Hence, respondent filed a motion for
the reception of its evidence ex parte. Trial court
granted said motion and proceeded with the ex
parte presentation and formal offer of its
evidence.
Petitioner filed an Omnibus Motion for
Reconsideration and to Admit Attached Answer,
alleging that the affidavit of service submitted
by respondent failed to comply with Section 19,
Rule 14 of the Rules of Court as it was not
executed by the clerk of court. Trial court denied
the said motion and held that the rules did not
require such execution with the clerk of court. It
also denied the motion to admit petitioner’s
answer because the same was filed way beyond
the reglementary period.
Petitioner appeals to the CA via a petition for
certiorari but failed and even sustained the trial
court’s decision and ordered the former to pay
the amount plus legal interest and cost of suit.
Hence, this petition.
Issues:
(1) Whether or not there is lack of jurisdiction
over the petitioner due to improper service of
summons.
(2) Whether or not the rule on service by
publication under Section 14, Rule 14 of the Rules
of Court applies only to actions in rem, not
actions in personam.
(3) Whether or not the affidavit of service of the
copy of the summons should have been prepared
by the clerk of court and not respondent’s
messenger.
Held:
(1) Section 14, Rule 14 provides that in any
action where the defendant is designated as
an unknown owner or the like or when 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
times as the court may order. Since petitioner
could not be personally served with summons
despite diligent efforts to locate his
whereabouts, respondent sought and was
granted leave of court to effect the service of
summons upon him by publication in a newspaper
of general circulation. Thus, petitioner was
proper served with summons by publication and
that there is jurisdiction over his person.
(2) The in rem/in personam distinction was
significant under the old rule because it was
silent as to the kind of action to which the
rule was applicable but this has been
changed, it now applies to any action. The
present rule expressly states that it applies “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.” Hence, the petitioner’s contention that
the complaint filed against him is not covered by
the said rule because the action for recovery of
sum of money is an action in personam is not
applicable anymore.
(3) The service of summons by publication is
complemented by service of summons by
registered mail to defendant’s last known
address. This complementary service is
evidenced by an affidavit “showing the
deposit of a copy of the summons and order
for publication in the post office, postage
for prepaid, directed to the defendant by
registered mail to his last known address”.
The rules, however, do not require that the
affidavit of complementary service be
executed by the clerk of court. While the
trial court ordinarily does the mailing of
copies of its orders and processes, the duty
to make the complementary service by
registered mail is imposed on the party who
resorts to service by publication.
Since 2008, the lawyers have made use of Santos vs. PNOC
as the authority to convince a trial court that there is no need
for a publication of summons for the issuance of a writ of
preliminary attachment before the court could acquire
jurisdiction over the person of the defendant.
In 2010, SC resolved another case, Palma vs. Galvez. In the
case of Palma vs. Galvez, the SC held that we should literally
apply what the Rules provides, particularly Section 16 of Rule
14. If you read Section 16, the defendant is a resident of RP
temporarily out of RP. In relation to Section 14, if the
whereabouts of the defendant is unknown, there could be
publication of summons, and that would enable the court to
acquire jurisdiction over the person of the defendant.
Palma vs. Galvez (When the whereabouts of defendant is
unknown, there is no need for publication of summons.)
Reiterates Santos vs. PNOC – there is no need , under
Sections 14 to 16 in Rule 14, for the conversion of an
action in personam to that in rem before a court could
acquire jurisdiction over the person of the defendant.
Now on the merits, the issue for resolution is
whether there was a valid service of summons on
private respondent.
 
         In civil cases, the trial court acquires
jurisdiction over the person of the defendant
either by the service of summons or by the
latter’s voluntary appearance and submission to
the authority of the former.  Private respondent
was a Filipino resident who was temporarily out
of the Philippines at the time of the service of
summons; thus, service of summons on her is
governed by Section 16, Rule 14 of the Rules of
Court, which provides:
                        Sec. 16. Residents
temporarily out of the Philippines.
– When an 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. (Emphasis
supplied)
 The preceding section referred to in the
above provision is Section 15, which speaks of
extraterritorial service, thus:
 
SEC. 15. Extraterritorial
service. ─ When the defendant does
not reside and is not found in the
Philippines, and the action affects
the personal status of the plaintiff
or relates to, or the subject of
which is, property within the
Philippines, in which the defendant
has or claims a lien or interest,
actual or contingent, or in which the
relief demanded consists, wholly or
in part, in excluding the defendant
from any interest therein, or the
property of the defendant has been
attached within the Philippines,
service may, by leave of court, be
effected out of the Philippines by
personal service as under section 6;
or by publication in a newspaper of
general circulation in such places
and for such time as the court may
order, in which case a copy of the
summons and order of the court
shall be sent by registered mail to
the last known address of the
defendant, or in any other manner
the court may deem sufficient.
Any order granting such leave shall
specify a reasonable time, which
shall not be less than sixty (60)
days after notice, within which the
defendant must answer.
   therefrom is the normal method of service
The RTC found that since private of summons that will confer jurisdiction on
respondent was abroad at the time of the service the court over such defendant.  In the same
of summons, she was a resident who was case, we expounded on the rationale in providing
temporarily out of the country; thus, service of for substituted service as the normal mode of
summons may be made only by publication. service for residents temporarily out of
  the Philippines.
We do not agree.  
    x x x  A man temporarily absent
from this country leaves a definite
In Montefalcon v. Vasquez, we said
place of residence, a dwelling where
that because Section 16 of  Rule 14 uses the
he lives, a local base, so to speak, to
words “may” and “also,” it is not mandatory.
which any inquiry about him may be
Other methods of service of summons
directed and where he is bound to
allowed under the Rules may also be availed
return. Where one temporarily
of by the serving officer on a defendant-
absents himself, he leaves his
resident who is temporarily out of
affairs in the hands of one who
the Philippines.  Thus, if a resident
may be reasonably expected to
defendant is temporarily out of the country,
act in his place and stead; to do
any of the following modes of service may be
all that is necessary to protect
resorted to: (1) substituted service set forth
his interests; and to
in section 7 ( formerly Section 8), Rule
communicate with him from
14;  (2) personal service outside the country,
time to time any incident of
with leave of court; (3) service by
importance that may affect him
publication, also with leave of court; or (4) in
or his business or his affairs. It is
any other manner the court may deem
usual for such a man to leave at his
sufficient.
home or with his business
 
associates information as to where
In Montalban v. Maximo, we held that
he may be contacted in the event a
substituted service of summons under the
question that affects him crops
present Section 7, Rule 14 of the Rules of
up. If he does not do what is
Court in a suit in personam against residents
expected of him, and a case comes
of the Philippines temporarily absent
 up in court against him, he cannot
just raise his voice and say that he
is not subject to the processes of
our courts.  He cannot stop a suit
from being filed against him upon a
claim that he cannot be summoned
at his dwelling house or residence or
his office or regular place of
business.
 
Not that he cannot be
reached within a reasonable time to
enable him to contest a suit against
him. There are now advanced
facilities of communication. Long
distance telephone calls and
cablegrams make it easy for one he
left behind to communicate with
him.  defendant.  Compliance with the rules regarding
 
Considering that private respondent was
temporarily out of the country, the summons
and complaint may be validly served on her
through substituted service under Section 7,
Rule 14 of the Rules of Court which reads:
 
SEC. 7. Substituted service.
— If, for justifiable causes, the
defendant cannot be served within
a reasonable time as provided in the
preceding section, service may be
effected (a) by leaving copies of
the summons at the defendant’s
residence with some person of
suitable age and discretion then
residing therein, or (b) by leaving
the copies at defendant’s office or
regular place of business with some
competent person in charge
thereof. 
 
         We have held that a dwelling, house or
residence refers to the place where the
person named in the summons is living at the
time when the service is made, even though
he may be temporarily out of the country at
the time.  It is, thus, the service of the
summons intended for the defendant that must
be left with the person of suitable age and
discretion residing in the house of the
the service of summons is as important as the
issue of due process as that of jurisdiction.
 
         Section 7 also designates the persons
with whom copies of the process may be left.
The rule presupposes that such a relation of
confidence exists between the person with
whom the copy is left and the defendant and,
therefore, assumes that such person will
deliver the process to defendant or in some
way give him notice thereof.
        
         In this case, the Sheriff's Return stated
that private respondent was out of the country;
thus, the service of summons was made at her
residence with her husband, Alfredo P. Agudo,
acknowledging receipt thereof. Alfredo was
presumably of suitable age and discretion, who
was residing in that place and, therefore, was
competent to receive the summons on private
respondent's behalf.
 
         Notably, private respondent makes no
issue as to the fact that the place where the
summons was served was her residence,
though she was temporarily out of the
country at that time, and that Alfredo is her
husband. In fact, in the notice of appearance
and motion for extension of time to file
answer submitted by private respondent's
counsel, he confirmed the Sheriff's Return
by stating that private respondent was out
of the country and that his service was
engaged by respondent's husband.  In his
motion for another extension of time to file
answer, private respondent's counsel stated
that a draft of the answer had already been
prepared, which would be submitted to
private respondent, who was in Ireland for
her clarification and/or verification before
the Philippine Consulate there.  These
statements establish the fact that private
respondent had knowledge of the case filed
against her, and that her husband had told
her about the case as Alfredo even engaged
the services of her counsel.
         
         In addition, we agree with petitioner that
the RTC had  indeed acquired jurisdiction
over the person of private respondent when
the latter's counsel entered his appearance
on private respondent's behalf, without
qualification and without questioning the
propriety of the service of summons, and
even filed two Motions for Extension of Time
to File Answer. In effect, private respondent,
through counsel, had already invoked the
RTC’s jurisdiction over her person by praying
that the motions for extension of time to
file answer be granted. We have held that the
filing of motions seeking affirmative relief,
such as, to admit answer, for additional time
to file answer, for reconsideration of a
default judgment, and to lift order of default
with motion for reconsideration, are
considered voluntary submission to the
jurisdiction of the court.    When private
respondent earlier invoked the jurisdiction of the
RTC to secure affirmative relief in her motions
for additional time to file answer, she
voluntarily submitted to the jurisdiction of
the RTC and is thereby estopped from
asserting otherwise.
 
         Considering the foregoing, we find that the
RTC committed a grave abuse of discretion
 amounting to excess of jurisdiction in issuing its
assailed Orders.
NOTE:
It would seem that the principle adhered to for a long
time since Citizen’s Surety vs. Herrera is no longer
binding upon plaintiffs. They can ignore the requirement
of prior attachment of personal properties of the
defendant before availing of a publication of summons to
enable a court to acquire jurisdiction over the person of
the defendant. Read over Sections 14, 15 and 16,
correlating them with the cases of Palma vs. Sanchez.
There is really no need for an action in personam to be
converted to an action in rem or quasi in rem, via a writ
of preliminary attachment, in order for a court to be able
to acquire jurisdiction over the person of the defendant.
What is the advantage of using these principle in
Citizen’s Surety vs. Herrera? (Actions in rem that is in
personam at the same time)
The advantage is that if the plaintiff first moves for
preliminary attachment over properties of the defendant and
then later ask the court for publication of summons, when
compared to just the plaintiff asking for publication of
summons without asking for preliminary attachment, is that
there is a security enjoyed by the plaintiff when the property
of the defendant is attached through a writ preliminary
attachment. If you read Rule 57, that is precisely the purpose
of preliminary attachment over the property of the
defendant, to provide security to the applicant to whatever
judgment rendered in favor of the plaintiff.
But the present tendency of the court is not to apply
anymore the principle in Citizen’s Surety vs. Herrera
insofar as publication of summons is concerned. There is
no more need for converting an action in personam to an
action in rem or quasi-in rem.
If there is a preliminary attachment of a property belonging to
the defendant, the act of actual attachment of the property is
the act which converts the case from in personam to that of
in rem or quasi-in rem. This is because the property is now
within the jurisdiction of the trial court.
MOTIONS
Q: What is a motion?
A: It is an application for relief other than by a pleading. (Sec.
1, Rule 15)
Q: What shall the notice of hearing specify?
A: It shall specify the time and date of the hearing which shall
not be later than ten (10) days after the filing of the motion
and it shall be addressed to the parties concerned (Sec. 5,
Rule 15).
Note: Failure to comply with the mandatory requirements of
the rule regarding notice of hearing is pro forma and presents
no question which merits the attention of the court
(Bacelonia v. CA, G.R. No. 143440, Feb. 11, 2003).
Q: What is the rule on hearing of motions?
A:
GR: Every written motion shall be set for hearing by the
applicant.
XPN: Motions which the court may act upon without
prejudicing the rights of the adverse party (Sec. 4, Rule 15).
General Rule: If not made in open court, it must be reduced
into writing. It must satisfy all the requirements in the Rules
concerning motions.
Requirements of a written motion:
1. service upon the adverse party
2. must be set for hearing
Notice of Hearing is usually addressed by lawyers to the
branch clerk of court. This is an error. The notice of hearing
MUST be addressed to the adverse party or the counsel
thereof. Remember that the SC has emphasized that a motion
that does not comply with the requirements set down in the
Rules shall be treated as a scrap of paper.
OMNIBUS MOTION RULE
Omnibus Motion Rule – all objections that are not
included are deemed waived if not set up in the motion to
dismiss.
Correlate with:
Non-waivable defenses: Res judicata; Prescription; Lack of
jurisdiction over the subject matter and Litis pendencia
In any civil proceeding, if there is an objection to any claim
contained in the motion or in another pleading, and these
objections are not set up in a motion or in another pleading,
these objections are deemed waived, except for non-waivable
defenses.
MOTION TO DISMISS
Motion to dismiss is prohibited in certain proceedings, as set
down by the Rules or based on circulars issued by the SC.
Summary Procedure and some special proceedings prohibit the
filing of a motion to dismiss. But in regular procedure, a
motion to dismiss is allowed in civil cases. Motion to Dismiss
under Rule 16 should be filed as a matter of general practice
before an answer can be filed by defendant.
Can the defendant properly file an answer and a motion
to dismiss at the same time?
Under Rule 16, it is allowed that the grounds for a motion
to dismiss to be simply incorporated in the answer. Under
Rule 16, if the defendant does submit his responsive pleading
right away, he can incorporate in his answer the grounds in
Rule as affirmative defenses. If a defendant files his answer
with affirmative defenses enumerated under Rule 16 as
grounds to dismiss, he being allowed to do that, once the
answer is filed with the court, the defendant can ask to court
to conduct a preliminary hearing on his affirmative defenses.
The court can grant it as if the defendant has filed previously
a motion to dismiss.
If the defenses are those that are non-waivable grounds for
dismissal, it is possible for the defendant to file motions to
dismiss one after another without violation of the Omnibus
Motion Rule.
Theoretically:
If the first motion to dismiss based on prescription is denied,
the defendant is allowed to file a second motion to dismiss
based on litis pendencia. If that is again denied, the defendant
files his 3rd motion dismiss founded on lack of jurisdiction
over the person of the defendant. If it is again denied, the
defendant can file a motion to dismiss based on res judicata.
Because of the application of these non-waivable defenses, it
is conceivable and it is proper for the defendant to
successively file motions to dismiss containing these non-
waivable defenses. A motion to dismiss founded on a waivable
defense shall preclude the filing of another motion to dismiss
based on other grounds under Rule 16, except those non-
waivable defenses. There will be waiver of the other grounds
because of the Omnibus Motion Rule, but not those defenses
which are non-waivable.
In the resolution of a motion to dismiss, Rule 16 gives to the
court three choices: grant the motion, deny the motion, or
order an amendment to the pleading.
Currently, there are now 4 options for the court to resolve a
motion to dismiss. The fourth option is by virtue of the law on
alternative disputes resolution.
4 options of the court:
1. grant
2. deny
3. order the amendment of the pleadings
4. refer the matter to conciliation or mediation or
arbitration, as the case may be, and suspend further
hearings
Is there any procedural advantage if the defendant
simply files an answer setting up as affirmative defenses
those enumerated in Rule 16?
Yes there is. If the defendant files an answer with affirmative
defenses based on grounds under Rule 16, and after
preliminary hearing of the affirmative defenses, the court
orders the dismissal of the case, the defendant will be given
an opportunity to recover his claim for damages based on any
counterclaims (compulsory or permissive) or whatever relief
he may have sought in his answer (answer with affirmative
defenses, permissive and compulsory counterclaims, and
other relief). You will note that in Rule 16, the dismissal will
not affect any counterclaim or cross-claim or any other claim
submitted by the defendant in his answer. The defendant
cannot file a Motion to Dismiss with a counterclaim or cross-
claim or any other claim submitted by the defendant before
the court. A motion to dismiss is not a pleading. It is only in an
answer where we can have a cross-claim against a co-
defendant or counterclaim against the plaintiff.
In a motion to dismiss, we can use of any grounds under Rule
16. But if the motion is found on a ground that is waivable, the
other grounds not cited are deemed waived, with exception to
those non-waivable grounds. Thus, if the defendant filed a
motion to dismiss solely on the ground of lack of jurisdiction
over the person of the defendant, which is a waivable
defense, and the motion was denied, the defendant is
precluded from filing a motion to dismiss based on the ground
of improper venue. What will be allowed would be the
succeeding motions to dismiss are grounded on non-waivable
defenses.
With respect to lack of jurisdiction over the subject matter or
over the nature of the case, this ground is dealt with in Tijam
vs. Sibonghanoy.
TIJAM vs. SIBONGHANOY Digest
January 08, 1963 – 5 days after the surety
received notice of the decision, it filed a motion
asking for extension of time within which to file
a motion for reconsideration. Appellee’s action
was filed in the Court of First Instance of Cebu,
July 19, 1948 for the recovery of 1,908.00 Pesos.
RA 296, Judiciary Act 1948 – Section 88 of which
placed within the jurisdiction of MTC all civil
actions where the value of the subject matter or
the amount of demand does not go beyond 2,000
Pesos, exclusive of interest and costs that the
Court of First Instance of Cebu has no
Jurisdiction.
The Court is in Opinion that Surety is now barred
by laches from invoking the plea at this late hour
for the purpose of annulling everything done
heretofore in the case with its active
participation.
Definition of Laches:
Failure of neglect, for an unreasonable and
unexplained length of time, to do that which, by
exercising due diligence, could or should have
been earlier, it is negligence or commission to
assert a right within a reasonable time,
warranting a presumption that the party entitle
to assert it has abandoned it or declines to assert
it.
Tijam vs. Sibonghanoy
In this case, the trial court did not have jurisdiction over the
subject matter of the case, but the defendant kept silent
about the issue of absence of jurisdiction, and allowed the
case to proceed up to the CA. Upon receipt of the adverse
decision in the CA, the appellee challenged the validity of the
decision of the RTC and the CA, stating that the court had
lacked jurisdiction from the start. SC held that there was
estoppel by laches. The case has been pending for 15
years up to the appeal, the defendant appearing in the
case for all those years. SC said that although the
decision may be challenged by lack of jurisdiction over
the subject matter even for the first time on appeal, the
defendant is guilty of estoppel by laches, by his
negligence to raise this issue as promptly as possible. He
can no longer challenge the decision of the court.
In Rule 9, there is no exception at all to non-waivable
defenses, including lack of jurisdiction over the subject
matter.
In Rule 47 (Annulment of Judgment), the Tijam Doctrine
was incorporated therein. Lack of jurisdiction over the
subject matter is excepted by estoppel by laches as a
defense.
Rule 47 SEC. 3. Period for filing action.—If based
on extrinsic fraud, the action must be filed
within four (4) years from its discovery; and if
based on lack of jurisdiction, before it is barred
by laches or estoppel.
This is an application of the Tijam Doctrine in our present
Rules. So, we still have laches or estoppel as a defense against
the non-waivable defense of lack of jurisdiction over the
subject matter.
In other cases, the SC also used another kind of estoppel in
order to bar the party from raising the issue of jurisdiction,
although the trial court REALLY DID NOT HAVE jurisdiction
over the subject matter.
Soliven vs. Fast Forms 2004(Estoppel in pais is a good
defense although there is lack of jurisdiction over the subject
matter)
The aggregate sum to be recovered was 800k. A complaint
for collection of money was filed in the RTC. The amount to
be actually collected was less than the jurisdictional amount of
the RTC based on BP 129 (exclude interest, damages, cost and
Attorney’s fees). There was an answer by defendant with a
counterclaim. The court, unaware it lacked jurisdiction over
the case, as nobody brought it up. The court rendered a
judgment in favor of the plaintiff. The counsel for the
defendant found that the court had no jurisdiction. The
defendant filed motion for reconsideration and raised lack of
jurisdiction, praying for dismissal of the case. RTC denied the
motion, as the defendant was in estoppel to challenge the
court’s jurisdiction just because an adverse result was had. It
reached the SC. SC held that the defendant cannot challenge
any more the jurisdiction of the court. SC stated that there is
estoppel in pais, the act of the defendant in actively
participating in the case and seeking affirmative relief via a
counterclaim renders defendant in estoppel to contest the
jurisdiction of the RTC, although the court may not really
have jurisdiction over the subject matter.
Facts: Marie Antoinette R. Soliven, petitioner,
filed a complaint for sum of money with
damages against Fast-Forms Philippines, Inc.,
respondent. The complaint alleges that
respondent, through its president Dr. Eduardo
Escobar, obtained a loan from petitioner in the
amount of PhP 170,000.00 payable within a
period of 21 days, with an interest of 3%. On the
same day, respondent issued a post-dated check
in favor of petitioner in the amount of PhP
175,000.00. About three weeks later,
respondent, through Dr. Escobar, advised
petitioner not to deposit the postdated check as
the account from where it was drawn has
insufficient funds. Instead, respondent proposed
to petitioner that the PhP 175,000.00 be “rolled-
over,” with a monthly interest of 5% which
petitioner agreed. Subsequently, respondent
issued several checks in the total of PhP
76,250.00 in favor of petitioner as payment for
interests corresponding to the months of June,
August, September, October and December.
Later, despite petitioner’s repeated demands,
respondent refused to pay its principal obligation
and interests due.
Respondent, in its answer with counterclaim,
denied that it obtained a loan from petitioner,
and that it did not authorize its then president,
Dr. Eduardo Escobar, to secure any loan from
petitioner or issue various checks as payment for
interests.
After trial on the merits, the court a quo
rendered a decision in favor of petitioner.
Respondent then filed a motion for
reconsideration questioning for the first time
the trial court’s jurisdiction. It alleged that since
the amount of petitioner’s principal demand (PhP
195,155.00) does not exceed PhP 200,000.00, the
complaint should have been filed with the MTC
pursuant to R.A. 7691.
Issue: Whether the trial court has jurisdiction
over the case
Held: YES. While it is true that jurisdiction
may be raised at any time, “this rule
presupposes that estoppel has not
supervened.” The Court has constantly
upheld the doctrine that while jurisdiction
may be assailed at any stage, a litigant’s
participation in all stages of the case before
the trial court, including the invocation of its
authority in asking for affirmative relief,
bars such party from challenging the court’s
jurisdiction. A party cannot invoke the
jurisdiction of a court to secure affirmative
relief against his opponent and after obtaining or
failing to obtain such relief, repudiate or
question that same jurisdiction. The Court
frowns upon the undesirable practice of a
party participating in the proceedings and
submitting his case for decision and then
accepting judgment, only if favorable, and
attacking it for lack of jurisdiction, when
adverse.
Is the Soliven case applicable to criminal cases?
No.

Figueroa vs. People 2009
The accused was arraigned for reckless imprudence resulting
to homicide. This was filed in the RTC instead of MTC. The
prosecutor was not aware of the RTC’s lack of jurisdiction.
The counsel of the accused also assumed the same. Nobody
raised the issue of jurisdiction in the RTC, so the case went
on. Trial was had, where both parties presented their
respective evidence. The accused was found guilty. On appeal,
the accused interposed the defense of lack of jurisdiction. The
solicitor general cited Soliven vs. Fast Forms as defense.
Active participation means that the litigant is in estoppel from
challenging the validity of the proceedings. The CA agreed
with the solicitor general.
SC held that the judgment is void as estoppel in pais is
inapplicable in a criminal case. Lack of jurisdiction in a
criminal case can be cited as a defense even on appeal.
The rights of the accused being at stake, estoppel in pais
is inapplicable.
When is a litigant estopped by laches from
assailing the jurisdiction of a tribunal? This is
the paramount issue raised in this petition for
review of the February 28, 2001 Decision of the
Court of Appeals (CA) in CA-G.R. CR No. 22697.
*******
On July 8, 1994, an information for reckless
imprudence resulting in homicide was filed
against the petitioner before the Regional Trial
Court (RTC) of Bulacan, Branch 18. The case was
docketed as Criminal Case No. 2235-M-94. Trial
on the merits ensued and on August 19, 1998, the
trial court convicted the petitioner as charged. In
his appeal before the CA, the petitioner
questioned, among others, for the first time,
the trial court’s jurisdiction.
The appellate court, however, in the challenged
decision, considered the petitioner to have
actively participated in the trial and to have
belatedly attacked the jurisdiction of the RTC;
thus, he was already estopped by laches from
asserting the trial court’s lack of jurisdiction.
Finding no other ground to reverse the trial
court’s decision, the CA affirmed the petitioner’s
conviction but modified the penalty imposed and
the damages awarded.
**********
The ruling in People v. Regalario that was based
on the landmark doctrine enunciated in Tijam v.
Sibonghanoy on the matter of jurisdiction by
estoppel is the exception rather than the rule.
Estoppel by laches may be invoked to bar the
issue of lack of jurisdiction only in cases in
which the factual milieu is analogous to that
in the cited case. In such controversies,
laches should have been clearly present; that
is, lack of jurisdiction must have been raised
so belatedly as to warrant the presumption
that the party entitled to assert it had
abandoned or declined to assert it.
In Sibonghanoy, the defense of lack of
jurisdiction was raised for the first time in a
motion to dismiss filed by the Surety almost 15
years after the questioned ruling had been
rendered. At several stages of the proceedings,
in the court a quo as well as in the Court of
Appeals, the Surety invoked the jurisdiction of
the said courts to obtain affirmative relief and
submitted its case for final adjudication on the
merits. It was only when the adverse decision
was rendered by the Court of Appeals that it
finally woke up to raise the question of
jurisdiction.
Clearly, the factual settings attendant in
Sibonghanoy are not present in the case at
bar. Petitioner Atty. Regalado, after the
receipt of the Court of Appeals resolution
finding her guilty of contempt, promptly
filed a Motion for Reconsideration assailing
the said court’s jurisdiction based on
procedural infirmity in initiating the action.
Her compliance with the appellate court’s
directive to show cause why she should not
be cited for contempt and filing a single
piece of pleading to that effect could not be
considered as an active participation in the
judicial proceedings so as to take the case
within the milieu of Sibonghanoy. Rather, it
is the natural fear to disobey the mandate of
the court that could lead to dire
consequences that impelled her to comply.
The Court, thus, wavered on when to apply the
exceptional circumstance in Sibonghanoy and on
when to apply the general rule enunciated as
early as in De La Santa and expounded at length
in Calimlim. The general rule should, however,
be, as it has always been, that the issue of
jurisdiction may be raised at any stage of the
proceedings, even on appeal, and is not lost by
waiver or by estoppel. Estoppel by laches, to
bar a litigant from asserting the court’s
absence or lack of jurisdiction, only
supervenes in exceptional cases similar to
the factual milieu of Tijam v. Sibonghanoy.
Indeed, the fact that a person attempts to
invoke unauthorized jurisdiction of a court
does not estop him from thereafter
challenging its jurisdiction over the subject
matter, since such jurisdiction must arise by
law and not by mere consent of the parties.
This is especially true where the person
seeking to invoke unauthorized jurisdiction
of the court does not thereby secure any
advantage or the adverse party does not
suffer any harm.
Applying the said doctrine to the instant
case, the petitioner is in no way estopped by
laches in assailing the jurisdiction of the
RTC, considering that he raised the lack
thereof in his appeal before the appellate
court. At that time, no considerable period
had yet elapsed for laches to attach. True,
delay alone, though unreasonable, will not
sustain the defense of "estoppel by laches"
unless it further appears that the party,
knowing his rights, has not sought to enforce
them until the condition of the party
pleading laches has in good faith become so
changed that he cannot be restored to his
former state, if the rights be then enforced,
due to loss of evidence, change of title,
intervention of equities, and other causes. In
applying the principle of estoppel by laches in the
exceptional case of Sibonghanoy, the Court
therein considered the patent and revolting
inequity and unfairness of having the judgment
creditors go up their Calvary once more after
more or less 15 years. The same, however, does
not obtain in the instant case.
We note at this point that estoppel, being in
the nature of a forfeiture, is not favored by
law. It is to be applied rarely—only from
necessity, and only in extraordinary
circumstances. The doctrine must be applied
with great care and the equity must be
strong in its favor. When misapplied, the
doctrine of estoppel may be a most effective
weapon for the accomplishment of injustice.
Moreover, a judgment rendered without
jurisdiction over the subject matter is void.
Hence, the Revised Rules of Court provides
for remedies in attacking judgments
rendered by courts or tribunals that have no
jurisdiction over the concerned cases. No
laches will even attach when the judgment is
null and void for want of jurisdiction. As we
have stated in Heirs of Julian Dela Cruz and
Leonora Talaro v. Heirs of Alberto Cruz,
It is axiomatic that the jurisdiction
of a tribunal, including a quasi-
judicial officer or government
agency, over the nature and subject
matter of a petition or complaint is
determined by the material
allegations therein and the
character of the relief prayed for,
irrespective of whether the
petitioner or complainant is entitled
to any or all such reliefs.
Jurisdiction over the nature and
subject matter of an action is
conferred by the Constitution and
the law, and not by the consent or
waiver of the parties where the
court otherwise would have no
jurisdiction over the nature or
subject matter of the action. Nor
can it be acquired through, or
waived by, any act or omission of
the parties. Moreover, estoppel
 does not apply to confer
jurisdiction to a tribunal that has
none over the cause of action. x
xx
Indeed, the jurisdiction of the court or
tribunal is not affected by the defenses or
theories set up by the defendant or
respondent in his answer or motion to
dismiss. Jurisdiction should be determined by
considering not only the status or the
relationship of the parties but also the
nature of the issues or questions that is the
subject of the controversy. x x x x The
proceedings before a court or tribunal
without jurisdiction, including its decision,
are null and void, hence, susceptible to direct
and collateral attacks.
Note from Dean Jara:
If you are confronted with a problem on lack of
jurisdiction in a civil case, apply Soliven case. If it is a
criminal case, adopt Figueroa.
NAPOCOR vs. Province of Quezon 2010 reiterated the
validity of Soliven in civil cases.
The NPC is estopped from
questioning the CBAA’s jurisdiction
The assailed CTA en banc decision brushed
aside the NPC’s sin perjuicio  arguments by
declaring that:
 
The court finds merit in [NPC’s] claim that
the Order of the LBAA of
the Province of Quezon is a sin
perjuicio decision.  A perusal thereof shows
that the assailed Order does not contain
findings of facts in support of the dismissal
of the case.  It merely stated a finding of merit
in the contention of
the Municipality of Pagbilao xxx.
 
However, on appeal before the CBAA,
[NPC] assigned several errors, both in fact
and in law, pertaining to the LBAA’s decision.
Thus, petitioner is bound by the appellate
jurisdiction of the CBAA under the principle
of equitable estoppel.  In this regard, [NPC]
is in no position to question the appellate
jurisdiction of the CBAA as it is the same
party which sought its jurisdiction and
participated in the proceedings
therein.  [Emphasis supplied.]
          We agree that the NPC can no longer
divest the CBAA of the power to decide the
appeal after invoking and submitting itself to
the board’s jurisdiction.  We note that even
the NPC itself found nothing objectionable in
the LBAA’s sin perjuicio decision when it filed
 its appeal before the CBAA; the NPC did not
cite this ground as basis for its appeal.  What
it cited were grounds that went into the merits
of its case. In fact, its appeal contained no
prayer for the remand of the case to the LBAA. 
 
A basic jurisdictional rule, essentially
based on fairness, is that a party cannot invoke
a court’s jurisdiction to secure affirmative
relief and, after failing to obtain the
requested relief, repudiate or question that
same jurisdiction.  Moreover, a remand would
be unnecessary, as we find the CBAA’s and the
CTA en banc’s denial of NPC’s claims entirely in
accord with the law and with jurisprudence.
The defendant has a problem when a court issues a
service of summons in violation of Rule 14. The defendant
must file a Motion to Dismiss on ground of lack of
jurisdiction over person of the defendant. If he does file
such motion, does not the defendant admit that the
court has jurisdiction over his person?
No. The filing of a motion to dismiss on that ground is the
only remedy available to him to tell the court that the court
had not acquired jurisdiction over his person. In court cases,
what the defendant can do is to tell that court right away
that his appearance before the court in filing the motion to
dismiss should be considered as a special appearance only for
the purpose of telling the court that the court has no
jurisdiction over his person.
Problem: Defendant must file a motion to tell the court of
this defense.
Solution: Inform the court that his appearance is a Special
appearance only.
This Special Appearance Rule stems from another principle in
the past that when a defendant files a motion to dismiss on
ground that the court did not acquire jurisdiction over his
person, when he adds another ground found in Rule 16 by
virtue of the application of the Omnibus Motion Rule, the
decisions of the SC then was then when another ground is
added in the motion to dismiss aside from lack of jurisdiction
over the person of the defendant, he waives the ground of
lack of jurisdiction over his person. This has been changed in
the present Rules.
Under Omnibus Motion Rule, defendant who files motion to
dismiss plus any other ground in rule 16 is NOW deemed not to
be a person over whom the court did not acquire jurisdiction
over his person. A defendant is free to file a motion to
dismiss, citing as one of his grounds lack of jurisdiction over
his person, he is not deemed to have waived his argument
that the court has not gained jurisdiction over his person.
Let us say that the defendant who claims that the court has
not acquired jurisdiction over his person does not respond to
the summons, as filing of an answer is a waiver of his defense
of lack of jurisdiction over his person. He received a copy of
the order of the court, and then following the Rules, the
defaulting defendant files a motion to lift the order of
default. The filing of a motion to lift the order of default is
acceptance by the defendant of jurisdiction of the court over
his person. In another instance, the defendant receives the
copy of the judgment of default, the defendant files a motion
for reconsideration and a motion for new trial. The motion for
reconsideration or new trial is a submission of the defendant
to the jurisdiction of the court over his person. This is the
reason why in Palma vs. Galvez, the defendant claims that the
court did not acquire jurisdiction over his person, and filed a
motion for new trial, he must qualify the motion must not be
treated as a voluntary submission of the defendant to the
jurisdiction of the court over his person. He must always
qualify his motion with that ground.
FAILURE TO STATE A CAUSE OF ACTION
SC in recent cases has emphasize the difference of lack
of a cause of action and failure to state a cause of action:
Failure to state cause of Lack of cause of action
action
Insufficiency in the Failure to prove or establish
allegations of the complaint by evidence one’s stated
cause of action
As a ground for dismissal
Raised in a motion to dismiss Raised in a demurrer to
under Rule 16 before a evidence under Rule 33 after
responsive pleading is filed the plaintiff has rested his
case
Determination
Determined only from the Resolved only on the basis of
allegations of the pleading the evidence he has
and not from evidentiary presented in support of his
matters claim
Failure to state a cause of action will be a ground to dismiss
because of immaturity. It assumes that the plaintiff really has
a cause of action, and the fault will be due to the lawyer who
crafted the complaint.
If there is an accion reinvindicatoria filed in the RTC, but
there is no stated assessed value of the property
involved, then the defendant may file motion to dismiss
for lack of jurisdiction for failure to state a cause of
action. A hearing was had. The plaintiff’s attorney failed
to see what the motion was about. The court will resolve
the motion purely on the allegations in the complaint.
(There is no need to present evidence in this case, as no
factual matter is in issue.) The court granted the motion.
The plaintiff’s lawyer received the order of dismissal, and
then he finally understood what was wrong with his
complaint. Can the lawyer for the plaintiff amend his
complaint?
Yes. The plaintiff can still amend his complaint in order to
incorporate the allegation the assessed value of the property.
This is because the order of dismissal will not be entered
until after the lapse of 15 days, and the plaintiff can still
amend and rectify the error committed by inserting the
assessed value of the property. He can do so as a matter
of right, because, according to SC, a motion to dismiss is
not a responsive pleading, and as long as the amendment
is the first amendment, under Rule 10, it is an
amendment is a matter of right. The defendant will have
to file an answer to the amended complaint.
Note:
In a hearing of a motion to dismiss grounded to lack of
jurisdiction over the subject matter, the court will not allow
presentation of evidence by the defendant. The reason is
because lack of jurisdiction over the subject matter is a purely
legal question and the only evidence to be taken into account
is the complaint itself, applying the principle that the court
acquires jurisdiction, under BP 129, based on the allegations
contained in the complaint. In the hearing of a motion, the
court will allow presentation of evidence ONLY if the question
that will be raised is a factual issue like the obligation has been
paid, waived or otherwise extinguished. Thus, in a motion to
dismiss on the ground of lack of jurisdiction over the subject
matter, the court will resolve the motion based on the
complaint itself. The court can easily resolve the said motion
based on the allegations in the pleading itself.
Based on the above problem, if the dismissal became
final and executory, what can the plaintiff do?
Under Sec. 5 Rule 16, the rule makes a distinction of an Order
of Dismissal under Rule 16 under letters f, h and i (in addition
to laches under the NCC) compared to other grounds, the
dismissal is subject to the right of appeal. The remedy of
the plaintiff is to appeal the order of dismissal.
If the case was dismissed on grounds not on letters f, h and I,
it means that we should not treat Rule 16 alone, but consult
other Rules to arrive at the correct remedy. We consult Sec. 1
under Rule 41. The dismissal is without prejudice.
Therefore, the dismissal should not be appealed.
Rule 16, SECTION 1. Grounds.—Within the time
for but before filing the answer to the complaint
or pleading asserting a claim, a motion to dismiss
may be made on any of the following grounds:
(a) That the court has no jurisdiction over
the person of the defending party;
(b) That the court has no jurisdiction over
the subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity
to sue;
(e) That there is another action pending
between the same parties for the same
cause;
(f) That the cause of action is barred by a
prior judgment or by the statute of
limitations;
(g) That the pleading asserting the claim
states no cause of action;
(h) That the claim or demand set forth in
the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise
extinguished;
(i) That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds; and
(j) That a condition precedent for filing
the claim has not been complied with.
SEC. 5. Effect of dismissal.—Subject to the right
of appeal, an order granting a motion to dismiss
based on paragraphs (f), (h) and (i) of section 1
 hereof shall bar the refiling of the same action or (d) An order disallowing or dismissing an
claim. appeal;
(e) An order denying a motion to set aside a
Grounds recognized under the law that will judgment by consent, confession or
render dismissal with prejudice under Sec. 5, compromise on the ground of fraud, mistake
Rule 16: or duress, or any other ground vitiating
Rule 16, f. Res judicata/statute of limitations consent.
Rule 16, h. paid, waived, abandoned, or (f) An order of execution;
otherwise extinguished (g) A judgment or final order for or against
Rule 16, i. unenforceable under statute of one or more of several parties or in separate
frauds claims, counterclaims, cross-claims and
third-party complaints, while the main case is
(NCC) laches (Should be included here. Dean
pending, unless the court allows an appeal
Jara)
therefrom; and
(h) An order dismissing an action without
In analyzing Rule 16, 17, 18 and 33, we should always
prejudice.
read these Rules in relation with Section 1 of Rule 41.
(i) Laches and any other means
recognized under the NCC (Dean Jara)
Rule 41, SECTION 1. Subject of appeal.—An
appeal may be taken from a judgment or
In all the above instances where the judgment or
final order that completely disposes of the
final order is not appealable, the aggrieved party
case, or of a particular matter therein when
may file an appropriate special civil action under
declared by these Rules to be appealable.
Rule 65.

No appeal may be taken from:

Why is it necessary to relate a motion to dismiss
under Rule 16 with Rule 41, which is a rule on
(a) An order denying a motion for new trial
appeal?
or reconsideration;
If you read Section 1 of Rule 41, there is an
(b) An order denying a petition for relief or
enumeration of orders where no appeal can be had,
any similar motion seeking relief from
although they are final in character.
judgment;
(c) An interlocutory order;
In the enumeration under Section 1 of Rule 41, the last item is
closely related to Rule 16, that it is a dismissal is without
prejudice. In Rule 16, what the Rule tells us is that under items
f, h and i of Sec. 5 Rule 16 are subject to appeal. That means
the dismissal is with prejudice as the remedy thereof is to
appeal.
But when the dismissal on other grounds other than items f, h
and i under Sec. 5 Rule 16, they are without prejudice. And
Section 1(h)Rule 41 tells the plaintiff that one of the recourses
available to him when the dismissal is without prejudice.
Appeal is not a remedy available to him.
The court issued an order of dismissal. What should the
plaintiff do?
The remedy available to the plaintiff is found under Sec. 1 of
rule 41 in order to challenge the order of dismissal that are
still appealable based on Sections 1 and 5 of Rule 16 (those not
under items f, h and i). Since an order of dismissal is not
appealable, then the plaintiff must file an appropriate petition
under Rule 65. The plaintiff may file a petition for certiorari
or prohibition with the CA or SC as the case may be.
Why do we allow the plaintiff to file a petition under Rule
65 challenging the dismissal of his complaint for lack of
jurisdiction, although the order of dismissal has already
been entered after the lapse of 15 day period?
Because under Rule 65, the period for filing the petition under
this rule is 60 days, not 15 days. So if the 15-day period for
entry of judgment has lapsed, the plaintiff has 45 days more
to file a petition under Rule 65.
But because the dismissal is without prejudice, the plaintiff
can forget about going to a higher court. Because if the
dismissal of his complaint was without prejudice, he has
another alternative: he can just file a new complaint in the
same court involving the same party with the complaint
impleading the necessary allegations.
If we compare this dismissal under Rule 16 based on lack of
jurisdiction on the ground of f, h and i, we can understand
why they are not appealable. The order of dismissal based on
these items will be a judgment on the merits. If the claim of
the plaintiff alleged in the complaint has really been paid,
waived, abandoned or otherwise extinguished as provided in
the NCC, then it would seem that he really has no claim at all
with the defendant, and thus the complaint is dismissed with
prejudice. If the allegation of the defendant is that the claim
has been paid, waived, abandoned or otherwise extinguished,
that motion presents a factual issue. During the hearing of
that motion, the defendant will be given an opportunity to
prove that the claim has really been paid, waived, abandoned
or otherwise extinguished. The hearing will be as if the court
was actually trying the case, the defendant being allowed to
present witnesses, or present evidence of his allegation that
the claim has been paid, waived, abandoned or otherwise
extinguished based on grounds recognized under substantive
law(enumerated in the NCC).
In fact, the court said that the results enumerated under
Section 16 is not exclusive. We should include laches. Under
the NCC, laches could extinguish an obligation.
Remember that procedurally, in a hearing on a motion to
dismiss based on a question of law to a motion to dismiss
founded on factual issue. If founded on a legal issue, the court
will not allow presentation of evidence. The court will simply
read the allegations in the complaint. If the issue is factual,
the court will be forced to conduct a hearing for presentation
of evidence therein.
Let us say that the defendant’s motion is founded on
letter h. During the hearing, the defendant presents
evidence. Then, the motion was submitted for resolution.
The court denies the motion. What is the next move for
the defendant if the motion is denied?
The defendant should file an answer during the remaining
period to file, which should not be less than 5 days from the
receipt of the order of denial.
The defendant files an answer. Can he incorporate the
ground in the motion to dismiss that was denied as an
affirmative defense?
Yes, the defendant is allowed to do that. Under our rules, if
there are objections or grounds not raised in the PLEADINGS,
these grounds are deemed waived.
Can the defendant, after filing his answer with his
affirmative defense move for a preliminary hearing on
his affirmative defense?
No, the court will not allow such a hearing anymore as there
had been a prior hearing for the same issue in the prior
motion to dismiss that was denied. Thus, although a
defendant is allowed to use his ground under Rule 16 in a
motion to dismiss that was denied as an affirmative defense,
he is not allowed to have another preliminary hearing as the
said defenses had been already subject to a hearing when the
said defenses were contained as a ground for dismissal in the
prior motion that was denied.
So, during the trial of the case, the defendant may be able to
present to the court additional evidence in order to prove such
ground under Rule 16 that he has relied upon.
RULE 41 SEC. 1 IN RELATION TO RULE 16 (DISMISSAL WITH
OR WITHOUT PREJUDICE)
Determine whether his dismissal is appropriate for
remedy under Rule 65 or an appeal.
Any dismissal by a court is a final order. But what matters is
to find out if the dismissal is with or without prejudice so as
to ascertain the remedy available. In dismissals under Rule 16,
if the grounds are letter f, h or i, then the dismissal is with
prejudice. The remedy of the plaintiff is to appeal from the
judgment.
Supposing the plaintiff commits an error in ascertaining the
dismissal, the dismissal actually being that with prejudice, and
plaintiff opts for Rule 65. The judgment became final after 15
days. 40 days after the judgment for dismissal was made, he
files a petition for certiorari. The petition for certiorari will be
dismissed as the proper remedy was to appeal. At this time,
he cannot appeal anymore as the time to appeal was 15 days
from receipt of the order of dismissal, it has long expired, and
the judgment has been entered and had become final. Also, he
cannot file another complaint, as the dismissal is with
prejudice.
If a dismissal is found under Rule 17, we follow the same
principle. Rule 17 also states about a dismissal with and
without prejudice. We follow the principle of dismissal under
Rule 41 in relation to Rule 16.
A dismissal under Rule 18 (failure to attend pre-trial or to file
pre-trial brief, tantamount to disobedience of court orders) is
with prejudice, and thus plaintiff must appeal.
A dismissal under Rule 33 (judgment on demurrer to evidence)
is a dismissal with prejudice as this is an adjudication on the
merits, and the remedy is to file an appeal from the order of
dismissal.
But if the dismissal is without prejudice, the plaintiff has not
much to worry. He can forget about Rule 41. He can file a
second complaint, but he must make sure it is properly
crafted. If the plaintiff files a second complaint, but it was
again dismissed, there is the probability under Rule 17
Section 1 that it will be a dismissal with prejudice under the
two-dismissal rule. Thus, if a complaint has been dismissed
twice, the second dismissal may operate as an adjudication of
the merits.
Rule 17 SECTION 1. Dismissal upon notice by
plaintiff.—A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any
time before service of the answer or of a motion
for summary judgment. Upon such notice being
filed, the court shall issue an order confirming
the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice,
except that a notice operates as an
adjudication upon the merits when filed by a
plaintiff who has once dismissed in a
competent court an action based on or
including the same claim.
Does it mean that a second dismissal is ALWAYS a
dismissal with prejudice?
No. The second dismissal will still be without prejudice as
provided for in Rule 17, unless there is a statement of such
dismissal being with prejudice in the notice of dismissal.
Dismissal under Rule 17, Sections 1, 2 and 3.
Indispensable party has not been impleaded = Dismissal
for failure to state a cause of action.
The theory behind is that a complaint must implead an
indispensable party at all times so as the court can have a final
determination of the case. This will be resolved by the court
under Rule 16, but availing of other modes of curing the
defect aside from dismissing the case. In the resolution of a
motion to dismiss, Rule 16 gives to the court three choices:
grant the motion, deny the motion, or order an amendment to
the pleading.
If an indispensable party has not been impleaded, the court
may simply order the plaintiff to amend his complaint to
include the indispensable party. The plaintiff can then just file
an amended complaint, and then the case can proceed until
the final determination of the case.
If the court ordered the amendment of the complaint to
include the indispensible party, the plaintiff failed to do
so, can the court dismiss the case?
Yes, the court may do so under Rule 17, and the dismissal is
with prejudice, under Section 3 of Rule 17, for failure to obey
a lawful order of the court. The remedy is to appeal.
Generally, the court is given discretion to state whether a
dismissal is with or without prejudice. But if the dismissal is
not qualified at all, Section 3 of Rule 17 is very clear, that
dismissal is with prejudice. Therefore, the remedy is to appeal
not to file a petition under Rule 65.
Note: Grounds for dismissal under Section 3 of Rule 17:
1. the plaintiff fails to appear on the date of the presentation
of his evidence in chief on the complaint,
2. failure to prosecute his action for an unreasonable length of
time,
3. failure to comply with these Rules,
4. failure to comply with any order of the court
Sections 1, 2 and 3 of Rule 17 provides grounds for dismissal,
and these sections also provides for the consequences of the
grounds of dismissal.
Section 1 Rule 17 provides for a plaintiff to dismiss his own
complaint.
Rule 17 SECTION 1. Dismissal upon notice by
plaintiff.—A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any
time before service of the answer or of a motion
for summary judgment. Upon such notice being
filed, the court shall issue an order confirming
the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except
that a notice operates as an adjudication upon
the merits when filed by a plaintiff who has once
dismissed in a competent court an action based
on or including the same claim.
If Plaintiff files complaint today. Plaintiff changed his
mind and moved to dismiss the case. The summons had
not been sent. What if the plaintiff dismissed his own
complaint via a motion?
The court will have the discretion whether to grant or deny
the motion.
The plaintiff should not dismiss his case via a motion. The
means for a plaintiff to dismiss his case is provided for under
Section 1, Rule 17.
What if a notice of dismissal was given instead?
The court is left without discretion as to what to do with the
complaint but to dismiss it. Filing of a timely notice of
dismissal will result in the dismissal of the case. The dismissal
is without prejudice, unless plaintiff tells the court that the
notice of dismissal is to be considered an adjudication on the
merits.
The case had been dismissed by the court because of the
plaintiff’s notice of dismissal. What if plaintiff changed
his mind after the order of dismissal? What can he do?
He needs to wait 15 days after the order of dismissal and ask
for revival of the case. No new complaint need be filed, and no
docket fees need be paid again.
Supposing the defendant filed motion to dismiss, and
subsequently the plaintiff filed notice of dismissal. How
can this be resolved?
SC held that the court should confirm the notice of dismissal
by the plaintiff. The plaintiff’s notice of dismissal prevails
over the motion to dismiss filed by defendant.
TWO-DISMISSAL RULE
Plaintiff files a collection case for 500k against
defendant. Defendant visits the plaintiff and asked the
plaintiff for the dismissal of the case, promising
payment. Plaintiff acquiesced and files notice of
dismissal. Court dismisses the case. The defendant failed
to pay. Can the plaintiff file another case against
defendant?
Yes, as the case was dismissed without prejudice.
The defendant again approached plaintiff, asking again
for time. Plaintiff again agrees, and files another notice
of dismissal. It is again dismissed. What will be the
effect?
The dismissal is with prejudice this time. If plaintiff files a
case for the same defendant for the same cause as the
defendant again failed to pay, the case will be dismissed as
the second dismissal is one with prejudice, and res judicata
will lie.
What if the defendant files motion to dismiss, but failed
to allege res judicata, can the court proceed to dismiss?
Yes, the court can do so, even if the defendant failed to allege
it. It is a non-waivable ground of dismissal, and anytime the
court discovers such fact, it will dismiss the case.
Can the court say in its decision of dismissal that the
second dismissal is without prejudice?
No. The court cannot say the second dismissal is without
prejudice as the law itself dictates that such dismissal is with
prejudice, and the court will have no discretion as to such
dismissal being with or without prejudice. As long as it is the
second dismissal of the same case, it will always be with
prejudice due to res judicata.
When can second dismissal is without prejudice under
Section 1 Rule 17?
There can be two situations where dismissal under
Section 1 Rule 17 is without prejudice?
1.If the first case was filed in a court which lacked jurisdiction
thereto, then the 2nd one was filed in the competent court
and there was a 2nd dismissal, the 2nd dismissal is not res
judicata. The two-dismissal rule will be considered if the case
had been filed in a court competent to hear it.
2. In Section 2 Rule 17, a plaintiff may dismiss his complaint via
a motion to dismiss. Here, the defendant had already filed an
answer. If the plaintiff seeks to dismiss the complaint, he
must file a motion to dismiss his complaint, copy furnished to
the defendant. The likelihood is that the defendant will not
object. If the defendant does not object, and the court
dismisses the case without prejudice, the plaintiff is allowed
to file another case against the same defendant based on the
same cause.
The defendant, however, is given under Section 2 a chance to
object. The defendant can insist that the dismissal be one
with prejudice. This is allowed as the dismissal is upon the
initiative of the plaintiff, and the defendant is given the
opportunity to object. If you were the defendant’s counsel,
advise the defendant to object, and state that the dismissal
should be one with prejudice. (I have no opposition to the
dismissal initiated by the plaintiff, as long as the dismissal is
with prejudice.) If that is the tenor of the dismissal, that is
res judicata. It will preclude the plaintiff from filing another
case with the same claims against the same defendant.
What if the defendant has a compulsory counterclaim?
There can be a dismissal, but defendant can ask that the court
should continue hearing on the counterclaim set up by
defendant in his answer. In the alternative, the defendant can
ask the court to try the compulsory counterclaim in a separate
case. This is one of the rare instances wherein a compulsory
counterclaim could survive without the principal action.
The general rule is that if the complaint is dismissed, the
compulsory counterclaim is also dismissed. But not in Section
2 Rule 17. The complaint could be dismissed, but the
compulsory counterclaim could survive. In fact the survival of
the compulsory counterclaim can even be threshed out in a
separate complaint, wherein there can be another complaint
filed by the former defendant against the former plaintiff.
But this will be an independent action.
The other alternative is that the plaintiff can ask the court for
the dismissal of the complaint but the court will continue to
exercise jurisdiction so that the court will continue to try the
compulsory counterclaim.
Rule 17, Section 3, Grounds of dismissal
~the plaintiff fails to appear on the date of the presentation
of his evidence in chief on the complaint,
~fails to prosecute his action for an unreasonable length of
time (nolle prosequi),
~fails to comply with these Rules
~ fails to comply with any order of the court,
Under this section, the initiative for the dismissal of the case
comes from the defendant or the court itself.
How can the court order a dismissal under Section 3 of
Rule 17 upon the ground that the plaintiff failed to obey
the provisions of the Rules of Court?
A good example can be had under Rule 18 on Pre-Trial. In Rule
18, it is provided expressly that after the last pleading is filed,
it is the duty of the plaintiff to set his complaint for pre-trial.
He must file a motion to have the complaint set for pre-trial.
When the plaintiff fails to set the hearing for pre-trial for, let
us say, one year ago up to the present, and there is a finding
that the plaintiff failed to do so, the court can dismiss the
case on the ground that the plaintiff failed to follow the
provision set upon in the Rules. This has been affirmed by the
SC. So, if it is the duty of the plaintiff to set the case for
pre-trial, and he neglects to do so for an unreasonable length
of time, there is every reason for the court to make use of
Rule 17, to order the dismissal of the case under Section 3
thereof. This is a dismissal with prejudice unless the court
makes the necessary qualification that it is a dismissal
without prejudice.
In most courts (RTC or MTC), if the court calls the case for
trial on the merits, and plaintiff does not appear during trial,
the lawyer for the defendant may ask for the dismissal under
Section 3, Rule 17 for failure of the plaintiff to prosecute for
an unreasonable length of time or for failure of the plaintiff
to appear on the date of the presentation of his evidence in
chief on the complaint. And usually, the trial court
accommodates the defendant’s move because if a trial court
dismisses the case, that is one case where the judge can
present that he has been resolving speedily the cases that are
assigned to him.
Last year, the SC came out with a resolution concerning this
particular provision in relation to Shimizu vs. Magsalin. Study
this case as it would be a good problem in the bar.
Shimizu vs. Magsalin 2008 – revolutionary decision
concerning dismissals with prejudice under Section 17
Order of dismissal with prejudice should comply with Rule
36 and the Constitution. Otherwise, it shall be open to
collateral and direct attack. (A trial court should always
specify the reasons for a complaint’s dismissal so that on
appeal, the reviewing court can readily determine
the prima facie justification for the dismissal)
The Dismissal  Order  is Void
 
          The nullity of the dismissal order is
patent on its face. It simply states its
conclusion that the case should be dismissed
for non prosequitur, a legal conclusion, but
does not state the facts on which this
conclusion is based.
 
          Dismissals of actions for failure of the
plaintiff to prosecute is authorized under Section
3, Rule 17 of the Rules of Court. A plain
examination of the December 16,
2003 dismissal  order shows that it  is an
unqualified order and, as such, is deemed to be a
dismissal with prejudice. “Dismissals of actions
(under Section 3) which do not expressly state
whether they are with or without prejudice are
held to be with prejudice[.]” As  a prejudicial
dismissal, the December 16,
2003 dismissal  order  is also deemed to be a
judgment on the merits so that the petitioner’s
complaint in Civil Case No. 02-488 can no longer
be refiled on the principle of res judicata.
Procedurally, when a complaint is dismissed for
failure to prosecute and the dismissal is
unqualified, the dismissal has the effect of an
adjudication on the merits. 
As an adjudication on the merits, it is
imperative that the dismissal order conform with
Section 1, Rule 36 of the Rules of Court on the
writing of valid judgments and final orders. The court? The December 16, 2003
rule states: dismissal order  does not say.
   
RULE 36 We have in the past admonished trial
Judgments, Final Orders and Entry courts against issuing dismissal orders similar to
Thereof that appealed in CA-G.R. CV No. 83096. A trial
  court should always specify the reasons for a
complaint’s dismissal so that on appeal, the
Section 1. Rendition of
reviewing court can readily determine
judgments and final orders.  — A
the prima facie justification for the
judgment or final order determining
dismissal. A decision that does not clearly and
the merits of the case shall be in
distinctly state the facts and the law on which it
writing personally and directly
is based leaves the parties in the dark and is
prepared by the judge, stating
especially prejudicial to the losing party who is
clearly and distinctly the facts
unable to point  the assigned error in seeking a
and the law on which it is based,
review by a higher tribunal.
signed by him, and filed with the
clerk of the court.  
  We thus agree with the petitioner that
the dismissal of Civil Case No. 02-
The December
488 constituted a denial of due process.
16, 2003 dismissal  order  clearly violates this
Elementary due process demands that the
rule for its failure to disclose how and why
parties to a litigation be given information
the petitioner failed to prosecute its
on how the case was decided, as well as an
complaint. Thus, neither the petitioner nor
explanation of the factual and legal reasons
the reviewing court is able to know the
that led to the conclusions of the
particular facts that had prompted the
court. Where the reasons are absent, a
prejudicial dismissal. Had the petitioner
decision (such as the December 16,
perhaps failed to appear at a scheduled trial
2003 dismissal  order) has absolutely nothing
date? Had it failed to take appropriate actions
to support it and is thus a nullity.
for the active prosecution of its complaint for an
unreasonable length of time? Had it failed to  
comply with the rules or any order of the trial For this same reason, we are not moved
by respondent FGU Insurance’s statement that
 the disposition of the present petition must be
limited to the issue of whether the CA had
correctly dismissed the appeal in CA-G.R. CV No.
83096.  This statement implies that we cannot
properly look into the validity of the December
16, 2003 dismissal  order in this Rule 45 petition.
A void decision, however, is open to collateral
attack. While we note that the validity of
the dismissal order with respect to Section 1,
Rule 36 of the Rules of Court was never
raised by the petitioner as an issue in the
present  petition, the Supreme Court is
vested with ample authority to review an
unassigned error if it finds that
consideration and resolution are
indispensable or necessary in arriving at a
just decision in an appeal. In this case, the
interests of substantial justice warrant the
review of an obviously void dismissal order.
A valid judgment must contain factual findings, it must
have conclusions as to the law available. If the court
simply says that the dismissal was for failure to
prosecute for an unreasonable length of time, that is not
a factual finding nor conclusion based on law, it is just a
conclusion of the court. The SC said that for a trial court to
render a valid judgment, the court should explain why and
how the court came to the conclusion that the plaintiff is
guilty of nolle prosequi. The court should give instances
pertaining to the records of the case that enabled the court to
conclude that the plaintiff has failed to prosecute for an
unreasonable length of time. Without such explanation, even
if the judgment is entered, it can be subjected to direct or
collateral attack.
If there is an adjudication upon the merits, when the order is
simply an order of dismissal, under Rule 17 or even under Rule
16, for the validity of that final order of dismissal, there
should be an explanation of how and why there is a dismissal
of the case, the dismissal being a final adjudication of the
case.
An order of dismissal with prejudice under Rules 16, 17, 33
or even under any rule allowing dismissal of the action,
the order of dismissal, if it is going to be considered an
adjudication of the merits, must comply with the
requirements of Section 1, Rule 36. Non-compliance
thereto, the dismissal is an void judgment which can be
subjected to direct or collateral attack.
RULE 18 PRE-TRIAL
Mandatory in all cases, even in summary procedure, where it
is called a preliminary conference. It is present even in small
claims procedure, where there is a semblance of pre-trial in
the preliminary conference under the Judicial Dispute Rule.
It is the duty of the plaintiff to schedule his complaint for
pre-trial after the last pleading has been filed. Failure to do
so, the case may be dismissed with prejudice. But again, the
order of dismissal should order why and how the court has
arrived at the conclusion that the plaintiff has waived or not
obeyed the RoC. This rule on pre-trial has been modified by
the SC, applying the rules of mediation and conciliation.
The Trial Court calls the parties to pre-trial. The parties are
told to attend a mediation/conciliation process by accredited
mediators/conciliators. The case might be terminated while in
this process. The mediator/conciliator usually issues notices
to the parties as to the schedule of the mediation/conciliation
conference. If the plaintiff does not appear for
mediation/conciliation, he repeatedly ignores such notices
sent as to the schedule of the mediation/conciliation
conference, the mediator/conciliator will submit a report
thereof to the trial court. It can be a ground of dismissal with
prejudice, according to SC Circulars. If a court orders that the
parties should attend a mediation/conciliation conference,
such conference is deemed part of the pre-trial process. It is
tantamount to the plaintiff absenting himself from a hearing
in the trial, and thus a violation of an order of the court. Thus,
such disobedience by the plaintiff shall be a ground for
dismissal with prejudice.
If mediator/conciliator fails in the attempt to settle, they will
file a report and recommend proceeding to a pre-trial proper.
Parties will be ordered to submit pre-trial brief and attend the
pre-trial conference.
There are now several layers that the SC Circulars introduced
that will enable a trial court to enforce the state policy in the
NCC which encourages the parties to settle their case
amicably, one of which is the mediation/conciliation
conference as part of the pre-trial conference.
Basing on Rule 18, the parties have a common duty for
purposes of pre-trial:
1. submission of a pre-trial brief
2. attend the pre-trial conference
If any one of them fails to submit a pre-trial brief, there are
serious sanctions imposed. Even if they have timely submitted
their pre-trial brief but if one party was absent in the pre-
trial conference, there are serious consequences.
Sanctions for failure to attend pre-trial conference or to
file brief:
Plaintiff = dismissal of complaint with prejudice;
Defendant = plaintiff is allowed to present his evidence ex
parte.
We do not observe anymore the principle that if the
defendant was unable to attend the pre-trial conference, or
he fails to submit a pre-trial brief on time, the court can no
longer issue an order declaring the defendant in default. What
the court will do is order the plaintiff to present evidence ex-
parte. The decision of the court will be based on such
evidence.
EX-PARTE PRESENTATION OF EVIDENCE UNDER RULE 18
VS. EX PARTE EVIDENCE UNDER RULE 9
Ex Parte Evidence under Rule 18 – Defendant has filed an
answer but fails to submit pre-trial brief or did not attend
pre-trial conference, plaintiff can be ordered to present
evidence ex parte, court will make an award according with
the evidence presented by plaintiff (application of
amendment to pleadings in order to conform to
evidence).
Ex Parte Evidence under Rule 9 – Defendant is in default,
ex parte evidence can be presented, and the court will only
award those reliefs prayed for in the complaint.
Note: Amendment of pleading to conform to evidence is not
applied in an ex-parte presentation of evidence under Rule 9
when the defendant is in default.
Rules applicable to pre-trial conference in a civil vs.
criminal case = usual Bar Q source
Effect of pre-trial in civil case and criminal case about
stipulations of facts.
Civil case – stipulations of facts can be had; joint
stipulation of facts can be had; in pre-trial conferences,
parties are encouraged to agree on existence of certain
facts, making them part of the records of the case;
Verbal stipulations of facts can be allowed and
considered valid. These stipulations need not be
presented in evidence, as the court will take judicial
notice of these stipulations, and will be considered as
judicial admissions.
Criminal case – stipulation of facts should be reduced
into writing, signed by the counsel of the accused and
accused himself, and approved in court. Otherwise, it will
be inadmissible in court.
Pre-trial Order – court are required to issues such order
after the termination of the pre-trial conference, stating
therein the matters to be taken up and will serve to control
the proceedings in trial proper. The court is required to
specify the issues that have not been stipulated upon and
what should be the object of the trial whenever the court
finds it necessary to conduct a trial. This is an important
document in a civil case insofar as the triable issues are
concerned.
If we follow the decisions of the SC, the issues that are
specified in a pre-trial order in a civil case, since they control
the proceedings to be taken thereafter by the court, the court
can even disregard the pleadings submitted by the parties
after the pre-trial.
Facts:
The complaint was for collection of sums of money
amounting to 1M. During pre-trial, the parties agree that
the real issue is to recover possession and ownership
from defendant a piece of land, instead of collection of
1M as stated in the complaint. That is the issue embodied
in the pre-trial order. Is the pre-trial order valid?
Yes. Although it is in conflict with pleadings, Rule 18 is very
clear that it is the pre-trial order that will govern the
proceedings, not the pleadings.
Although we learn in Evidence that the issues are those found
in the pleadings in a civil case, the triable issues for the
purposes of a civil case are those found in the pre-trial order.
There is nothing wrong in a civil case if we start with a
collection of money case that is converted to a recovery of
property case in pre-trial, even without amending the
complaint. This is because what governs the course of the
proceedings is the triable issue that is specified in the pre-
trial order, as specified under the last section of Rule 18.
Thus, in our last example, the court will simply ignore the
issue as to the claim for a sum of money, as the issue to be
tried will be the issue on the recovery of possession and
ownership of a piece of land, the issue found in the pre-trial
order.
Why do we allow the trial court to change the issues
without changing the pleadings?
This is because, during the pre-trial hearings, the parties are
present therein. And if they both agreed to the change of
issues in open court, such as changing the issues of the
complaint from collection for sums of money to that of
recovery of possession and ownership of property, then the
court will be simply following the desire of the litigants as to
what issue to be tried during the trial.
This is allowed in civil cases only. It is inapplicable in a criminal
case.
Let us say the court strictly follows the pre-trial order, and
then reminds the parties that the issue in the trial will be the
recovery by the plaintiff of possession and ownership of the
property from the defendant. And during the trial, the
plaintiff was able to show that he was indeed entitled to
recover, then there is nothing wrong with that as the evidence
is relevant and material.
What if during the trial, the plaintiff also presented
evidence that he is also entitled to recover 1M along with
the property, will it be allowed?
He cannot, if the defendant objects. But, if the defendant
failed to object to such evidence, the plaintiff will be able to
present evidence on an issue not raised in the pre-trial order.
Why do we allow the plaintiff to present evidence on an
issue not raised in the pre-trial order, about his
entitlement to recover from the defendant the amount
of 1M?
This is because of the rule of amendment to conform to
evidence. In a civil case, we can jump from one issue to
another so long as parties agree. The issue in the pre-trial
order could be different from that raised in the pleadings, and
even issue tried during trial could be different from that
raised in the pre-trial order. The parties are given much
flexibility and allowance in a civil case to present evidence on
any issue they so desire. The only limitation is that the other
party might object to evidence presented that is not related
to the issue found in the pre-trial order, that the evidence is
irrelevant and immaterial. If evidence is allowed, the court
shall issue judgment based on evidence presented, based on
the rule of amendment to conform to evidence.
ALTERNATIVE DISPUTE RESOLUTION
NCC – Compromises and Arbitration
NCC expresses the policy of the state that the courts should
encourage litigants to settle disputes amicably or to submit to
arbitration if they cannot voluntarily agree to settle the
dispute by themselves.
Domestic Arbitration Act –RA 876
Law on ADR – gave autonomy to contracting parties in
submitting their disputes to alternative modes of dispute
resolution, including prerogative to agree on the procedure to
be followed in case they enter into any mode of ADR.
There are 3 recent cases dealing with ADR. The principles
formed in these 3 cases formed the circular on arbitration.
Gonzales vs. RTC(2007 case)
Thus, the main issue raised in the Petition
for Certiorari is whether it was proper for
the RTC, in the proceeding to compel
arbitration under R.A. No. 876, to order the
parties to arbitrate even though the
defendant therein has raised the twin issues
of validity and nullity of the Addendum
Contract and, consequently, of the
arbitration clause therein as well. The
resolution of both Climax-Arimco’s Motion for
Partial Reconsideration and/or Clarification in
G.R. No. 161957 and Gonzales’s Petition for
Certiorari in G.R. No. 167994 essentially turns on
whether the question of validity of the
Addendum Contract bears upon the applicability
or enforceability of the arbitration clause
contained therein. The two pending matters
shall thus be jointly resolved.
***
We address the Rule 65 petition in G.R. No.
167994 first from the remedial law
perspective. It deserves to be dismissed on
procedural grounds, as it was filed in lieu of
appeal which is the prescribed remedy and at
that far beyond the reglementary period. It
is elementary in remedial law that the use of an
erroneous mode of appeal is cause for dismissal
of the petition for certiorari and it has been
repeatedly stressed that a petition for certiorari
is not a substitute for a lost appeal. As its
nature, a petition for certiorari lies only where
there is “no appeal,” and “no plain, speedy and
adequate remedy in the ordinary course of law.”
The Arbitration Law specifically provides for
an appeal by certiorari, i.e., a petition for
review under certiorari under Rule 45 of the
Rules of Court that raises pure questions of
law. There is no merit to Gonzales’s
argument that the use of the permissive
term “may” in Sec. 29, R.A. No. 876 in the
filing of appeals does not prohibit nor
discount the filing of a petition for certiorari
under Rule 65. Proper interpretation of the
aforesaid provision of law shows that the term
“may” refers only to the filing of an appeal, not
to the mode of review to be employed. Indeed,
the use of “may” merely reiterates the principle
that the right to appeal is not part of due
process of law but is a mere statutory privilege
to be exercised only in the manner and in
accordance with law.
***
The situation in B.F. Corporation is not availing in
the present petition. The disquisition in B.F.
Corporation led to the conclusion that in order
that the question of jurisdiction may be
resolved, the appellate court had to deal first
with a question of law which could be addressed
in a certiorari proceeding. In the present case,
Gonzales’s petition raises a question of law,
but not a question of jurisdiction. Judge
Pimentel acted in accordance with the
procedure prescribed in R.A. No. 876 when he
ordered Gonzales to proceed with arbitration
and appointed a sole arbitrator after making
the determination that there was indeed an
arbitration agreement. It has been held that
as long as a court acts within its jurisdiction
and does not gravely abuse its discretion in
the exercise thereof, any supposed error
committed by it will amount to nothing more
than an error of judgment reviewable by a
timely appeal and not assailable by a special
civil action of certiorari. Even if we overlook
the employment of the wrong remedy in the
broader interests of justice, the petition
would nevertheless be dismissed for failure
of Gonzalez to show grave abuse of
discretion.
***
Thus, we held in Manila Electric Co. v. Pasay
Transportation Co. that a submission to
arbitration is a contract. A clause in a contract
providing that all matters in dispute between the
parties shall be referred to arbitration is a
contract, and in Del Monte Corporation-USA v.
Court of Appeals that “[t]he provision to
submit to arbitration any dispute arising
therefrom and the relationship of the parties
is part of that contract and is itself a
contract. As a rule, contracts are respected
as the law between the contracting parties
and produce effect as between them, their
assigns and heirs.”
The special proceeding under Sec. 6 of R.A. No.
876 recognizes the contractual nature of
arbitration clauses or agreements. It provides:
SEC. 6. Hearing by court.—A party
aggrieved by the failure, neglect or
refusal of another to perform under
an agreement in writing
providing for arbitration may
petition the court for an order
directing that such arbitration
proceed in the manner provided for
in such agreement. Five days’
notice in writing of the hearing of
such application shall be served
either personally or by registered
mail upon the party in default. The
court shall hear the parties, and
upon being satisfied that the
making of the agreement or such
failure to comply therewith is not
in issue, shall make an order
directing the parties to proceed to
arbitration in accordance with the
terms of the agreement. If the
making of the agreement or default
be in issue the court shall proceed
to summarily hear such issue. If
the finding be that no agreement
in writing providing for
arbitration was made, or that
there is no default in the
proceeding thereunder, the
proceeding shall be dismissed. If
the finding be that a written
provision for arbitration was
made and there is a default in
proceeding thereunder, an order
shall be made summarily directing
the parties to proceed with the
arbitration in accordance with the
terms thereof.
The court shall decide all motions,
petitions or applications filed under
the provisions of this Act, within
ten days after such motions,
petitions, or applications have been
heard by it. [Emphasis added.]
***
Implicit in the summary nature of the
judicial proceedings is the separable or
independent character of the arbitration clause
or agreement.  This was highlighted in the cases
of Manila Electric Co. v.  Pasay  Trans.
Co.  and Del Monte Corporation-USA v. Court of
Appeals. 
 
The doctrine of separability, or
severability as other writers call
it,  enunciates that an arbitration agreement
is independent of the main contract.  The
arbitration agreement is to be treated as a
separate agreement and the arbitration
agreement does not automatically terminate
when the contract of which it is part comes
to an end. 
The separability of the arbitration
agreement is especially significant to the
determination of whether the invalidity of
the main contract also nullifies the
arbitration clause.  Indeed, the doctrine
denotes that the invalidity of the main
contract, also referred to as the “container”
contract, does not affect the validity of the
arbitration agreement.  Irrespective of the
fact that the main contract is invalid, the
arbitration clause/agreement still remains
valid and enforceable.
 
The separability of the arbitration
clause is confirmed in Art. 16(1) of the
UNCITRAL Model Law and Art. 21(2) of the
UNCITRAL Arbitration Rules.
The separability doctrine was dwelt upon at
length in the U.S. case of Prima Paint Corp. v.
Flood & Conklin Manufacturing Co. In that case,
Prima Paint and Flood and Conklin (F & C)
entered into a consulting agreement whereby F
& C undertook to act as consultant to Prima
Paint for six years, sold to Prima Paint a list of
its customers and promised not to sell paint to
these customers during the same period. XXX
XXX The parties should be ordered to
arbitration if, and only if, they have
contracted to submit to arbitration. Prima
Paint was not entitled to trial on the question
of whether an arbitration agreement was
made because its allegations of fraudulent
inducement were not directed to the
arbitration clause itself, but only to the
consulting agreement which contained the
arbitration agreement. Prima Paint held that
“arbitration clauses are ‘separable’ from the
contracts in which they are embedded, and
that where no claim is made that fraud was
directed to the arbitration clause itself, a
broad arbitration clause will be held to
encompass arbitration of the claim that the
contract itself was induced by fraud.”
There is reason, therefore, to rule against
Gonzales when he alleges that Judge Pimentel
acted with grave abuse of discretion in ordering
the parties to proceed with arbitration.
Gonzales’s argument that the Addendum
Contract is null and void and, therefore the
arbitration clause therein is void as well, is not
tenable. First, the proceeding in a petition
for arbitration under R.A. No. 876 is limited
only to the resolution of the question of
whether the arbitration agreement exists.
Second, the separability of the arbitration
clause from the Addendum Contract means
that validity or invalidity of the Addendum
Contract will not affect the enforceability of
the agreement to arbitrate. Thus, Gonzales’s
petition for certiorari should be dismissed.
DOCTRINE OF SEPARABILITY OR SEVERABILITY
The invalidity of the main contract, also referred to as
the “container” contract, does not affect the validity of
the arbitration agreement.  Irrespective of the fact that
the main contract is invalid, the arbitration
clause/agreement still remains valid and enforceable.
2008 cases
ABS-CBN Broadcasting Corporation v. World
Interactive Network Systems (WINS) Japan
Co., Ltd. (G.R. No. 169332)
11 February 2008
ABS-CBN Broadcasting Corporation (ABS-CBN),
a domestic corporation, entered into a licensing
agreement (Agreement) with World Interactive
Network Systems (WINS) Japan Co., Ltd. (WINS),
a foreign corporation licensed under the laws of
Japan.  Under the Agreement, ABS-CBN granted
WINS an exclusive license to distribute and
sublicense the television service known as “The
Filipino Channel” (TFC) in Japan.
Arbitration proceedings were commenced by
WINS after ABS-CBN threatened to terminate
the Agreement on the ground that WINS
allegedly inserted, without authority, several
episodes of “WINS Weekly”, a weekly 35-minute
community news program for Filipinos in Japan,
into the TFC programming. The arbitrator ruled
in favor of WINS, finding that ABS-CBN had in
fact given its approval for the airing of WINS
Weekly and that it threatened to terminate the
Agreement merely as a strategy to re-negotiate
for higher fees.
WINS filed a petition for the confirmation of the
award before the Philippine trial court.   According to the Supreme Court, a party
ABS-CBN, on the other hand, questioned the
arbitral award by filing with the Court of Appeals
a petition for review under Rule 43 of the Rules
of Court (a mode of appeal to question errors of
fact and/or law) or, in the alternative, a petition
for certiorari under Rule 65 (an original action
based on grave abuse of discretion amounting to
lack or excess of jurisdiction). 
The Court of Appeals dismissed ABS-CBN’s
petition for lack of jurisdiction, holding that it is
the trial court which has jurisdiction “over
questions relating to arbitration”.  The Court of
Appeals held that the only instance it can
exercise jurisdiction over an arbitral award is an
appeal from the trial court's decision confirming,
vacating or modifying the arbitral award.
On Appeal, the Supreme Court affirmed the
Court of Appeals’ ruling but for a different
reason.  On the procedural issue, the Supreme
Court ruled that ABS-CBN cannot simultaneously
avail of the alternative remedies under Rule 43
and Rule 65.  
On the issue of the scope of judicial review,
the Supreme Court disagreed with the Court
of Appeals’ position that an aggrieved party
cannot seek recourse against an arbitral
award directly with the Court of Appeals.
aggrieved by an arbitral award has three (3)
remedies, to wit: (a) a petition in the proper
trial court to issue an order to vacate the
award under Republic Act No. 876 (which
applies to domestic arbitration); (b) a
petition for review with the Court of Appeals
under Rule 43 of the Rules of Court on
questions of fact, of law, or mixed questions
of fact and law; and (c) a petition for
certiorari with the Court of Appeals under
Rule 65 of the Rules of Court if the arbitrator
acted without or in excess of his jurisdiction
or with grave abuse of discretion amounting
to lack or excess of jurisdiction. 
Section 24 of R.A. No. 876
The grounds to vacate under Section 24 are:
(a)   The award was procured by corruption,
fraud, or other undue means; or
(b)   That there was evident partiality or
corruption in the arbitrators or any of them; or   in
(c)   That the arbitrators were guilty of
misconduct in refusing to postpone the hearing
upon sufficient cause shown, or in refusing to
hear evidence pertinent and material to the
controversy; that one or more of the arbitrators
was disqualified to act as such under section nine
hereof, and willfully refrained from disclosing
such disqualifications or of any other
misbehavior by which the rights of any party
have been materially prejudiced; or
(d)   That the arbitrators exceeded their powers,
or so imperfectly executed them, that a mutual,
final and definite award upon the subject matter
submitted to them was not made. 
Rule 43
The Supreme Court noted that Rule 43 of the
Rules of Court expressly applies to awards,
judgments, final orders or resolutions of quasi-
judicial agencies, including voluntary arbitrators
authorized by law. 
Rule 65
As for the remedy under Rule 65, the Supreme
Court stressed that it will not hesitate to review
a voluntary arbitrator’s award where there is a
showing of grave abuse of authority or discretion
amounting to lack or excess of jurisdiction, and
there is no appeal, nor any plain, speedy remedy
the course of law.
It should be noted that the Philippine Alternative
Dispute Resolution Act of 2004 (“ADR Law”)
adopted and incorporated the provisions of the
UNCITRAL Model Law on International
Commercial Arbitration (“Model Law”), which
limits recourse against an international arbitral
award only to the grounds specified under
Section 34 of the Model Law (e.g., incapacity of
a party to the arbitration agreement or the
invalidity of the arbitration agreement under the
applicable law).  Neither the Model Law, nor the
 New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, to
which the Philippines acceded in 1967, recognize
the setting aside of international/foreign on the
broader grounds of errors of law and/or fact or
grave abuse of discretion.    
Notably, the ruling in ABS-CBN treated the
case as a “domestic” arbitration even though
one of the parties, i.e., WINS, was a Japanese
corporation and a substantial portion of the
obligation, i.e., the distribution and
sublicensing of the “The Filipino Channel”,
was performed in Japan.  Perhaps this may
be explained by the fact that the arbitral
award in this case was rendered prior to the
enactment of the ADR Law. It was only under
the ADR Law that a distinction was made
between domestic arbitration and
international arbitration.  Under the ADR
Law, international arbitration shall be
governed by the Model Law, while domestic
arbitration shall be governed by R.A. No,
876.  The ADR Law adopts the definition of
international arbitration under Article 1(3) of
the Model Law.  Domestic arbitration, on the
other hand, defines domestic arbitration as
arbitration that is not international.
Koreatec vs. Lerma January2008
Korea Technologies Co., Ltd., v. Hon. Alberto A. Lerma, et al.
(G.R. No. 143581, 7 January 2008), the Supreme Court held
that the ADR Law, being a procedural law, may be given
retroactive effective.  Hence, there appears to be a conflict
in this respect between ABS-CBN and Korea Technologies. 
For domestic arbitration proceedings, we have
particular agencies to arbitrate disputes arising
from contractual relations. In case a foreign
arbitral body is chosen by the parties, the
arbitration rules of our domestic arbitration
bodies would not be applied. As signatory to
the Arbitration Rules of the UNCITRAL Model
Law on International Commercial Arbitration[41]
of the United Nations Commission on
International Trade Law (UNCITRAL) in the New
York Convention on June 21, 1985, the Philippines
committed itself to be bound by the Model Law.
We have even incorporated the Model Law in
Republic Act No. (RA) 9285, otherwise known as
the Alternative Dispute Resolution Act of 2004
entitled An Act to Institutionalize the Use of an
Alternative Dispute Resolution System in the
Philippines and to Establish the Office for
Alternative Dispute Resolution, and for Other
Purposes, promulgated on April 2, 2004. Secs. 19
and 20 of Chapter 4 of the Model Law are the
pertinent provisions:
CHAPTER 4 - INTERNATIONAL COMMERCIAL
ARBITRATION
SEC. 19. Adoption of the Model Law
on International Commercial
Arbitration.––International
commercial arbitration shall be
governed by the Model Law on
International Commercial
Arbitration (the “Model Law”)
adopted by the United Nations
Commission on International Trade
Law on June 21, 1985 (United
Nations Document A/40/17) and
recommended for enactment by the
General Assembly in Resolution No.
40/72 approved on December 11,
1985, copy of which is hereto
attached as Appendix “A”.
SEC. 20. Interpretation of Model
Law.––In interpreting the Model
Law, regard shall be had to its
international origin and to the need
for uniformity in its interpretation
and resort may be made to the
travaux preparatories and the
report of the Secretary General of
the United Nations Commission on
International Trade Law dated
March 25, 1985 entitled,
“International Commercial
Arbitration: Analytical Commentary
on Draft Trade identified by
reference number A/CN. 9/264.”
While RA 9285 was passed only in 2004, it
nonetheless applies in the instant case since
it is a procedural law which has a retroactive
effect. Likewise, KOGIES filed its application
for arbitration before the KCAB on July 1,
1998 and it is still pending because no arbitral
award has yet been rendered. Thus, RA 9285
is applicable to the instant case. Well-settled
is the rule that procedural laws are construed
to be applicable to actions pending and
undetermined at the time of their passage,
and are deemed retroactive in that sense and
to that extent. As a general rule, the
retroactive application of procedural laws
does not violate any personal rights because
no vested right has yet attached nor arisen
from them.
There are certain principles to keep in mind concerning
arbitration proceedings:
1. Domestic arbitration or a foreign arbitral body
Domestic arbitration – following RA 876
Foreign arbitration/commercial arbitration – RA 9285,
the ADR Law
The parties submit to a panel of/an arbitrator/s.
There is a need for an arbitration clause.
Parties may agree later on to submit to arbitration if
there is no arbitration clause in the contract.
2. Container Contract - the principal contract where we
incorporate an arbitration clause.
Some Principles to familiarize in ADR:
~Principle of Separability – emphasizes that whenever there
is a container contract with an arbitration clause, from a legal
viewpoint, the parties entered into two different contracts.
~Principle of Judicial Restraint
~Competence- Competence
Principle of Separability
Arbitration clause is treated as an agreement
independent of the other terms of the
contract of which it forms part. A decision
that the contract is null and void shall not entail
ipso jure the invalidity of the arbitration clause.
(Uncitral Model Law, Sec. 16(1); Special ADR
Rules 2.2)
If there is a judgment by a court that the container
contract is unenforceable, that will not affect the
arbitration clause as it is a separate contract by itself.
This clause will still govern the relationship of parties
concerning the filing of cases in court or arbitration
board as the case may be.
If the arbitration clause is still valid, and one of the
parties filed a case in court, allegedly for the
enforcement of his right, then the court, confronted
with the arbitration clause/contract, will have to either
dismiss the complaint or suspend the proceedings and
compel the parties to go into arbitration.
Under the decisions of the 3 cases, the court also emphasize
that there could be a complaint to declare the unenforceability
of or to declare void the arbitration contract. It is an RTC that
has jurisdiction to do so. But even if there is a pendency of
such a case to declare unenforceability of or to declare void
the arbitration contract, it shall not serve to prevent the
parties from proceeding to arbitration. In fact, these cases
came out with a principle which the court called the Principle
of Anti-Suit Injunction.
The Principle of Anti-Suit Injunction means that the
court has no authority to issue a writ of injunction to
prevent an arbitration from proceeding or an arbitration
board to be constituted for the purpose of enforcing the
arbitration clause.
Competence-Competence.
What is the “Competence-Competence Principle”?
Power of arbitral tribunal to initially rule on the question
of its jurisdiction over a dispute including any objections
with respect to the existence or validity of the
arbitration agreement or any condition precedent to the
filing of a request of arbitration.
“The Special ADR Rules recognize the
principle of competence-competence, which
 means that the arbitral tribunal may initially
rule on its own jurisdiction, including any
objections with respect to the existence or
validity of the arbitration agreement or any
condition precedent to the filing of a request
for arbitration.” A.M. No. 07-11-08-SC
Special Rules on ADR
Restatement of the Rule:
Before the arbitral tribunal is constituted, the regular
courts have jurisdiction to determine the issue of
competence of a tribunal. The moment the arbitral
tribunal is constituted, the arbitral tribunal has
jurisdiction.
There arises a policy of judicial restraint, such that the
finding of the court on the jurisdiction of the arbitral
tribunal is at best prima facie.
Note:
There is a before Arbitration Tribunal, after Arbitration
Tribunal’s finding, and after-after.
Competence-competence – means that the arbitral body
has the authority to rule on the issue as to whether or
not it has jurisdiction over the case and the
enforceability and validity of its decisions. IT IS NOT
EXCLUSIVELY GIVEN TO A COURT. There could be a situation
that an RTC will declare that the arbitration clause is
unenforceable, but the arbitration board declared such clause
enforceable, the decision of the board will prevail.
The RTC may have the authority to entertain a petition to
declare void or unenforceable an arbitration clause. But the
decision of the RTC is merely prima facie. We will rely the
findings later on of the arbitral tribunal. This is the principle
of competence-competence. (Dean Jara)
Does the “prima facie finding” of the court mean that the
arbitral tribunal can still be formed?
Yes. If the court finds that the arbitration agreement is null
and void, inoperative or incapable of being performed, a party
may nevertheless commence arbitration and constitute the
arbitral tribunal.
So where does “prima facie finding” of the court come
in? How is it prima facie?
This means that the same issue may be passed upon by the
arbitral tribunal, which has the effect of superseding the
previous of the court. (This is the “AFTER” ruling.)
What about the “after-after” ruling?
The same issue may be passed upon in an action to vacate or
set aside the arbitral award (Rule 3.11) In this case, it is no
longer a prima facie determination of such issue or issues, but
shall be a FULL REVIEW of such issue or issues with due
regard, however, to the standard of review for arbitral
awards.
But how may arbitration commence if it the court has
made a prima facie finding that the arbitration
agreement is found null and void, inoperative or
incapable of being performed? Will the other party who
got the favorable ruling of the court participate /
cooperate?
Get an appointment of arbitrator - sole arbitrator, ad-hoc,
institutional.
Principle of Judicial Restraint – there should be least
intervention by courts of courts of justice insofar as
arbitration proceedings are concerned. So, if there is an
ongoing arbitration, or even if there is a pending case there is
a right to compel one of the parties to submit to arbitration,
the court should not interfere in the constitution of the
arbitral board. The reasoning behind is that when the parties
crafted the arbitration clause, there is an implicit
understanding between the parties is that an arbitral board,
and not a court of justice, should resolve their dispute. The
court deems this as a valid contract as it is the policy is to give
autonomy to the parties in choosing the manner to adjudicate
their disputes. They do not need to go to a court of justice.
They can go to an arbitration body, which is a faster and
practical means of settling their disputes.
Rule 2.4. Policy implementing competence-
competence principle.—The arbitral tribunal
shall be accorded the first opportunity or
competence to rule on the issue of whether
or not it has the competence or jurisdiction
to decide a dispute submitted to it for
decision, including any objection with
respect to the existence or validity of the
arbitration agreement. When a court is asked
to rule upon issue/s affecting the
competence or jurisdiction of an arbitral
tribunal in a dispute brought before it, either
before or after the arbitral tribunal is
constituted, the court must exercise judicial
restraint and defer to the competence or
jurisdiction of the arbitral tribunal by
allowing the arbitral tribunal the first
opportunity to rule upon such issues.
Where the court is asked to make a
determination of whether the arbitration
agreement is null and void, inoperative or
incapable of being performed, under this
policy of judicial restraint, the court must
make no more than a prima facie
determination of that issue.
Unless the court, pursuant to such prima
facie determination, concludes that the
arbitration agreement is null and void,
inoperative or incapable of being performed,
the court must suspend the action before it
and refer the parties to arbitration pursuant
to the arbitration agreement.
A.M. No. 07-11-08-SC Special Rules on ADR
Can an arbitral body or arbitrator grant provisional
remedies?
The circular on arbitration as well as jurisprudence states that
yes, arbitration board can be allowed to grant provisional
remedies or interim relief. Art. 17 J of UNCITRAL Model Law
on ICA also grants courts power and jurisdiction to issue
interim measures. Thus, a panel of arbitrators can issue a writ
of preliminary injunction, a writ of preliminary attachment,
they can appoint a receiver, and even can issue a protection
order so that the property in dispute may be preserved.
If a court of justice grants interim relief or provisional relief
that is in conflict with the relief granted by the arbitral body,
it is the relief granted by the arbitral body that shall prevail.
This emanates from the principle of Anti-Suit Injunction and
Principle of Judicial Restraint.
Principle of Anti-Suit Injunction
~The remedial device available in common law
systems to restrain a party from instituting or
continuing with proceedings in a foreign court.
~Refers to an extraordinary procedure where a
court issues an order to the effect that
proceedings in a second jurisdiction should not
precede. It is necessary to prevent an irreparable
miscarriage of justice.
The Complaint in the arbitration board must contain the
evidence (attachments) and the legal brief, an argument
supporting the party’s stand as to why his claim must be given
weight and granted. Defendant must file a response of similar
composition to such complaint (with legal brief). The legal
brief is similar to a memorandum (In ordinary civil procedure,
when there is an appeal, then we require filing of a brief in
the court.).In short, this is a short cut of the civil procedure.
There is no summons issued by the arbitration board, just a
notice for filing a response. Service thereof can be had by
private courier.
Because of the requirement of prior submission of evidence
together with the filing of pleadings and legal brief, it is easy
to appreciate how the arbitration board can easily grasp what
the issues are all about and they can right away render an
arbitral award. But it can require the submission of additional
evidence if needed. There is a provision in the ADR rules which
states that the technical rules of evidence will not govern
proceedings therein.
Let us say that the winning party wants the arbitral award to
be treated like a judgment of the court, he simply files with
the RTC to confirm arbitral award. He can do it at any time. If
arbitral award is confirmed by the RTC, the arbitral award
ceases to be such and is now a judgment that can be executed
under Rule 39. Violation thereof can cause winning party to
file motion for execution of judgment. In arbitration, an
arbitral award is final and executory, especially if
confirmed by the RTC.
The losing party can file a petition with the same RTC which
has authority to confirm the award for purpose of vacating,
correcting or modifying said award.
Supposing the RTC vacates award, setting it aside. Can
the RTC make its own decision concerning the merits of
the decision?
Not possible. Although a court of justice can vacate, modify
or correct an arbitral award, it has no authority to render its
own judgment on the merits. The domestic arbitration law and
the SC Circular said that if the court decides to vacate the
award, the court does not have the authority to change
the conclusions of law of the arbiter. The principle is a
court cannot render its own decision on a case already
submitted for arbitration. While it can vacate, modify or
correct the award, and it does so, the court should return
the decision to the arbitration panel for further study, or
the parties can opt to have a new arbitration panel
constituted. The court cannot impose its own judgment on
the merits of the case. The court can review the case, and
modify, vacate or correct the AWARD, but it cannot reverse
the findings of facts and conclusions of the arbiter.
Supposing the RTC affirms the arbitral award, does the
losing party still have a recourse?
The recourse of the losing party is to appeal in the CA via
Petition for Review under Rule 43. The justification for this
remedy is that in the enumeration of quasi-judicial bodies
whose decision can be reviewed by the CA, it includes the
review of an award made by arbitrators. From Rule 43, there
can be an appeal to the SC via a Petition for Review under Rule
45.
There is a judicial review for reviewing arbitration cases. But
the reviewing courts will have limited authority concerning the
manner by which the judgment could be held. The court
cannot change the factual findings of an arbitral body. In case
of a review brought to the RTC, CA or SC involving arbitral
award, there are few grounds mentioned. We cannot raise
Questions of law or fact. We have to follow the grounds
mentioned in RA 876.
Grounds for justifying a court of justice in issuing an
order to vacate the award:
1. arbitrator engages in corrupt practices
2. arbitrator resolved issues not brought before him
3. arbitrator exceeded his authority
4. failure to disclose his relationship to one of the parties
within 6 degrees.
Note :These are not the usual grounds of appeal in civil cases.
The courts should see to it that causes should be founded on
these grounds for granting the vacation of an award.
With respect to International Commercial Arbitration, which
can be held in RP or outside. A foreign arbitral award will be
treated like a domestic arbitral award, not a foreign
award. It is not considered a judgment rendered in a
court of justice. Even if confirmed by a foreign court, the
prevailing party must petition for the recognition of the award
in the RTC. It can be enforced in RP by filing in RTC for a
petition of recognition and enforcement of the arbitral award.
Its execution will fall under RTC jurisdiction, under Rule 39.
The last section of Rule 39 talks about the judgment rendered
by the foreign court.
 Rule 39, SEC. 48. Effect of foreign judgments or
final orders.—The effect of a judgment or final
order of a tribunal of a foreign country, having
jurisdiction to render the judgment or final
order, is as follows:
(a) In case of a judgment or final order upon a
specific thing, the judgment or final order is
conclusive upon the title of the thing; and
(b) In case of a judgment or final order against a
person, the judgment or final order is
presumptive evidence of a right as between the
parties and their successors in interest by a
subsequent title.
In either case, the judgment or final order may
be repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or
clear mistake of law or fact.
The remedy of a winning party in a case decided by a foreign
court, for the enforcement thereof in RP, is to file a petition
for the enforcement of the foreign judgment. There is no
need to file a petition for recognition of a foreign judgment.
Our laws do not recognize a foreign arbitral award as a
judgment of a foreign court, it is just an arbitral award. Thus,
the prevailing party in an arbitral award cannot make use of
Section 48 under Rule 39. He must avail of another remedy
provided by the SC Circular, which is a petition for recognition
and enforcement of foreign arbitral award in the RTC.
The court can refuse to resolve a petition for recognition and
enforcement of a foreign arbitral award; unlike in the case of
a foreign judgment rendered by a foreign court, where the
decision is conclusive upon our courts, subject to the last
paragraph of Sec. 48, Rule 39. But we do not apply Section 48,
Rule 39 to a foreign arbitral award, as it is not a judgment
rendered by a foreign court.
Supreme Court has inserted in the rules remedies made
available to the parties in ordinary cases. If a local court or an
arbitral body makes a finding that the arbitration clause is
valid and binding, it is inappealable. But if the arbitral body
makes a finding that the clause is invalid, the decision is
appealable to a trial court. If there is a finding that the
arbitrator is qualified, the motion for reconsideration, appeal,
or a petition under Rule 65 against such finding are all
prohibited. This is to emphasize the policy of judicial restraint
insofar as arbitration proceedings are concerned.
If there is an appeal in the higher court for a petition for
review of an arbitral award, the ADR law also provides that the
appellant should file a bond equal to the award given by
the panel of arbitrators; whereas in ordinary appeal, there
is no need to file an appeal bond. In ordinary court procedure,
there is no need to file an appeal bond as it has been done
away by BP 129 (requiring only the filing of the mode of
appeal and docket fees).
Read the SC Circular and the cases.
Intervention
4 kinds of intervention expressly recognized by the court:
1. Intervention upon court’s discretion
Rule 19 – intervention upon court’s discretion; a stranger to a
case voluntarily introduces himself as a party, but must seek
court permission to do so via Motion for Intervention.
Motion for intervention should show:
1. intervenor had direct interest, or
2. he has a grievance against both parties in the pending case,
or
3. he wants to side with one of the parties, or
4. is situated in a very unfortunate position wherein the
judgment of the court could adversely affect his properties.
In this situation, intervention is not a matter of right as he is
required to file a motion subject to the court’s decision. In the
resolution of the motion, the court has the discretion to grant
or deny the motion. If the motion is denied, the intervenor
can file a separate case against any one, or both, parties. If
his case is already filed, he can seek to have the cases
consolidated, in the instance that consolidation is proper. If
there is a consolidation, then the intervenor’s desire is also
satisfied, as he can no participate in the proceedings.
If motion is granted, intervenor is required to file a pleading
(either a complaint- or an answer-in intervention).
Complaint-in-intervention – filed if the intervenor either
wants to side with the complainant or is filing a complaint
against both complainant and defendant in the main
complaint.
Answer-in-intervention – filed if the intervenor wants to
side with the defendant.
The filing of these pleadings do not preclude the intervenor
from availing of the other pleadings allowed in a civil case
(counter-claim, cross-claim, third-party complaint, etc.).
Do we recognize a motion to intervene as a matter of
right on the part of the intervenor, wherein the
intervenor can insist or compel the court to allow his
intervention?
Yes, this is found in a class suit, where any member of the
class has the right to intervene, and can ask the court for the
authority to intervene. The court has no option but to grant
the intervention.
2. Court-mandated intervention – court itself directly
induces the party to intervene in an existing or pending
litigation. (Rule 9, in marriage-related cases)
In marriage related cases in Rule 9, if the defendant in a
marriage-related case does not answer, the court has no
authority to declare a non-answering defendant in default,
but can direct the prosecutor to intervene in order to
determine that there is no collusion between parties.
3. Forced intervention – a person becomes an intervenor by
operation of law, Rule 57 and Rule 39.
Rule 39 – when the court issues writ of execution and the
properties of the losing party have been levied upon, and
sheriff also issues the ancillary writ of garnishment. When the
properties of a judgment debtor in the possession of a 3rd
person are subjected to a writ of garnishment, that 3rd person
becomes a forced intervenor in the proceedings. That person
will have to obey the orders of the court issued in relation to
the execution, whether the 3rd person likes it or not, he will
be forced to act as an intervenor to the case.
Rule 57 – Preliminary attachment – forced intervention; if
there is a writ of preliminary attachment issued by the court,
a supplemental writ of garnishment is issued, and the writs
were enforced by the sheriff upon a 3rd person, that 3rd
person becomes a forced intervenor in the proceedings.
4. Court-encouraged intervention
Writ of Kalikasan cases – it is a court-encouraged
intervention for NGOs and other parties to intervene
whenever there is a petition filed under Kalikasan laws..
The court cannot compel the intervention of these
bodies, only to encourage them.
There are some cases whose positions it appears to be in
conflict with one another in reference to the intervention
under Rule 19.
Before the court grants a motion for intervention, the
principal case was dismissed with the motion unresolved.
What happens to the motion for intervention?
It will render the motion academic. The motion presupposes
the presence of a principal action. Absent thereof, there can
be no intervention allowed. Intervention is always ancillary
to a principal action.
Metrobank vs. CA (Dismissal of the main action will not
render intervention moot and academic)
A motion for intervention was filed while the case was
pending. The court granted the intervention. After receipt of
the order allowing him to intervene, the party filed a
complaint-in-intervention against all the parties in the case.
Intervenor did not realize that the parties of the case were
settling. The parties did arrive at an amicable settlement. The
parties sought for the dismissal of the case, which was
allowed. The intervenor objected to idea of having his petition
dismissed. The principal parties told the court that it is
axiomatic in intervention that once the principal action has
been terminated, the subsidiary action is dismissed also.
SC Held that the intervention was already allowed. The
principle that the contention of the parties was applicable only
in the instance the motion to intervene was not yet granted.
In this case, the court has already granted the motion to
intervene. The interest of intervenor was not common with
the interest against the other parties, having filed a
complaint-in-intervention against both parties. Thus, the
intervention should be allowed to stand, the standing of
which, the intervention is considered a separate case against
the parties. Here, the intervention survived.
The MetroBank case involves a situation where in the
intervention will survive the dismissal of the main complaint.
But, for the intervention to survive, the pleading to be filed
must be a complaint-in-intervention against both parties to
the case. This will not be applicable if the intervention was in
the form of a complaint-in-intervention where the intervenor
sides with the plaintiff or if the intervention was via an
answer in intervention.
Although the rule provides a time frame for an intervenor to
be allowed to intervene, the SC has allowed intervention to
take place, even if there is already a pending appeal before
the CA. The Rule is very clear that intervention should be
allowed before judgment is rendered by the trial court. After
judgment is rendered by the trial court, intervention should
be no longer allowed. But, the SC recognized the propriety of
an intervention even if the case was already pending appeal in
the CA or the SC.
In the first instance where the court will allow an intervention,
even on appeal, is when the intervenor is an indispensible
party. If an intervenor attempts to intervene if the case is
already on appeal, that will save the trial court, CA and SC
from another procedural problem. We learned that if the trial
court renders a decision in a case where an indispensable
party is not impleaded, that decision will never be final and
executory. So, if on appeal, if the indispensable party
intervenes, then he should be allowed to do so, because if he
is allowed, that will cure all the procedural effects that will be
present in this particular case. That will solve the problem of
whether or not there could be a final determination of the
case or whether or not the decision can be finally be executed
under the provisions of Rule 39.
Another situation that the SC allowed an intervention to
happen even if the case is already is on appeal is when the
Republic of the Philippines intervenes in the case. If the
Republic of the Philippines, via the Solicitor General,
intervenes in a case that is already on appeal, the SC said that
the intervention of the Solicitor General must be of national
importance, since the Solicitor General intervenes only when
the case is of paramount interest to the Republic of the
Philippines.
MODES OF DISCOVERY
The modes of appeal that we have in a civil procedure are also
available in a criminal case.
The SC in the WEBB CASE came out with the principle that the
Modes of Discovery available in civil cases are also available in
criminal cases. The only difference is that the use of the
mode of discovery should not violate or derogate the
constitutional right of the accused.
For instance, in a civil case, there is nothing wrong if the
plaintiff takes the deposition of the defendant, or the other
way around. But in a criminal case, there is something wrong
if the prosecutor takes the deposition of the accused. The
prosecutor cannot take the deposition of the accused in a
criminal case as this is a violation of the constitutional right of
the accused. But prosecutor can takes the deposition of a
witness whom the accused wants to present in court, so
long as the witness is not the spouse of the accused (due to
marital privilege; the rule on evidence precludes a spouse
being a witness against the other spouse).
But in a civil case, there is nothing irregular about either the
plaintiff or defendant being subject to deposition. This is even
encouraged by the rules found in civil procedure.
Do the rules compel litigants to avail modes of discovery?
Refer to Rule 18 first on Pre-Trial –
In Rule 18, the plaintiff is asked to indicate if he desires to
make use modes of discovery or use ADR. They are required
to manifest that to the court.
Let us say that Plaintiff asked for leave to use modes of
discovery, but he failed to do so. Can the court compel
the plaintiff to avail it?
No, the court cannot compel, merely encourage the use of
modes of discovery.
Indirectly, the Rules to have instances where the law
indirectly compels litigant to use modes of discovery.
Otherwise he will suffer some sanctions given in the Rules.
Examples of these Rules would be those under Rule 25 and
Rule 26.
Admission or interrogatories to parties. – sanction under Rule
25 and 26
Whether admissions or interrogatories to parties, there are
practically identical sanctions imposed by the Rules.
In interrogatories to parties, the last section of Rule 25
(Section 6) provides that while a plaintiff can compel the
defendant to testify during the trial of the case as a witness
for the plaintiff, and also, the defendant can compel the
defendant to testify as a witness during the trial, this cannot
be done unless the plaintiff or defendant has previously
served upon the party concerned an interrogatory. If the
plaintiff serves a subpoena ad testificandum to the
defendant, requiring the defendant to appear and testify in
court on behalf of the plaintiff, the defendant can ask for
that subpoena to be quashed for failure of the plaintiff to
comply with requirements contained in Rule 25 Section 6. For
the plaintiff can compel the defendant to testify, the plaintiff
must have served a written interrogatories upon the
defendant. If plaintiff cannot show that he was able to serve
such written interrogatories, the defendant can move for the
quashal of the subpoena, and defendant cannot be compelled
to be a witness in the case.
Rule 25 SEC. 6. Effect of failure to serve
written interrogatories.— Unless thereafter
allowed by the court for good cause shown and
to prevent a failure of justice, a party not
served with written interrogatories may not
be compelled by the adverse party to give
testimony in open court, or to give a
deposition pending appeal.
Admission – last section of Rule 26 –
The same rule on Rule 25 Section 6 is practically the same for
admissions. In fact, these provisions of Sec. 5 Rule 26 and Sec.
6 Rule 25 pertain to competency of certain evidence. If an
evidence is relevant, the general rule is that the evidence
should be admissible, unless it is not competent under the
provisions of our law or certain rules. In Sec. 5 Rule 26 and
Sec. 6 Rule 25, certain relevant evidence may be rendered
INADMISSIBLE or INCOMPETENT for failure of the party to
follow the requirements given in these modes of discovery.
Certain matters may not be proven by a party unless that
party complied with the requirements given under Sec. 5 Rule
26 or Sec. 6 Rule 25. So the sanction that the Rules imposes so
the party will be compelled to avail of the modes of discovery
is that the evidence that the evidence sought to be presented
by the proponent could become inadmissible, the otherwise
relevant evidence will become incompetent by reason of the
provisions of these Rules. That will compel the party to avail
of the modes of discovery.
Rule 26 SEC. 5. Effect of failure to file and serve
request for admission.—Unless otherwise
allowed by the court for good cause shown and
to prevent a failure of justice, a party who fails
to file and serve a request for admission on
the adverse party of material and relevant
facts at issue which are, or ought to be,
within the personal knowledge of the latter,
shall not be permitted to present evidence on
such facts.
Other than these, there is nothing in our Rules that requires a
party to avail of the modes of discovery. Availment of a mode
of discovery, as a general rule, is purely voluntary on the part
of an interested party.
Another basic principle in discovery measures is that after an
answer is filed by the defendant, availment of the modes of
discovery does not require permission of the court. The
plaintiff or defendant is given the prerogative to avail of the
modes of discoveries like taking of depositions or
interrogatories to parties or admissions to parties. The other
modes of discovery will ALWAYS require leave of court. Thus
production and inspection of documents or things in court will
always require leave of court, as does physical and mental
examination of a person. But in the case of depositions
pending trial, interrogatories or admissions, we do not need
leave of court so long as the defendant has already filed an
answer.
DEPOSITION BEFORE AN ACTION OR ON APPEAL.
Deposition before action – called in the past as
perpetration of testimonies. Strictly, it is not a mode of
discovery, as modes of discovery assumes that there is a
pending case in court. A deposition before action does not
require an action to be pending, and is thus treated as an
independent action by itself. This is availed of by filing a
Petition for Perpetration of Testimony, as there is no action
filed yet.
Since this is an independent proceeding, with what court
should we file the petition?
Petition to Perpetuate Testimony – RTC. If we follow BP 129,
that petition would be cognizable under the RTC since it is an
independent action incapable of pecuniary estimation.
Regardless of the contemplated action to which we are going
to file, a Petition to Perpetuate Testimony is always
cognizable by an RTC.
If there is already a complaint that is filed and an answer has
been filed by the defendant, the court will allow the use of
the modes of discovery that will not require leave of court,
such as the taking of a deposition. The court has allowed the
use of these modes of discovery as a fishing expedition.
Practically there is no limitation as to what matters can be
inquired into insofar as availment of discovery measures are
concerned. It is not required that the matters sought be
discovered are relevant right away to the issues presented in
the case.
When the law says that the statutes of discovery allow a
fishing expedition, it does not mean to say that the statutes
of discovery are intended only to gather evidence on behalf of
the interested party. He may want to obtain information only
for tactical advantage during the course of the case. He does
not have to present evidence in court information that is
gathered by him via these modes of discovery.
But, even if the party is allowed to gather information
through the modes of discovery what the law limits is the use
of evidence gathered. So, if the plaintiff was able to gather
information, let us say, from a witness who, according to the
pre-trial brief of the defendant, would be principal witness for
the defendant, it does not mean that the deposition given by
such witness will readily be admissible in court in view of the
testimony of this defendant’s witness. The fact that a party
has taken the deposition of a potential witness does not mean
to say that this potential witness will now be excused from
going to court to give his testimony. The giving of deposition
is different from the giving testimony in open court. A party
may give his deposition, but it does not mean that he is
excused from testifying in court. In fact, the Rules require
that if the party has already given his deposition, he is still
required to testify in court. His deposition will not take the
place of his the testimony in court. This is because the taking
of his deposition is only a discovery measure. The deponent
does not appear before the trial court to testify. He gives his
deposition not before a trial judge, but before another person
who is simply authorized to administer oaths.
For instance, if the case is pending here in Manila, and
there is a potential witness whose deposition is required
by the plaintiff, and this witness is also a resident of
Manila, can the plaintiff require this potential witness to
give his deposition?
Yes.
After the potential witness has given his deposition, and
later on, this witness receives a subpoena requiring him
to give testimony in open court, can the potential
witness file a motion to quash subpoena as he had given a
deposition of his testimony?
No, as the giving of a deposition cannot take the place of
giving testimony in open court. The deponent can always be
compelled to give his testimony in open court. Though his
testimony may be a repetition of his deposition, it still does
not matter. He still has to give his testimony in open court.

If the witness has given testimony in open court, what is the
use of the deposition he had previously given?
Deposition previously given can be used to impeach the
witness or corroborate the witness’ statements in the
testimony. This is the principle of evidence called Laying The
Predicate.
Laying the Predicate: Refer to statements, oral or
documentary, made by the witness sought to be impeached
on occasions other than the trial in which he is testifying
Q: What are the elements of laying the predicate?
A:
1. The alleged statements must be related to the
witness including the circumstances of the times and
places and the persons present. If the statements are in
writing they must be shown to him;
2. He must be asked whether he made such statements
and also to explain them if he admits making those
statements (Riano, p. 327).
Q: When is the rule on laying the predicate
inapplicable?
A: It is inapplicable if the prior inconsistent statement
appears in a deposition of the adverse party, and not a
mere witness, that adverse party who testifies may be
impeached without laying the predicate as such prior
statements are in the nature of admissions of said
adverse party. (Regalado, Vol. II, p. 852, 2008 ed.)
Q: What is the purpose of laying the predicate?
A: The purpose of which is to allow the witness to
admit or deny the prior statement and afford him an
opportunity to explain the same. Non-compliance with
the foundational elements for this mode of
impeachment will be a ground for an objection based on
“improper impeachment.” Over a timely objection,
extrinsic evidence of a prior inconsistent statement
without the required foundation is not admissible. (ibid)
Is it possible the deposition can be the testimony
of the witness?
Yes, if the witness is more than 100 km from the court,
and the witness invokes his viatory right, the
deposition is allowed to take the deposition and the
court can consider the deposition the testimony of the
witness.
If a deposition has already been given, is it possible that
his deposition will be treated as his testimony in open
court?
That is also possible. If the deponent, if called upon by the
court to testify, will invoke his Viatory Right.
Where the witness resides more than one hundred (100)
kilometers from his residence to the place where he is to
testify by the ordinary course of travel, the witness may
invoke that he be not allowed to testify (Viatory Right). The
witness can ask the court that he be excused from giving his
testimony in open court. Even if the court issues a subpoena,
the witness may ignore such subpoena. He cannot be cited in
contempt for disobedience thereof. The remedy of the court
is to allow the taking of the deposition, and the court can then
consider the deposition taken as his testimony. In other
words, the fact that a deposition has already been taken from
a person does not mean that the said person will be excused
thereafter from going to court in order to be a witness. That
is possible only in exceptional cases mentioned in Rules, one
of them being when the witness invokes his Viatory right. Or
even if there is no viatory right, if the witness/deponent is
physically incapable of going to court in order to testify, the
court can consider the deposition previously given as his
testimony in court.
TRIAL
Can a trial court decide a case properly and validly if the
court does not conduct a pre-trial or a trial for that
matter?
Yes. Although pre-trial is mandatory and though trial must be
had due to triable issues, the court can just skip these stages
and render judgment. Ex. Judgment by default, judgment on
the pleadings.
Judgment by default – it is a judgment on the merits, no
trial and pre-trial is conducted. Under Rule 9, if the court
declares defendant in default since he did not file an answer,
one of the options is to immediately render a judgment
without requiring plaintiff to present his evidence ex parte.
Supposedly the defendant filed his answer, can we still do
away with the trial?
Yes, we follow the special kinds of judgments whenever an
answer is filed as found under the rules.
Special judgments where an answer is filed by defendant
There can be a judgment on the pleadings if the answer
does not raise any issue at all, or even admits the
allegations in the pleadings. There need to be no pre-trial and
trial. The plaintiff can move right away for a judgment on the
pleadings.
Judgment based upon a compromise. Parties entered into a
compromise agreement during pre-trial, the court concurs the
validity of the compromise agreement, the court will render a
judgment based upon compromise.
If you will notice that in the deliberation of the Rules on
certain special kinds of judgments, like judgment on the
pleadings, demurrer to evidence or summary judgment, the
core element of these special kinds of judgments is that if
there is a trial conducted by the court, it is not a full blown
trial.
Summary Judgment– not a full-blown trial
Demurrer to Evidence– not a full-blown trial, only ½ of the
trial contemplated under Rule 30. Defendant does not
present evidence.
But in instances where there are genuine triable issues, and
the parties cannot agreed to the facts that should be given to
the court so it can decide the case properly, the court will
have to conduct a trial. The parties are then given the
opportunity to make use of evidentiary rules, which is not
required before trial. There is no offer of evidence during
pre-trial. At most, if there is evidence presented during pre-
trial, it is only for marking them as exhibits. In a pre-trial
brief, the parties just identify the documental evidence, the
real evidence and testimonial evidence in the form of
affidavits. What the parties doe in pre-trial is to mark these
as exhibits.
The trial of the case shall govern the pre-trial order. Only the
issues specified in the pre-trial order will be the order of trial.
But this Rule is not strict as the Rules allow amendment to
conform to evidence. If we follow strictly the Rules and we do
not allow amendment to conform to evidence, then the only
issues specified in the pre-trial order will be tried.
If there are genuine triable issues, can the court do away
with the trial?
Yes. The parties can help the court avoid a trial if the parties
stipulates on facts that are in dispute. If the parties submit to
the court complete stipulation of facts, that the court need
only review the law applicable, then the court can render a
decision on the case. The court need not conduct a trial. Trial
is only a trial of factual issues. It cannot be a trial of legal
issues. This is because the court is presumed to know the law
applicable to a given state of facts. The trial contemplated
under Rule 30 is a trial of facts in dispute. But if the parties
decide that these facts are no longer disputed, and they
manifested to the court that they agree fully to the existence
of these facts, then the trial may be avoided. The next stage
will just be the rendition of judgment.
In civil procedure, although there is a section in Rule 30 on
written stipulation on facts, the court liberally allows verbal
stipulations. Example, during the pre-trial conference,
everything stipulated upon may be done verbally.But since the
pre-trial conference is part of the court proceedings,
everything is recorded by the court stenographer. The
stenographer will transcribe the records and what the court
will readily decide that there has been a stipulation of facts
between the parties.
The order of trial in Rule 30 is the general rule. The order of
trial follows the sequence of argumentation of pleadings. The
affirmative side, the plaintiff, will first present his side, and
then the negative side, the defendant, will set forth his
defenses. Once the defendant is done presenting his
evidence, then the court may allow parties to submit rebuttal
evidence or even sur-rebuttal evidence. But the court does
not allow the presentation of rebuttal evidence or sur-rebuttal
evidence, the trial will end after the defendant has rest his
case.
Can the court terminate the case after the defendant
rests?
Rule 30 gives an option to the judge, to require the parties to
submit their respective memoranda to help the court in
arriving at a decision.
Does failure to submit memoranda when required to do
so result in dismissal of the case?
Yes, under Rule 17, for failure to obey lawful court orders.
 evidence. However, in these instances, it is still the judge who
will have to write and sign the decision.
The order of trial can be changed. If the court requires
defendant to present evidence ahead, then the reversal of the There are 2 rules concerned with how a court in a civil case will
order is had. If the defendant had set up the affirmative conduct a trial.
defense of, for example payment, then the order is reversed. 1. Rule on consolidation and severance of cases
Why is this only issue to be decided by the court? Should not 2. Trial by commissioner
the court first decide on whether or not the loan has really
been extended by the plaintiff to the defendant? In our Rules,
Distinguish consolidation from severance.
if the defendant sets up only an affirmative defense, that
A:
constitutes a hypothetical admission to the allegations
contained in the complaint. That is found in Rule 6. So if the Consolidation Severance
defendant hypothetically, for purposes of trial, that the Involves several actions Contemplates a single action
defendant incurred a loan, then there really is no need for the having a common question of having a number of claims,
plaintiff to prove the existence of the loan. It is now the duty law or fact which may be counterclaims, cross-claims,
of the defendant to show that the loan had been paid, so the jointly tried (Sec.1, Rule 31). third-party complaints, or
order of trial is changed. Thus, the defendant is allowed to issues which may be
present his evidence first. Thereafter, the plaintiff does not separately tried.
find it necessary to file rebuttal evidence, the court will
consider the case as submitted for decision. Consolidation:
1. several cases
2. similar issues, common question of fact
Generally, when a trial is conducted by the court, it is the 3. pending in the same court
judge appointed in that sala that should sit in the proceedings.
But, there are certain instances under Rule 30 when the judge
may excuse himself from presiding the case. They are all
What are the requisites for consolidation?
mentioned in the rules.
A:
1. Actions involving a common question of law or fact; and
One is when the parties so agree, when the parties appoints a
commissioner for presentation of evidence. Another is, when 2. There must be at least 2 actions pending before the same
the branch clerk of court, upon delegation of the judge, may court (Sec.1, Rule 31).
sit when the parties agree to an ex parte presentation of
Q: What are the ways of consolidating cases? 2. If filed with the different branches of the same RTC
A: and one of such cases has not been partially tried.
Recasting the Consolidation Test-Case (Raymundo v. Felipe, G.R. No. L-30887, Dec. 24, 1971)
Cases Proper Method
Reshaping of the It is a joint trial By hearing only Q: When may civil actions be suspended?
cases by amending with joint the principal case A:
the pleading, decision, the cases and suspending 1. If willingness to discuss a possible compromise is expressed
dismissing some retaining their the hearing on the by one or both parties; or
cases and original docket other cases until 2. If it appears that one of the parties, before the
retaining only one numbers. judgment has commencement of the action or proceeding, offered to
case. There must been rendered in discuss a possible compromise but the other party refused the
be joinder of the principal case. offer (Sec. 8, Rule 30; Art. 2030, NCC).
causes of action The cases retain
and of parties. their original
Let us say there are 3 cases involving different parties, but all
docket numbers
involve a common question of fact or law, pending in the same
(Riano, Civil
court, the court can issue an order of consolidation of the
Procedure, p. 96,
cases.
2009 ed.).

Consolidation of cases in different salas in a multi-sala court

Q: What is the rule on consolidation of cases?
A:
GR: Consolidation is discretionary upon the court to avoid
multiplicity of suits, guard against oppression or abuse,
prevent delay, clear congested dockets, and simplify the work
of the trial court and save unnecessary costs and expenses.
XPNs: Consolidation becomes a matter of duty when:
1. If two or more cases are pending before the same
judge; or
such as the Regional Trial Court of Manila: The internal rules
of RTCs will be followed. The judge in one branch cannot issue
an order directing the other judges to agree to the
consolidation of cases, as there is a need to coordinate with
each branch first. One judge cannot simply issue an order to
be obeyed by another judge of the same level. The internal
rules of the RTC, where there are cases to be consolidated but
which are assigned to different branches, is that if there is a
consolidation consented by the judges, it will be tried by the
sala with the lowest docket number.
If one case is in Manila RTC, the other in Bulacan RTC, both
cases being those that can be validly consolidated, then the
Supreme Court may order consolidation.
The opposite of consolidation is severance of several issues
contained in one complaint. A trial court is also given the
authority to tell the parties that the trial to be conducted only
for the purpose for hearing either a 3rd party complaint, a
counterclaim or a crossclaim, depending upon the discretion of
the court
Trial by Commissioners
The language used in the Rule is not mandatory. This is upon
discretion of the court.
Exceptional circumstances where there is mandatory
appointment of commissioner:
1. expropriation proceedings, for determining just
compensation
2. partition cases, where there is a need to determine how the
property will be divided between co-owners
3. Rule 39, Sec. 36 and 37 When the judgment was not
executed fully or no execution was had
SEC. 36. Examination of judgment obligor when
judgment unsatisfied
SEC. 37. Examination of obligor of judgment obligor. (in
case partial satisfaction was had)
4. Settlement of estates of deceased persons, in statute of
non-claims, money claims will have to be submitted to the
settlement court within the statute of non-claims, and will
have to be responded to by the executor or administrator. If
administrator of the estate can contest the validity of these
claims, these claims will become contested claims, then the
court may appoint a commissioner to determine these
contested claims.
Q: What is the statute of non-claims?
A: It is a period fixed by the courts for the filing of claims
against the estate for examination and allowance. (Herrera,
Vol. III-A, p. 132, 2005 ed.)
Q: When should claims be filed?
A:
GR: Within the time fixed in the notice which shall not be
more than 12 months nor less than 6 months after the date of
the first publication. Such period once fixed by the court is
mandatory. Otherwise, the claims are barred forever.
Note: Where an executor or administrator commences an
action, or prosecutes an action already commenced by the
deceased in his lifetime, the debtor may set forth by answer
the claims he has against the decedent, and mutual claims
may be set off against each other in such action. (Sec. 5, Rule
86)
XPN: Belated claims.
Q: What is the rule on Belated Claims?
A: Belated claims may be filed even beyond the period fixed
by the court:
1. On application of a creditor who has failed to file his claim
within the time previously limited, at any time before an
order of distribution is entered, the court may, for just
causes, allow such claim to be filed not exceeding 1 month
from the order allowing belated claims; or (Sec. 2 , Rule
86)
2. Where the estate filed a claim against the creditor or
claimant who failed to present his claim against the
estate within the period fixed by the probate court for
the settlement of such claims, the creditor will be allowed
to set up the same as a counterclaim to the action filed
by the estate against him.
Note: Statute of non-claims supersedes the Statute of
Limitations insofar as the debts of deceased persons are
concerned because if a creditor fails to file his claim
within the time fixed by the court in the notice, then the
claim is barred forever. However, both statute of non-
claims and statute of limitations must concur in order for
a creditor to collect.
JUDGMENTS
Rule 36, Sec. 1 – Formal Requisites of a valid judgment or final
order:
1. written personally and directly by the judge
2. signed by the judge
3. given to the branch clerk of court
4. includes basis from factual findings and conclusions of law
Shimizu vs. Magsalin
A final order of dismissal under Rule 17, a dismissal with
prejudice, is void if there is no explanation how and why
the case was dismissed by failure to prosecute.
Q: What are the requisites of a valid judgment?
A:
1. Authority of the court to hear and determine the case.
2. Jurisdiction – over the parties and the subject matter
3. The parties must have been given an opportunity to
adduce evidence.
4. The evidence must have been considered by the tribunal
in deciding the case.
5. The judgment must be in writing, personally and directly
prepared by the judge.
6. The judgment must state clearly the facts and the law
on which it is based, signed by the judge and filed with the
clerk of court.
NOTE: Only for decisions and final orders on merits and does
not apply to those resolved through incidental matters.
Final order – there should a adjudication upon the merits.
A case is pending in RTC Bulacan under Judge A. He
presided during the presentation of evidence by both
parties. After presentation of evidence, Judge A retires.
Who will decide the case?
The successor judge takes over and decides the case.
If the former judge makes the decision and turned it over to
the clerk of court, who then promulgates it and sends the said
decision by mail, that judgment is void.
What if Judge A is transferred from RTC Bulacan to RTC
Manila, can he pen the decision and send it to his former
sala?
Under the old judiciary act, that is a valid judgment. Under
the old judiciary act, if the judge who fully tried the case is
subsequently transferred, he retains authority to try the case
and render a valid judgment thereon.
What if Judge A is promoted to become a justice of the
CA, can he validly pen the judgment?
No. He can no longer decide the case. It is only when the trial
judge who has heard the case is given a new assignment to a
coordinate court shall the Judiciary Act of 1948 will give him
authority to render a valid decision.
Entry of judgment takes place by operation of law. Rule
36.
This is a very important rule insofar as judgments are
concerned. Now, we have a new concept of entry of
judgment. Under Rule 36, Entry of Judgment takes place by
operation of law. Even if there is no physical or actual entry of
judgment, under Rule 36, the judgment is deemed entered
upon the expiration of the period to appeal if no appeal is
perfected. Hence, if no appeal is perfected, right after the
expiration of the 15/30-day period, that judgment is
AUTOMATICALLY entered, and becomes final and executory.
Even if the clerk of court enters that in the records a year
later, it is not the physical entry on the record by the clerk of
court that will reckon the entry of judgment.
Why do we consider entry of judgment as a very
important procedural principle?
The term entry of judgment is a role if we follow Rule 39,
Execution of Judgments. In Rule 39, if a judgment has become
final and executory, then the court has the ministerial duty to
grant a motion for execution and to order execution of the
judgment. In Rule 39 also, there is a period fixed for that
judgment to be executed. The first five years from entry is
the period to execute the judgment via a motion, and the
second 5-year period is for the revival of the judgment. We
are more interested in the first 5-year period within which to
execute the judgment through a motion.
If we reckon period under Rule 39, insofar as the first 5-year
period is concerned, it is 5 years from entry of judgment. This
is why the principle of entry of judgment is very important in
implementing the succeeding procedural principles relating to
execution of judgment, and also in determining if a particular
remedy has been availed of on time.
For instance, under Rule 38, Relief from Judgment. If you
recall, relief of judgments has 2 periods to be taken into
account, 60 days from notice and 6 months from ENTRY of
judgment. The period speaks of availment of certain remedies
they are all reckoned from entry of judgment.
So, do not forget that entry of judgment under our present
rules takes place by operation of law, upon the expiration of
the period to appeal, if no appeal is perfected. The judgment
is automatically entered under the provisions of Rule 36.

Q: What are those which are not considered as decisions?
A:
1. Resolutions of Supreme Court denying the petitions to
review decisions of Court of Appeals.
2. Minute Resolutions – if issued by SC denying or dismissing
a petition or a motion for reconsideration for lack of merit, it
is understood that the challenged decision or order is deemed
sustained.
3. Interlocutory Orders– those that determine incidental
matters that do not touch on the merits of the case or put an
end to the proceedings. E.g. Order denying a motion to
dismiss, granting an extension of time or authorizing an
amendment.
Note: Appeal is not proper to question an interlocutory order.
The proper remedy to question an interlocutory order is a
petition for certiorari under Rule 65.
Q: What is a judgment without trial?
A: The theory of summary judgment is that although an
answer may on its face appear to tender issues—requiring trial
—yet if it is demonstrated by affidavits, depositions, or
admissions that those issues are not genuine, but sham
or fictitious, the Court is justified in dispensing with the
trial and rendering summary judgment for plaintiff. The
court is expected to act chiefly on the basis of the
affidavits, depositions, admissions submitted by the
movants, and those of the other party in opposition
thereto. The hearing contemplated (with 10-day notice) is for
the purpose of determining whether the issues are genuine or
not, not to receive evidence on the issues set up in the
pleadings. A hearing is not thus de rigueur. The matter
may be resolved, and usually is, on the basis of
affidavits, depositions, admissions. Under the
circumstances of the case, a hearing would serve no purpose,
and clearly unnecessary. The summary judgment here was
justified, considering the absence of opposing affidavits to
contradict the affidavits (Galicia vs. Polo, L-49668, Nov. 14,
1989; Carcon Devt. Corp. vs. CA, GR 88218, Dec. 17, 1989).
The other sections of Rule 36 give us the certain
classifications of judgments; summary judgment and several
judgment.
Separate judgment(Sec. 5, Rule 36) – It is one rendered
disposing of a claim among several others presented in a
case, after a determination of the issues material to a
particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of said
claim.
Several judgment(Sec. 4, Rule 36) – It is one rendered by a
court against one or more defendants and not against all
of them, leaving the action to proceed against the others.
The need for this classification of judgment stems from the
principle of civil actions that encourage joinder of courses of
action. If there are several causes of action embodied in a
complaint, it is proper for the court that after the trial of a
particular cause of action, it should render a judgment for
that particular cause of action. If there is joinder of parties,
the court has also the prerogative to render a separate
decision concerning a particular party if his claim has already
been terminated when the presentation of evidence on his
claim is finished. And what the court does is only to wait for
the presentation of evidence concerning the claim of other
parties, the court can also render a decision separately.
These are decisions that are exceptional, in the sense that we
expect a trial court to make only one judgment in one
particular case. It is unusual for the court to render several
decisions involving one particular case. That is why, even if
Rule 36 authorizes the court to promulgate separate or several
decisions, if you will go to Rule 41, Appeal From The RTCs, in
Section 2, it is mentioned that if the court renders separate or
several judgments, although we call these as judgments, they
are not appealable. The parties will have to wait until the
principal action is finally resolved before they can even think
of appealing the case. So, although Rule 36 designates these
as judgments, they are not appealable. The court will have to
render a principal decision later on, after everything is
concluded.
So, if that is a separate judgment involving once cause of
action, the winning party or losing party cannot appeal. These
parties will have to wait until the court finally decides the case
in its entirety, unless the court allows an appeal if the party is
entitled. Usually, the court does not allow it, because that will
lead to a situation where several appeals emanate from one
case, which is also frowned upon by the SC. There should only
be one decision in a particular case, and there should be one
appeal if a party decides to appeal.
This is also the reason why the decisions that are classified in
Rule 36, Separate Judgments and Several Judgments, are
sometimes referred to as interlocutory judgments, because
they cannot be appealed by express provision of Rule 41,
although they can be rendered validly by the court.
Interlocutory Orders – those that determine
incidental matters that do not touch on the
merits of the case or put an end to the
proceedings. E.g. Order denying a motion to
dismiss, granting an extension of time or
authorizing an amendment.
So if you come across that term in your examinations,
interlocutory judgments, and you find the use of
‘interlocutory’ and ‘judgment’ to be in conflict with one
another, you apply the following view: Because a judgment
cannot be interlocutory. A judgment by the very term should
be a judgment of the merits. But if you characterize a
judgment as interlocutory, that is only to emphasize that the
judgment, although it resolves the merits of the case, cannot
be appealed without the permission of the trial judge.
Rule 33
Rule 33 begins with an enumeration of special kinds of
judgments: Judgment on Demurrer to Evidence, Judgment on
the Pleadings and Summary Judgments. There are other kinds
of judgments not found under Rules 33, 34 and 35. Several are
mentioned in Rule 41, Section 1:
Judgment by Consent, Judgment upon a Compromise,
Judgment by Confession.
There is another one in Rule 51, a Memorandum Decision.
Memorandum decision is one in which the appellate court may
adopt by reference, the findings of facts and conclusions of
law contained in the decision appealed from.
There are judgments by virtue of jurisprudence: Judgment
nunc pro tunc, provisional judgment, etc.
Q: What are the kinds of judgment?
A:
1. Judgment upon compromise – It is one conferred on the
basis of a compromise agreement entered into between
the parties.
2. Judgment by confession – It is one rendered by the court
when a party expressly agrees to the other party’s claim
or acknowledges the validity of the claim against him.
3. Judgment upon the merits – It is one that is rendered
after consideration of the evidence submitted by the
parties during the trial of the case.
4. Clarificatory judgment – It is rendered to clarify an
ambiguous judgment or one difficult to comply with.
5. Judgment nunc pro tunc (Now for then) – A judgment
intended to enter into the record the acts which had
already been done, but which do not appear in the
records. Its only function is to record some act of the court
which was done at a former time, but which was not then
recorded, in order to make the record speak the truth,
without any changes in substance or any material
respect.
6. Judgment sin perjuicio – Judgment without a statement
of the facts in support of its conclusion to be later
supplemented by the final judgment. This is not allowed.
7. Judgment by default (Sec. 3, Rule 9) – Rendered by the
court following a default order or after it received, ex
parte, plaintiff’s evidence.
8. Judgment on the pleadings (Rule 34) – Proper when an
answer fails to tender an issue because of a general or
insufficient denial of the material allegations of the
complaint or when the answer admits the material
allegations of the adverse party's pleading.
9. Summary judgment (Rule 35) – One granted by the court
for the prompt disposition of civil actions wherein it clearly
appears that there exists no genuine issue or
controversy as to any material fact.
10. Several judgment (Sec. 4, Rule 36) – It is one rendered by
a court against one or more defendants and not against all
of them, leaving the action to proceed against the others.
11. Separate judgment (Sec. 5, Rule 36) – It is one rendered
disposing of a claim among several others presented in a
case, after a determination of the issues material to a
particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of said
claim.
12. Special judgment (Sec. 11, Rule 39) – One which can only
be complied with by the judgment obligor because of his
personal qualifications or circumstances or one that
requires the performance of an act other than:
a. Payment of money; and
b. Sale of real and personal property.
13. Judgment for specific acts (Sec. 10, Rule 39) – Applicable in
cases of:
1. Conveyance, delivery of deeds, or other specific
acts, vesting title;
2. Sale of real or personal property;
3. Delivery or restitution of real property;
4. Removal of improvements on property subject
of execution; or
5. Delivery of personal property.
14. Judgment on demurrer to evidence (Rule 33) – A judgment
rendered by the court dismissing a case upon motion of the
defendant, made after plaintiff has rested his case, on the
ground that upon the facts presented by the plaintiff
and the law on the matter, plaintiff has not shown any
right to relief.
15. Conditional judgment – It is one the effectivity of which
depends upon the occurrence or non-occurrence of an
event.
16. Final judgment – One which disposes of the whole
subject matter or terminates the particular proceedings
or action, leaving nothing to be done by the court but to
enforce by execution what has been determined.
But the principal classification of judgments is the one given
in the Rules, particularly these Rules which speak about
Special Judgments.
What is so special about these three decisions of the
court?
As we said earlier, they are special as they are rendered by
the court without having conducted a full blown trial as
conceived in Rule 30.
DEMURRER TO EVIDENCE IN CIVIL CASES
Judgment on Demurrer to evidence – only plaintiff
presented evidence. (judgment of dismissal based on
insufficiency of evidence to support the claim)
If motion for demurrer to evidence is denied, defendant must
present his evidence, judgment thereon will be an ordinary
judgment.
When the Plaintiff rests his case, the Defendant, instead of presentation of
presenting his evidence, files a Motion for Judgment on evidence
Demurrer to Evidence. The defendant asks the court for an Ground That upon the facts
order to dismiss the case based only on the ground of failure s and the law, the
of the plaintiff to show right of relief, that there is plaintiff has shown no
insufficiency of the plaintiff’s evidence. There is no right to relief
preponderance of evidence to support the plaintiff’s claim. If The defendant may
denied present his evidence.
The court will have to resolve the motion. The court will either If The complaint may
grant or deny the motion. If the court denies the motion, the granted NOT be filed. The
court in effect tells the defendant that the plaintiff’s remedy of the
evidence is adequate. What the defendant has to do now is plaintiff is to appeal
not to appeal, because the denial of a motion for judgment on from the dismissal.
demurrer to evidence is interlocutory. No appeal is allowed.

Can the defendant resort to Rule 65 on the ground that the

Remember the rules of demurrer to evidence and the other
court has gravely abused its discretion amounting to lack or
principles that derive from the granting of demurrer to
excess of jurisdiction?
evidence in a civil case. You always compare them to demurrer
He can try. in a criminal case. These topics are usually involved in Bar
examination.
Under the Rules, if the defendant’s motion for judgment on
demurrer to evidence is denied, it is the duty of the
defendant to present now his own evidence. He cannot appeal
In a civil case, if a defendant files a motion for the dismissal
it, he cannot even think about appealing, he just have to
of the complaint based on insufficiency of evidence, and that
present his own evidence.
motion is denied, what the defendant will do is to go ahead
with the trial and present his evidence. And after the
Demurrer to defendant has rested, the court will render the decision. The
Evidence (Rule 33) decision, if the order for demurrer to evidence is denied, is
When to After the plaintiff just an ordinary judgment on the merits of the case under
file rests its case or after Rule 36. It is no longer a special type of a judgment.
the completion of the
But if the trial court grants the motion, it means it will order
the dismissal of the case. The dismissal is a final order, in fact
a judgment on the merits of the case. The winning party is
the defendant. The plaintiff can appeal the dismissal.
Usually, the if the trial court is the RTC, it will be brought to
the CA. So, it is brought to the CA. The CA will have to review
the case based solely on the records transferred to it by the
RTC. The records will show that the defendant has not
presented any evidence at all. Right away, the defendant will
be at a disadvantage when the case is reviewed by an appellate
court. The court will review only the evidence presented by
the plaintiff. There is a great possibility that the CA will not
agree with the trial court, and will reverse the dismissal of the
case.
B.P. 129 also confers authority on the CA to receive evidence
even in appeal of cases from the lower court, the conferment
of authority while acting as an appellate court is only on one
instance, only on grant of motion for new trial based on
NDE. It will not apply to demurrer to evidence. The evidence
the defendant will present is hardly NDE as the defendant had
these pieces of evidence during the trial in the RTC. This is
why in demurrer to evidence in civil cases, the defendant
waives his right to present his evidence when the trial court
grants his motion and the case is dismissed but the dismissal
is reversed on appeal.
Compare this to the demurrer to evidence present in a
criminal case.

If the CA reverses the order of dismissal by demurrer to Q: Distinguish demurrer to evidence in civil cases from
evidence and the CA tells the parties that the evidence demurrer to evidence in criminal cases.
submitted is adequate, CA simply render its own decision on A:
the merits of the case, relying solely on the evidence
Civil Case Criminal Case
submitted by the plaintiff.
Leave of Not required With or Without
court
The defendant cannot ask the CA to present his evidence. It is
If Judgment on the Judgment on the
not proper since the evidence should have been presented in
granted merits; The Plaintiff merits; The Plaintiff
the trial court. The CA, as a reviewing court, will only rely on
may appeal from the cannot make an appeal
the records transmitted to it by the RTC.
order of dismissal of from the order of
the case dismissal due to the
The defendant cannot argue that the CA is authorized to constitutional
receive evidence under the provisions of BP 129. Under BP 129, prohibition against
the CA is allowed to receive evidence if it acts in exercise of double jeopardy
its original jurisdiction, which is not the case in this instance If denied The Defendant may The Defendant may
as the CA is acting under is appellate jurisdiction. Although
 proceed to adduce his adduce his evidence demurrer
evidence only if the demurrer is How can The plaintiff files a The court may motu
filed with leave of demurrer motion to deny motion propio deny the
court. be to demurrer to motion.
If there was no leave denied? evidence.
of court, accused can
no longer present his
evidence and submits
After the prosecution has rested, the accused can also file a
the case for decision
motion for judgment on demurrer to evidence. But there is
based on the
one requirement in a criminal case not found in a civil case:
prosecution’s evidence
the accused should get leave of court if the accused wants to
If the If the court finds If the court finds the preserve his right to present evidence once the motion is
plaintiff plaintiff’s evidence prosecution’s evidence denied by the trial court. Failure to get leave of court before
appeals insufficient, it will insufficient, it will filing of the motion, and the motion is subsequently denied,
from the grant the demurrer by grant the demurrer by then the accused has waived his right to present his evidence
order of dismissing the rendering judgment in the trial court. The trial court will not allow the accused to
dismissal complaint. The acquitting the present his evidence, and the next phase will be a judgment of
judgment of dismissal accused. Judgment of conviction, meaning that the evidence presented by the
is appealable by the acquittal is not prosecution is adequate to convict the accused, that the
plaintiff. If plaintiff appealable; double evidence has met the quantum of evidence, which is proof
appeals and judgment jeopardy sets in beyond reasonable doubt. No leave of court is required in
is reversed by the demurrer to evidence in civil cases.
appellate court, it will
decide the case on the
In a criminal case, demurrer can be initiated either by the
basis of the plaintiff’s
accused or the court itself motu propio. The idea of demurrer
evidence with the
to evidence can come from the court. So if the prosecution
consequence that the
has rested, the court can even tell the accused to file a
defendant already
motion for judgment on demurrer to evidence. If the idea
loses his right to
comes from the court, the accused should file because it is
present evidence. No
the court who already encourages you to file the motion. That
res judicata in
means to say, even to the court, the prosecution’s evidence
dismissal due to
failed to meet the quantum of evidence required to convict
the accused. In a civil case, the court cannot initiate the idea
as to demurrer to evidence. It should come from the mind of
the defendant’s counsel.
If in a criminal case, the demurrer to evidence is granted, the
information will be dismissed, which is tantamount to
acquittal of the accused. The prosecution can no longer
appeal, nor can Rule 65 be availing, both being due to
prohibition against double jeopardy. Take note, there can be
no appeal as to the dismissal of the information, but there can
be an appeal as to the civil aspect of the case. In a civil case, if
the court dismissed the civil action, the plaintiff may appeal
the dismissal.
If we allow the civil aspect of the criminal case already
dismissed to be appealed, there is a chance that the appellate
court will find merit in the appeal of the private complainant,
and therefore the appellate court will allow damages to be
awarded to the private complainant. The satisfaction of these
damages will be directed against the accused, who has been
acquitted from the crime. In a criminal case, an accused may
be acquitted of the crime, but may be found civilly liable for
any injury resulting therefrom. This is because, the conviction
of the accused requires a higher degree of proof to be met
(proof beyond reasonable doubt), whereas a lower degree of
proof is required for proving liability for civil damages (mere
preponderance of evidence).
JUDGMENT ON THE PLEADINGS
Q: When is there a judgment based on pleadings?
A: Where an answer fails to tender an issue, or otherwise
admits the material allegations of the adverse party’s
pleading, the court may, on motion of that party, direct
judgment on such pleading.
Note: Judgment must be on motion of the claimant. It cannot
be rendered by the court motu propio.
Q: What are cases where judgment on the pleadings will
not apply?
A:
1. Actions for the declaration of nullity of a marriage
2. Actions for annulment of marriage
3. Actions for legal separation
Note: in the above cases, the material facts alleged in the
complaint shall always be proved (Sec. 1, Rule 34)
Judgment on the pleadings
Judgment on the pleadings (Rule 34) – Proper when an answer
fails to tender an issue because of a general or insufficient
denial of the material allegations of the complaint or when the
answer admits the material allegations of the adverse party's
pleading.
Defendant filed a motion for judgment of the pleadings,
although the answer was one without a counterclaim with
meritorious defenses. What will be the effect thereof?
SC held that if the movant defendant is asking for judgment
on the pleadings, he is deemed to be admitting all the
allegations in the complaint.

In Judgment on the pleadings, there is an answer filed by the
defendant. But that answer admits the allegations in the
complaint. Or, even if the answer in form denies the
allegations in the complaint, the denial is not specific as
required in the Rules. We are made familiar again with the
principle in a civil case that when a general denial is made,
that is deemed to be an admission, which is the reason why a
court need not conduct a pre-trial nor a trial.
If the plaintiff receives a copy of the answer which does not
set up any defenses at all, but instead admits all the
allegations in the complaint, what the plaintiff needs to do is
to file a motion for a judgment on the pleadings.
In other words, if we follow the inherent nature of a judgment
of the pleadings, the movant should be the plaintiff in a
complaint or a permissive counterclaim or cross-claim. There
should be a motion initiated by the plaintiff asking the court
for a judgment on the pleadings.
Is there any prohibition against the defendant who has
filed an answer to also move for judgment on the
pleadings?
There is really nothing said in the Rules that says about a
defendant, upon filing of his answer, being prohibited to file a
motion for a judgment on the pleadings. But it seems to be a
crazy idea for a defendant to himself move for a judgment on
the pleadings. In a case brought to the SC where it was the
defendant himself who moved for a judgment on the
pleadings, although the answer was purely an answer without
any counterclaim, cross-claim or third party complaint, but
containing several meritorious defenses, the SC ruled that if a
defendant is a movant for a judgment on the pleadings, the
defendant is deemed to have admitted the allegations
contained in the complaint. So it is really very risky for a
defendant to be a movant for a judgment on the pleadings.
Even if his answer is properly crafted, even if there is a
specific denial, if it was the defendant that filed a motion for
a judgment on the pleadings, the defendant will be considered
to have admitted all the allegations in the complaint. So, the
court will render a judgment in favor of the plaintiff.
A judgment on the pleadings is also a judgment on the merits.
It should comply with the essentials of a valid judgment under
Rule 36.
SUMMARY JUDGMENTS
Q: What is a summary judgment?
A: A summary judgment or accelerated judgment is a
procedural technique to promptly dispose of cases where the
facts appear undisputed and certain from the pleadings,
depositions, admissions and affidavits on record, of for
weeding out sham claims or defenses at an early stage of the
litigation to avoid the expense and loss of time involved in a
trial. Its object is to separate what is formal or pretended
denial or averment from what is genuine and substantial so
that only the latter may subject a party-in-interest to the
burden of trial. Moreover, said summary judgment must be
premised on the absence of any other triable genuine issues
of fact. Otherwise, the movants cannot be allowed to obtain
immediate relief. A genuine issue is such issue of fact which Judgment on the Summary judgments
requires presentation of evidence as distinguished from a pleadings
sham, fictitious, contrived or false claim (Monterey Foods Movant Plaintiff only Either plaintiff or
Corp. vs. Eserjose, GR 153126, Sept. 11, 2003). defendant
Answer Answer does not There is an issue
Q: What are the requisites of summary judgments? tender an issue tendered in the answer,
A: but it is not genuine or
1. There must be no genuine issue as to any material fact, real issue as may be
except for the amount of damages; and shown by affidavits and
2. The party presenting the motion for summary judgment depositions that there is
must be entitled to a judgment as a matter of law. no real issue and that
the party is entitled to
judgment as a matter of
Q: When is a claimant allowed to file for summary
right
judgment?
Notice Movants must Opposing party is given
A: A party seeking to recover upon a claim, counterclaim, or
give a 3-day 10 days’ notice
cross-claim or to obtain a declaratory relief may, at any time
notice of hearing
after the pleading in answer thereto has been served, move
with supporting affidavits, depositions or admissions for a Termination Entire case may May only be partial
summary judgment in his favor upon all or any part thereof be terminated
(Sec. 1, Rule 35). Who can file Only the plaintiff Either the plaintiff or
or the defendants the defendant may file
as far as the it
Q: When is a defendant allowed to file for summary
counterclaim,
judgment?
cross-claim or
A: A party against whom a claim, counterclaim, or cross-claim
third-party
is asserted or a declaratory relief is sought may, at any time,
complaint is
move with supporting affidavits, depositions or admissions for
concerned can file
a summary judgment in his favor as to all or any part thereof
the same
(Sec. 2, Rule 35).
Basis of the Based only on the Based on the pleadings,
judgment pleadings alone, supporting affidavits,
JUDGMENT ON THE PLEADINGS VERSUS SUMMARY hence, only on the depositions or
JUDGMENTS complaint and the admissions ( see Sec. 1,
 answer Rule 35).
If you compare the provisions of a judgment on the pleadings
to that of a summary judgment, as contained in Rule 34, we
will immediately notice that there is a section which talks
about a Summary judgment by plaintiff and a Summary
judgment by defendant. Unlike in judgment on the pleadings,
where we expect the movant to be a plaintiff, in a summary
judgment, the law gives either parties the option to file a
motion for summary judgment. This motions are expressly
recognized in the rules.
Q: When is a claimant allowed to file for summary
judgment?
A: A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any time
after the pleading in answer thereto has been served, move
with supporting affidavits, depositions or admissions for a
summary judgment in his favor upon all or any part thereof
(Sec. 1, Rule 35).
Q: When is a defendant allowed to file for summary
judgment?
A: A party against whom a claim, counterclaim, or cross-claim
is asserted or a declaratory relief is sought may, at any time,
move with supporting affidavits, depositions or admissions for
a summary judgment in his favor as to all or any part thereof
(Sec. 2, Rule 35).
Another term for summary judgment under American Rules is
an accelerated judgment. It seems to be similar to that in
acceleration clause.
Why will the court render a summary judgment?
The court will not conduct a full blown trial envisioned in Rule
30. In a summary judgment designed not to conduct full-
blown trial, according to jurisprudence, there is an issue in the
answer submitted by the defendant, but it turns out to be a
sham issue. Therefore, there is no need for the court to
conduct a full-blown trial on a sham issue. Whether or not the
issue is genuine will depend upon the circumstances of the
case.
An instant example of a summary judgment rendered by a
court is that where the court found that the issue is not really
genuine although there is really an issue raised in the answer.
A complaint was filed by the plaintiff for an unpaid loan. The
complaint carried with it an actionable document attached to
the complaint, a printed promissory note. The promissory
note contained a blank as to the date of the maturity of the
loan, which was unfortunately not accomplished. So, the
promissory note is indeterminate as to the date of maturity.
The defendant filed an answer and set up the defense that
the filing of the complaint was premature because the debt
has not matured, and the defendant pointed out that the
blank wherein the date of maturity was supposed to be
indicated has no entry. The defendant interposed that the
court should first fix the maturity date of the complaint
before the plaintiff can file a complaint for recovery of the
loan. The plaintiff filed a motion for summary judgment. And
the court agreed with the plaintiff that the defense set up by
the defendant, that the maturity of the loan has not yet
happened, is really a sham issue, as the issue is in conflict
with the provisions of substantive law. The SC said that if that
is a promissory note without a date fixed as to maturity, that
is a note payable on demand, as provided in the NCC. If there
is already a demand made by the creditor, and the debtor
failed to comply with that demand, it means there is already a
breach of the obligation by the debtor.
In as similar case where the plaintiff moved for summary
judgment because the answer of the defendant does not raise
any issue, the court found merit in the motion. But when the
court prepared the order granting the motion for summary
judgment, the court mentioned that the motion is one that is
asking for a judgment on the pleadings. The dispositive
portion of the order called the judgment as on for judgment
on the pleadings in favor of the plaintiff, directing the
defendant to pay.
The defendant challenged the validity of the judgment, saying
that what the court should have rendered should be a
summary judgment, because the court made a finding that
the issue is not genuine, and yet the court issued a judgment
on the pleadings, and therefore the judgment is void. SC held
that whether it is called a summary judgment or judgment on
the pleadings, it does not really matter at all, as there is an
adjudication on the merits. The error was purely formal. SC
said that the error in the determination whether the judgment
was a summary judgment or a judgment on the pleadings will
not prejudice the defendant, and therefore cannot be declared
as void. After all, it is a judgment that complies with the
requirements of Rule 36. There is a determination of the
rights and obligations of the parties involved in the cause of
action.
There is a summary judgment that is similar to separate
judgment and several judgment as it is interlocutory. If you
read the Rule on summary judgment, there is such a thing as
partial summary judgment. If the summary judgment is a
partial summary judgment, that is an interlocutory order, as it
does not dispose of the case completely. It disposes only of
the issue that was raised before the court. It cannot be
appealed.
In a summary judgment, unlike in a judgment on the
pleadings, the court will conduct a summary hearing. In
judgment on the pleadings, the court will not conduct a
hearing at all, as the court will simply rely on the contents of
the complaint and the answer. Since there is an issue raised
by the defendant in summary judgment, the court will need to
conduct a summary hearing in order to determine whether
that is a sham issue or a genuine issue. There is need by the
parties to present evidence in order to support their
respective issues. The parties could present affidavits,
depositions, or any other document that the parties may
present. What the court will not allow is a full-blown hearing
on the matter as to whether the issue is genuine or not. This
issue will have to be proven only by documentary evidence,
affidavits or evidence taken under modes of discovery.
The SC has abandoned the old doctrine that summary
judgments cannot be available in actions for recovery of
property. SC has decided several cases which affirmed the
availability of summary judgments involving recovery of title
to or possession of real property. It is available in real or
personal civil actions as long as the requisite that the issue is
not a genuine issue is present.
JUDGMENT BASED ON COMPROMISE
Aside from the special kinds of judgments provided for in the
Rules, there is a special kind of judgment provided for in the
NCC. There are several provisions in the NCC which encourage
the parties to enter into an amicable settlement or
compromise. The NCC considers a compromise as a contract
between the parties, and therefore, if the parties entered
into a contract where they signed a compromise agreement,
they do not have to submit that agreement to a court for
approval. According the SC, if there is a compromise
agreement signed by the parties, since that is a contract, then
that is the law binding between the parties. There is no need
for court approval to validate the compromise agreement. For
purposes of validity, we follow the provisions of the NCC, it
will be treated just like any other contract. As long as the
parties give their consent freely, their consent is not vitiated,
their signatures appear in the agreement, that will be the
contract between them, that will be the law between the
parties.
Approval by the court is not necessary for the validity of the
compromise agreement. Approval of the court is necessary
only for the execution of the compromise agreement.
For instance, there is a case for recovery of 2M loan filed by
the creditor against the debtor. They both agreed to settle
their differences. They signed a compromise agreement to
the effect that the debtor fully recognizes his obligation to
the creditor, but they convert the payment of the loan to that
of payment in installments every quarter, fixing the amount
of installments. They do not submit the compromise
agreement for approval. The parties jointly moved for the
dismissal of the case, which the court complied. The debtor
subsequently commits a breach in the payment of
installments.
After the breach, can the creditor go back to the court
and ask for revival of the case?
No.
Can the creditor file a new case for collection against the
debtor for recovery of the installment or of the whole
account if in case there is an accelerator clause?
Yes. It is not barred, as the cause of action of the creditor is
now different from the previous case filed. His claim is now
based on a compromise agreement, not a loan.
In order to enforce payment as provided in the written
compromise agreement, the creditor has to file a complaint
against the defendant debtor. They will have to undergo the
same process when the first case was filed concerning the
loan. But that is one case of a compromise agreement which
does not carry with it the approval of the court.
The opposite is when there is a compromise agreement signed
by the parties, but this time, the parties do not jointly move
for the dismissal of the complaint, but instead they submit
the compromise agreement to the court for approval. The
court renders a decision based on the compromise agreement.
If the debtor commits a breach in the payment as agreed
upon, what the creditor can do is to simply file a motion for
execution in the court. The judgment based upon a
compromise is a judgment on the merits. And under the NCC,
a judgment based upon a compromise is immediately
executory. There is no appeal. A judgment by the court based
on a compromise agreement cannot be appealed.
Does it mean to say that a party of a compromise
agreement has no recourse at all to challenge the validity
of the judgment based upon a compromise agreement?
There is a remedy under Sec. 1 Rule 41. The defendant may
file a motion to set aside the compromise agreement based on
the ground of vitiated consent. That is the remedy in order a
judgment based upon a compromise.
Supposing the court does not set aside the judgment
notwithstanding the motion, can the defendant appeal?
No. Under the Rules, a judgment based upon a compromise
agreement is inappealable. Also, the order denying the motion
is in the nature of an interlocutory order which is
inappealable.
Q: What is the remedy in cases where appeal is not
allowed?
A:
GR: In those instances where the judgment or final order is
not appealable, the aggrieved party may file the appropriate
special civil action under Rule 65 (Sec. 1 Rule 41).
There is a remedy given for such an order denying the motion
to set aside the judgment under a compromise. Among those
orders not appealable found under Section 1 of Rule 41 is 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,” which can avail
of the remedy provided in this section. Thus, what Rule 41
says is that there must be a Motion to Set Aside the
Judgment of Compromise and there must be a denial of the
motion before a Rule 65 petition can be availed of. If the
proponent immediately files a Rule 65 petition assailing the
validity of the judgment based on a compromise agreement as
well as the compromise agreement itself, that petition will be
dismissed for noncompliance with the requirement under Rule
65. There is still a plain, speedy and adequate remedy that can
be had in the form of a Motion to Set Aside the Judgment of
Compromise and the Compromise Agreement founded on
vitiated consent.
REMEDIES TO ASSAIL A JUDGMENT
Q: What are the available remedies to the aggrieved
party after rendition of judgment?
A: The remedies against a judgment may refer to those
remedies before a judgment becomes final and executory and
those remedies after the same becomes executory.
1. Before a judgment becomes final and executory, the
aggrieved party may avail of the following remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal
2. After the judgment becomes executory, the losing party
may avail of the following:
a. Petition for relief from judgment;
b. Action to annul judgment;
 c. Certiorari; and
d. Collateral attack of a judgment.
Compare the remedies available to a party in a civil case to
that in a criminal case. The consequences of availing a remedy
in a civil case might be different in criminal cases. Also, there
are remedies which are applicable in civil cases which might
not be applicable in a criminal case.
Remedies in a Civil Case:
The remedies would depend primarily on whether the
judgment has been or has not been entered.
If judgment has not been entered, the period to appeal
has not yet expired (15-30 days)
Remedies available :
Rule 37:
~Motion for New Trial
~Motion for Reconsideration
~Appeal
If judgment has been entered:
~Rule 38 Motion for Relief From Judgment
~Rule 47 Motion for Annulment of judgment
~Rule 65 Certiorari, Prohibition and Mandamus (in
certain instances)
Remedies in a Criminal Case
Before judgment of conviction becomes final
~Motion for New Trial
~Motion for Reconsideration
~Appeal
~Reopening of a case due to NDE
Note: Reopening of a civil case is available but before
judgment is rendered. If judgment is rendered, it is not
available in a civil case. Jurisprudence requires no
judgment yet handed down by the court, the time
frame for availment of this remedy is dependent upon
the termination of the trial. The termination of the trial
starts the period to move for this remedy. As long as
the judgment has not been rendered, any party can
move for reopening of the case.
Grounds for reopening civil cases: There are no grounds
given specifically in the rules. It is not expressly
recognized, it is just an accepted remedy in
jurisprudence. It is a remedy availed of after trial has
ended but before the judgment is rendered. The
purpose is for allowing the movant to offer in evidence
those that he may have forgotten to present during the
trial, or additional evidence as the case may be.
Reopening of a case in criminal cases: This is
expressly recognized in criminal procedure. It can be
had even after the judgment has been rendered, so
long as judgment has not become final and executory.
After judgment of conviction becomes final:
Habeas Corpus
Petition for Certiorari under Rule 65 in exercise of
judiciary under its equity jurisdiction
If the convict feels that his detention in prison, although
supported by a judgment of final conviction, is unlawful, the
remedy he may avail of is Habeas Corpus, not a petition to
annul judgment. The SC has made this very clear. Rule 47
applies only to a civil case, it cannot apply to a criminal case.
The equivalent remedy in a criminal case is a petition for
habeas corpus. The SC in the exercise of its equity jurisdiction
cold also entertain a Petition for Certiorari under Rule 65 even
if the judgment of conviction has become final and executory
When can a petition for certiorari be had once the
judgment had become final and executory long before?
It can be had when the petition is applied in order for the
judiciary to rectify a wrong under its equity jurisdiction. A
situation that calls for a special remedy will always be
answered by a petition for certiorari. A certiorari will always
be entertained as part of its equity jurisdiction. Certiorari is a
remedy in both a civil or criminal case in order to challenge a
final and executory judgment if the situation calls for the SC
to exercise its equity jurisdiction. That is why in the
enumeration of remedies, in either criminal or civil case, we
also include Certiorari under Rule 65.
RULE 37 – NEW TRIAL OR RECONSIDERATION
In criminal procedure, nothing is mentioned about a pro-
forma motion for new trial or reconsideration.
Q: What is a pro- forma motion?
A: A pro- forma motion is one which does not satisfy the
requirements of the rules and one which will be treated as a
motion intended to delay the proceedings (Marikina
Development Corporation v. Flojo, 251 SCRA 87).
In Rule 37, for civil cases, a motion for new trial or
reconsideration must strictly comply with the requirements of
a motion so that such motion will not fall under the concept of
a pro-forma motion.
Pro-forma motion for reconsideration in civil cases is
almost always denied; it could result to an instance where a
losing party moving that all remedies available will be
unavailable as sanction. A pro-forma motion for
reconsideration does not stop the running of the
reglementary period to appeal, and if the denial of such
motion comes after the expiration of the period to file an
appeal, remember that entry of judgment takes place by
operation of law under Rule 36. Upon entry of judgment,
movant/losing party loses the remedy of appeal and is left
only with the after judgment remedies of petition for relief
from judgment, annulment from judgment or a petition under
Rule 65 as remedies.
A motion for new trial or motion for reconsideration in civil
cases is always initiated by the losing party.

There is no pro forma motion for new trial or
reconsideration in a criminal case. The court cannot simply
discard the motion for new trial or reconsideration for non-
compliance, even if the motion does not comply with the
requirements of a motion. The motion for reconsideration
or new trial will always stop the running of the period to
appeal. The idea for the accused to file motion for new trial
or reconsideration could come from the court. The court can
even initiate a new trial or reconsideration as long as the
accused gives his consent.
(Rule 37)Grounds for motion for new trial is completely
different from grounds for reconsideration. This is the
reason why these motions are distinct and different
from one another.
New Trial
1. Extrinsic fraud, accident, mistake or excusable negligence
(FAME) which ordinary prudence could not have guarded
against and by reason of which the rights of the aggrieved
party was impaired; or
2. Newly discovered evidence, which could not with reasonable
diligence, have been discovered and produced at the trial, and
which if presented, would probably alter the result (Sec. 1,
Rule 37).
Reconsideration
1. The damages awarded are excessive;
2. The evidence is insufficient to satisfy the decision or final
order; or
3. The decision or final order is contrary to law (Sec. 1, Rule
37).
Let us say that a losing defendant/accused is advised by
his counsel that they have 3 remedies while the period of
appeal was running, motion for reconsideration, motion
for new trial and appeal. The defendant/accused told the
counsel to avail of all three. Thus, the counsel filed a
motion for new trial, a motion for reconsideration and
lastly, an appeal. The trial court received all three. The
appeal was duly perfected. What remedy will the court
entertain?
SC had held that if the aggrieved party files or perfects an
appeal during the pendency of his motions for new trial and
reconsideration, the motions shall be deemed abandoned.
It is really inconsistent for an aggrieved party to file a motion
for new trial or reconsideration, and while waiting for the
resolution of his motion he perfects an appeal. It will render
the motions academic. The court, upon perfection of the
appeal and upon payment of the docket fee, will lose
jurisdiction over the case, and what will remain with the court
is residual jurisdiction.
The winning party, after receiving a copy of the decision,
moved for the execution pending appeal. It is a matter of
discretion to the court founded on special circumstances.
The losing party filed a motion for new trial while the
former motion was pending. Can the court grant the
motion for execution pending appeal?
No. The trial court should resolve the motion for new trial The principle in new trial in the case of fraud, the fraud
first before the motion pending appeal is resolved, even if the committed must always be EXTRINSIC FRAUD. It cannot be
motion pending execution is for special reasons. Motion for intrinsic fraud. In Rule 37, there is a basis for the court to
reconsideration or motion for new trial of the aggrieved party determine extrinsic fraud from intrinsic fraud for the trial to
should be given preference over any other motion by the be properly resolved. If the fraud alleged in the motion is
prevailing party. intrinsic, that motion will be denied. What should be proven
should be an extrinsic fraud.
Motion for new trial on ground of FAMEN.
There must be an affidavit of merit. FAMEN must be the Rule 37 could give a good basis for making a distinction
reason for which the motion for new trial is bound. Affidavits between the two frauds.. There are 2 clauses to justify
should show FAMEN. The affidavit should be executed by extrinsic fraud as a ground for new trial compared to extrinsic
persons with personal knowledge surrounding the fraud:
circumstances of FAMEN. “which ordinary prudence could not have guarded
against” and “by reason of which such aggrieved party
It is not correct to say that in a motion for new trial, we has probably been impaired in his rights.”
always need an affidavit of merit. We need affidavit of merit
only if the ground relied upon is FAMEN. Motion for new trial If we rely solely on Rule 37, in court cases, the court has
on ground of NDE will not need Affidavit of Merit, merely the allowed lawyers to ‘cheat’ one another, so long as
affidavit of the new witness will give testimony, or an ‘cheating’ is limited only of intrinsic fraud, which could be
authentic copy of document or object evidence to be prevented through the use of ordinary diligence.
presented.
For instance, the court has ruled that if a party wins the case
Extrinsic fraud vs. Intrinsic Fraud in Motion for New Trial because his cause of action is supported by a document which
EXTRINSIC FRAUD INTRINSIC FRAUD could serve as preponderant evidence which could show his
Connotes any fraudulent Refers to the acts of party title to recover from the defendant. But later on, the
scheme executed by the during trial which does not aggrieved party is able to prove that the document presented
prevailing party outside trial affect the presentation of by the plaintiff, and which is the basis for the judgment in his
against the losing party who the case favor, is a forged document. Forging a document is a crime.
because of such fraud was But in a trial, the admission of a forged document will not be a
prevented from presenting ground for a new trial, or even as NDE. This is because the
his side of the case presentation of a forged document by the plaintiff could
easily be avoided by the defendant through the exercise of
ordinary diligence. If confronted with such document, and the
defendant is not sure as to its authenticity, the defendant
could have called upon witnesses, such as an expert witness,
to prove that such document was forged. His failure to do so
is a waiver of this fact.
Another instance of ‘cheating’ duly proven by the movant in a
motion for new trial based on extrinsic fraud which the SC did
not consider as extrinsic is when the prevailing party
presented witnesses who had perjured. But if the aggrieved
party relies solely on the allegation that all the witnesses
presented by the party all committed perjury, that is not a
ground for new trial, that it is only intrinsic fraud. What the
SC is telling the defendant is that he should also have
‘cheated,’ that he should also have been dishonest. If the
plaintiff presented 2 perjured witnesses, the defendant should
have called 5. So the message given with respect to extrinsic
and intrinsic fraud is that litigants, through their lawyers, can
be dishonest during the course of a litigation. But they should
see to it that the ;cheating’ will not amount to extrinsic fraud,
that which will not deprive the other party of his day in court,
that the other party will have the opportunity to present his
side in court.
That is the life of a lawyer, he is encouraged to be dishonest,
he should be deceptive in his relationship with others lawyers.
Anyway, lawyers will not go to heaven, that is a given fact. It
is found in the Bible. But that is only a part of a passage in
the Bible. The additional passage is that lawyers do not go to
hell. But that does not make the life of a lawyer less
worthwhile. If a lawyer cannot go to heaven or to hell, where
will the lawyer go after death? The implication is that a lawyer
does not have a soul.
That is how the SC looks at the situation. In fact the S in
several cases said we should expect dishonesty in the course
of a litigation. We cannot avoid that. The SC said that if they
allow every act of dishonesty to be a ground for new trial,
there will never be an end to a litigation, because a lawyer will
always be able to point out to the court certain acts of
dishonesty or ‘cheating’ in a motion for new trial.
Mistake
The mistake of a lawyer is the mistake of the client. If the
aggrieved party lost the case due to a serious mistake of the
lawyer, the said party fires his lawyer and gets a new one, the
new lawyer cannot capitalize on the mistake committed by the
former lawyer. The is just applying the rule on agency. The
act of the agent is the act of the principal.
But, there is one situation where the SC relaxed the
application of this principle. The SC said that while it is true
the mistake of the lawyer will always be considered the
mistake of the client. But if the mistake of the lawyer was
tantamount to bad faith, there is an insinuation that the
lawyer deliberately caused the loss of the case of the client,
then that is a ground for new trial. The client’s rights should
be protected in this situation.
But the general rule is that the mistake of a lawyer is the
mistake of the client, and it cannot be a ground for new trial
under FAMEN.

Newly Discovered Evidence
This is an adaptation of an American principle called the Berry
Rule : “Newly discovered evidence, which he could not,
with reasonable diligence, have discovered and produced
at the trial, and which if presented would probably alter
the result.”
Q: What are the requisites of newly discovered evidence
as a ground for New Trial?
A:
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and produced
at the trial with reasonable diligence; and
3. Such evidence is material, not merely cumulative,
corroborative or impeaching, and is of such weight that
if admitted would probably change the judgment (BERRY
RULE) (CIR v. A. Soriano Corporation, GR No. 113703 January
31, 1997).
Because of the requirement, that the result of the case would
probably be altered, we cannot consider cumulative,
corroborative or impeaching evidence as NDE, as these cannot
alter the result of the case. The recantation of a witness is
not NDE. In fact, the SC has been emphatic in its ruling
continuously that if a witness recants, the recantation should
not even be given any attention at all. Because if we give
attention to the recantation of a witness, you can expect
lawyers to produce recantations by witnesses who already
testified in court. So, the stand of the court is that the
testimony of a witness given in open court reflects the truth,
not the recantation. The recantation shall not be treated as
NDE.
In a motion for reconsideration under Rule 37, there are 3
grounds:
damages awarded are excessive,
the evidence is insufficient to justify the decision or
final order,
the decision or final order is contrary to law
There is also a rule under Rule 37 allowing only one motion for
reconsideration by the same party, either prevailing or
aggrieved party. If that is denied, a second motion for
reconsideration will not be allowed, even if the second motion
for reconsideration is founded on a different ground. The rule
against the filing of a second motion for reconsideration is
almost absolute.
Unlike in a motion for new trial, Rule 37 allows a movant to file
second motion for new trial if founded on a ground different
from the one used in the first motion for new trial.
But whether it is a motion for new trial or motion for
reconsideration, there is another rule contained in other
provisions where the court will not allow an extension of time
to file motion for new trial or reconsideration (15-30 day
period). The party must observe the 15/30-day period.
If motion for reconsideration is favorably acted upon, the
court will simply render an amended judgment. If the court
feels that the judgment is contrary to law or the evidence
does not fully support the judgment, the motion for petition under Rule 65 to challenge the denial of the motion
reconsideration should be granted to reduce the liability of and appeal at the same time, which was allowed prior to the
the aggrieved party, but the court will only amend the amendment of Section1 of Rule 41.
previous judgment in order to reduce the liability of the party
aggrieved. MNT or MR in Criminal MNT or MR in Civil Cases
Cases
If the motion for new trial in a civil case is granted, and such Either on motion of accused, Must be upon motion of a
is not a partial motion for new trial, the judgment will be or the court motu propio party, cannot be motu
vacated. But the evidence presented during the trial will not with consent of the accused propio
be disturbed. There is no need for the witnesses who had Grounds for MNT – errors of Grounds for MNT – FAME,
testified in the trial to give their testimony again. law or irregularities or newly discovered
committed during the trial, evidence
If the Motion for new trial granted was that in a criminal case, or newly discovered evidence
the judgment will also be vacated, and all evidence taken Ground for MR – error of law Grounds for MR – Excessive
during the trial need to be retaken and witnesses who or fact damages, insufficient
testified will be recalled. The grounds for new trial in a evidence, or decision is
criminal case are serious irregularities or errors committed by contrary to law
the trial court, not FAMEN. Even if the evidence taken in Filed any time before Filed within the period for
court will not be retaken, there will be a recalling of the judgment of conviction taking an appeal. Should
witnesses who had testified during the trial. becomes final include all the grounds then
available and those not so
In Rule 37, it is clearly provided that if a motion for new trial included shall be deemed
or reconsideration is denied, the denial cannot be appealed or waived.
be subject to Rule 65 as the order of denial is interlocutory. When granted, the original There may be partial grant
What is to be appealed is the judgment rendered on the judgment is always set aside
merits, not the order of denial. Note that Rule 65 is now or vacated and a new
unavailing in the amended Rules in Rule 41. The only remedy is judgment rendered.
an appeal from the judgment on the merits that is the subject
of new trial or reconsideration. SC said that in appealing the
judgment, the aggrieved party can assign as an error the
RULE 38 RELIEF FROM JUDGMENT
denial of the trial court of the motion for new trial or motion
for reconsideration. But, he is no longer allowed to file a
This is a remedy available to the aggrieved party after the 2. Newly discovered evidence, which could not with reasonable
entry of judgment. diligence, have been discovered and produced at the trial, and
which if presented, would probably alter the result (Sec. 1,
There are 2 periods to be reckoned with: Rule 37).
~60 days from receipt of copy of judgment/notice thereof
~6 months from entry of judgment. Is a petition for relief considered as one that is similar to
that of an annulment of judgment?
It is not so. A petition for relief is not an independent action.
There was one case when the aggrieved party, before entry,
In fact, it is just a continuation of the original case. If we
filed before the trial court a petition for relief from judgment
consider petition for relief a separate action from the original
founded on FAMEN. The filing of the petition was irregular
case, a petition for relief should be filed before an RTC
because the judgment has not yet been entered. SC held that
because it is incapable of pecuniary estimation. But since it is
the trial court should not have simply denied and dismissed
not so, Rule 38 provides that it should be filed in the same
the motion. What the trial court should have done was to treat
court which issued the judgment deciding the case. So if the
the motion for relief from judgment as a motion for new trial,
court that decided the case is an MTC, a petition for relief
because the grounds of both motions are similar. Even if a
could be filed in the same court. If the respondent of a
lawyer commits an error, and files a petition for relief from
petition for relief challenged the jurisdiction of an MTC in
judgment founded on FAMEN before the judgment was
deciding the petition for relief on the ground that such
entered, the court will consider the petition for relief as a
petition is incapable of pecuniary estimation, the reply to that
motion for new trial, provided of course, that the petition will
argument is that a petition for relief is just a continuation of
carry with it the requirements needed under Rule 37, an
the original case, not an independent and separate action.
affidavit of merit that will prove the presence of FAMEN. The
Note that the old docket number is used in the title of the
SC has taken a liberal attitude on this kind of error by a
case in a petition for relief. We also do not pay docket fees.
lawyer. The court will ignore the error and just have to rule on
the merits of that motion.
What is important is the timeframe in which to file a petition
for relief from judgment. The SC has been very strict. Time to
Grounds for a motion for new trial is similar to a motion
file should be observed. SC has been very strict the time
for relief from judgment. (FAMEN)
frame because the judgment has been entered and has
1. Extrinsic fraud, accident, mistake or excusable negligence
become final and executory. There is the likelihood that the
(FAME) which ordinary prudence could not have guarded
winning party may already file a motion for execution under
against and by reason of which the rights of the aggrieved
Rule 39 as a matter of right.
party was impaired; or
It could happen that the aggrieved party filed a petition
for relief from judgment and the prevailing party also
file a motion for execution of the judgment. Should the
court grant the motion for execution?
Yes. The court has a ministerial duty to execute the judgment
once the judgment has been entered and has become final and
executory. Motion to execute should be granted once made.
The prevailing party has the right to have the judgment in his
favor enforced.
If the court grants the motion for execution of judgment
because it is a matter of right on the part of the
prevailing party, will it not render academic the relief
from judgment filed by the aggrieved party?
Rule 38 will not result to making the petition for relief
academic simply because of the granting a motion for
execution as a matter of right. Rule 38 says that the
executing court that granted motion for execution and
subsequently entertained a petition for relief from judgment
can issue a TRO or a preliminary injunction order to stop the
enforcement of the writ of execution.
You might say that in the rule on injunction, an injunctive
relief should be granted by a court higher than the court
which rendered the decision. In this case the court which
decided the case and then subsequently granted the motion
for execution of its judgment shall also issue the injunctive
relief against the carrying out of the writ of execution. That
is one of the peculiarities of Rule 38. The court which grants
the execution of its judgment, as it really has no choice as it
is a matter of right, is the same court which will issue an
injunctive relief against the writ of execution it has previously
issued. If there is no injunctive relief issued by the said court,
its decision will be carried out until fully satisfied. This is an
exception to the principle in injunction where the injunctive
relief should come from a higher court. Here, the same court
which decided the case shall be the one who will issue an
injunctive relief against its own officer from executing the
writ of execution the court has previously issued. That is
allowed in Rule 38.
If the petition for relief is granted, can the prevailing
party appeal the order?
No. The order granting relief is interlocutory, hence
unappealable.
If a petition for relief is denied, the order denying
petition for relief is a final order. Can it be appealed? If
not, what is the remedy?
No, it is a final order which is not appealable under Section 1
of Rule 41. The remedy of the aggrieved party is to file a
petition under Rule 65, a petition for certiorari or prohibition
as the case may be.
APPEAL
It could be a matter of right or a matter of discretion.
Q: What is the remedy if the motion is denied?
A: The remedy is to appeal from the judgment or final order
itself subject of the motion for reconsideration or new trial
(Sec. 9, Rule 37, Rules of Court). The movant has a fresh
period of fifteen days from receipt or notice of the order
denying or dismissing the motion for reconsideration within
which to file a notice of appeal. It is no longer assailable by
certiorari. (Sec.9, Rule 37, A.M. No. 07-7-12-SC).
Q: When does the fresh period rule apply?
A: It applies to:
1. Rule 40 – MTC to RTC
2. Rule 41 – Appeals from RTC
3. Rule 42 – Petition for Review from RTC to CA
4. Rule 43 – Appeals from quasi-judicial agencies to CA
5. Rule 45 – Appeals by certiorari to the SC
Note: The “fresh period rule” does not refer to the period
within which to appeal from the order denying the motion for
reconsideration, but to the period within which to appeal from
the judgment itself because an order denying a motion for
reconsideration is not appealable.
The aggrieved party has a right to appeal. It means when he
has perfected the appeal within the period to do so, the
appellate court has no other choice but entertain the appeal,
review the decision and render its own decision.
When we say that appeal is a matter of discretion wherein the
appellate court will determine whether it should be
entertained or not. If that discretion is given to the appellate
court, it simply denies to the party the right to appeal to that
court.
In civil cases, there are 3 modes of appeal given under
Rule 41:
Ordinary appeal
Petition for Review in the CA
Petition for Review on Certiorari under Rule 45
If the origin of the case is the MTC, the only mode of appeal
is an ordinary appeal. Even if the only issue raised is a
question of law, the appeal should be an ordinary appeal
brought to the RTC. Note that the Rules does not divest the
RTC or even the CA to hear appeals based purely on questions
of law. In fact, the Rules expressly say that an appeal to the
RTC from the MTC could either involve both questions of fact
and law or just purely questions of law.
The procedure of appeal from the MTC to the RTC is given
under Rule 40.
Rule 40 – procedure of appeal from MTC to appellate
court (RTC)
The party appealing in a civil case will need to file a Notice of
Appeal and payment of appellate court docket fee. Cases
involving special proceedings and other cases of multiple or
separate appeals will also require submission of a Record on
Appeal. Docket fee is a jurisdictional requirement. Hence, if
not paid on time, SC said the appellate court does not acquire
jurisdiction over the case.
Let us say a case for Unlawful Detainer was filed. A Motion to
dismiss was filed by defendant on the ground of lack of
jurisdiction over the subject matter, which was granted. The
order of dismissal, without prejudice, is not appealable, as
provided for under Rule 41. He cannot appeal, but he can file
petition under Rule 65. (Note that UD is a special proceeding
covered by Rule 70, although cognizable by the MTC)
So, should we follow Rule 41 in appeals from the MTC to
the RTC?
No. Rule 40 does not follow Rule 41. In Section 3, Rule 40,
when an MTC dismisses a case cognizable by it for lack of
jurisdiction over the subject matter, even if the dismissal is
without prejudice, the remedy of the plaintiff is to appeal, via
an ordinary appeal, the order of dismissal rendered by the
MTC.
Why cannot we just follow Rule 41? It says that if a
dismissal is without prejudice, the order is not appealable, and
the remedy is a petition under Rule 65.
Insofar as the MTC and the RTC are concerned, there is a
good reason why Rule 40 says that the remedy of the plaintiff
is to appeal via ordinary appeal, that is to file a notice of
appeal in the appellate court and pay docket fees. This is
because there is a provision under Rule 40 which says that if
the matter is brought to the RTC, and the RTC affirms the
decision of the MTC, it is the duty of the RTC to assume
jurisdiction over the case as if that case originated with the
RTC.
If we tell the plaintiff to observe Rule 41, and then the
plaintiff files a petition under Rule 65, the RTC will not have
any authority to assume jurisdiction over the case, unlike
when the remedy availed of by the plaintiff is an ordinary
appeal. This is because an appeal is not a separate proceeding,
it is just a continuation of the old case. A petition under Rule
65 is an independent proceeding, and not a continuation of the
original case that has been resolved by the MTC.
In cases of Unlawful Detainer decided by the MTC, there
could be an appeal in the RTC involving factual and legal
questions. Insofar as the RTC and insofar as the
prevailing party, is the appeal by the losing party a
matter of right?
Yes. Whenever the mode of appeal is ordinary appeal, the
appeal is one of a matter of right. The court has no discretion
to outrightly dismiss the appeal. It has the duty to review the
case and render its own decision. The RTC as an appellate
court from a decision of an MTC in ID has no discretion to tell
the appellant that an appeal is not given due course, which is
allowed in petition for review and petition for review on
certiorari.
Since the appeal of the losing party in the RTC is a
matter of right, can the RTC also order the dismissal of
the appeal even without rendering its own decision as an
appellate court because the appellant violated certain
orders or provisions of the Rules?
Yes. Although it is the right of the losing party to appeal to
the RTC, the losing party, as an appellant, should also obey
the orders that could be issued by the RTC in relation to the
appeal.
One such order is given in Rule 41 (Section 7[b]), the RTC
acting as an appellate court can require the appellant/appellee
to submit an appeal memorandum. If plaintiff does not submit
an appeal memorandum as ordered, that will be a ground for
the dismissal of the appeal by the RTC. Although appeal is a
matter of right, it is still the duty of the appellant to obey the
orders of the appellate court issued in relation to his appeal
taken to the RTC.
In Rule 41, the RTC can also order the dismissal on appeal if it
can be shown that the docket fees have not been paid or that
the appeal was taken out of time. If the appeal was taken out
of time, the appellate court has no jurisdiction at all to review
the judgment.
If the RTC renders its own decision (affirm or reverse),
can there be a second appeal?
Yes, to the CA via a petition for review. The rule of thumb in
the case of second appeals is that the appeal is a matter of
discretion. The first appeal generally is a matter of right as to
the appellant, as long as the mode of appeal is an ordinary
appeal. But even if the appeal is a first appeal, but the mode is
the one under Rule 45, that is a matter of discretion on the
part of the SC. The second appeal from the RTC to the CA is a
matter of discretion. The CA can either refuse or allow the
appeal. In that appeal to the CA from the RTC in the exercise
of its appellate jurisdiction, purely questions of law can only
be raised before the CA.
Before the CA, could there be a 3rd appeal?
Yes, we can go to the SC under Rule 45, always a matter of
discretion in the civil case. The SC enjoys the prerogative
whether to entertain or not to entertain that appeal.
Final order vs. interlocutory order
Final Order – an order that completely disposes a case or a
particular matter therein. (Remedy is an appeal.)
Interlocutory Orders – those that determine incidental
matters that do not touch on the merits of the case or put an
end to the proceedings. (Remedy is a petition for certiorari
under Rule 65)
Question of fact vs. Question of law
There is a question of law when the doubt or difference arises
as to what the law is on a certain set of facts.
A question of fact on the other hand is when the doubt or
difference arises as to the truth or falsehood of the facts
alleged.
Memorandum decision on appeal (Rule 51)
Memorandum decision is one in which the appellate court may
adopt by reference, the findings of facts and conclusions of
law contained in the decision appealed from (Sec. 24, Interim
Rules and Guidelines)
Rule on harmless error (Rule 51)
SEC. 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.
Harmful error – that error or defect which affected the
substantial rights of parties, being inconsistent with
substantial justice.
Material data rule – an essential component for any mode of
appeal whether an ordinary appeal, petition for review or
petition for review on certiorari ; it simply tells appellant that
regardless of mode of appeal chosen, he should see to it
that he informs the court about the date he received the
decision, the date of filing motion, and the date of denial
by the court of motion for reconsideration/new trial, in
order to help the court determine the timeliness of appeal,
which is determinant of the jurisdiction of the appellate court.
If an appeal is not perfected on time, the appellate court does
not gain jurisdiction over the matter on appeal.
Erroneous appeal vs. improper appeal
Improper appeal – the mode of appeal used is the correct
mode, but the questions raised in the appeal should not
be raised in the appeal (question of fact vs. question of
law). Leads to dismissal of appeal.
Ex. An RTC rendered a decision. The decision was appealed in
the CA. The mode of appeal is an ordinary appeal via a notice
of appeal. Eventually, the records are transmitted to the CA.
Under the new rules, when there is an appeal by ordinary
appeal via notice of appeal, both questions of fact and of law
could be raised. But the rules said that if the only question
raised is purely questions of law, the CA has no jurisdiction.
So the CA can dismiss the appeal when purely questions of law
are raised. This is the importance of knowing the term
improper appeal.
Erroneous appeal – this is a situation wherein the mode of
appeal used is the wrong mode.
Ex. Under the rules, the correct mode is ordinary appeal, but
the mode used was petition for review.
Unlike in improper appeal, where it can lead to a dismissal of
the appeal, there are certain cases where the appeal is
erroneous, it will not lead to dismissal of the appeal.
If the court of origin is an MTC, the mode of appeal is an
ordinary appeal via a notice of appeal or a record on appeal (in
certain cases) in the RTC. From the RTC, as an appellate court,
there could be a second appeal in the CA, but this time, the
mode of appeal is a petition for review.
From the MTC, supposing the mode of appeal used by the
aggrieved party was a petition for review, can the appeal
be dismissed by the RTC on the ground that the appellant
has chosen the wrong mode of appeal?
SC held that if the appellate court is an RTC, and appellant has
chosen the mode of petition for review, RTC should disregard
the error committed by the appellant. The SC reasoned that
the contents of a petition for review meets, and even
exceeds, the requirements of a notice of appeal. A petition
for review is a very lengthy document, there is the application
of the material data rule, there are errors that are assigned
and there are arguments embodied in the petition for review.
In a notice of appeal, it may compose of one paragraph where
an appellant is simply telling the court he is appealing the
decision rendered on such date, alleging the payment of
docket fees. If the appellant wrongfully chooses a petition for
review, the RTC should entertain the petition as the essentials
for a notice of appeal are already contained in the petition for
review.
But if it is the other way around, where the RTC decides the
case as an appellate court and an appeal of its decision was
made by the appellant, and filed in the CA a notice of appeal
instead of a petition for review, that appeal will be dismissed.
The mode of appeal used is erroneous and will not confer
jurisdiction anymore upon the RTC. In other words, there are
instances where the wrong mode of appeal will lead to the
dismissal of the appeal; and there are instances where the
wrong choice will be disregarded by the court.
Also under the Rules, the only mode of appeal allowed in civil
cases to the SC is Rule 45 (appeal by certiorari/petition for
review on certiorari).From the decision of the RTC in its
original jurisdiction, there could be an appeal to the CA or SC.
The appellant decides to go to the SC immediately. It filed a
notice of appeal. SC will dismiss the appeal since the choice of
mode of appeal is erroneous under the Rules. A notice of
appeal will never satisfy the requirements of a petition for
review on certiorari or appeal by certiorari under Rule 45.
On the other hand, even if the Rules are very clear in saying
that in civil cases, the mode of appeal to the SC is only
through Rule 45 using a petition for review on certiorari or
sometimes called appeal by certiorari, if the appellant
inadvertently calls his petition simply a Petition for Certiorari
under Rule 65, the SC will liberally consider that as a Petition
for Review under Rule 45. The contents of Certiorari under
Rule 45 and Rule 65 are essentially the same. But, the SC
cautioned parties, the erroneous appeal must be filed within
the period of appeal (15 days). If you should recall, the period
for appeal by petition for certiorari provided under Rule 45 is
15 days, whereas under Rule 65, the period for filing a petition
under this Rule is 60 days.
In the CA, the decisions that could be appealed from the CA do
not necessarily come from courts of justice. It could be
penned by quasi-judicial bodies. There is just a common mode
of appeal even for quasi-judicial (QJ) bodies, petition for
review.
Appealed decision comes from RTC vs. from QJ body –
There is no difference with respect to the content, but there
is a great difference in the execution of the judgment
appealed. If the decision comes from a trial court in the
exercise of its appellate jurisdiction, being appealed in the CA,
the decision of the trial court cannot be executed. There could
be not execution. There could be an execution, but it should
be an execution pending appeal (filed in the CA). There could
be an execution on motion, supported by special reasons to
convince the CA to order the execution of judgment.
Generally, when there is an appeal to the CA from a court of
justice like an RTC, the appealed decision cannot be the
subject of execution.
In case of QJ body decision, the appeal will not stay the
execution of the decision. The decision of the QJ body will be
enforced. There is only one way in which we can stop the
execution of the decision rendered by a QJ body during the
pendency of the appeal, that is to ask the CA to issue a writ
of preliminary injunction.
Why is execution allowed in QJ bodies?
One reason given in the Rules is that quantum of evidence
needed in QJ proceedings is only substantial evidence, while in
trial courts, the quantum of evidence is preponderance of
evidence.
If we compare also the remedies available to the defeated
party before the trial court and the appellate courts (CA and
SC), the remedies available to the defeated party are
considerably lessened as he goes higher in the hierarchy.
MTC – Motion for reconsideration, Motion for new trial,
appeal
RTC – Motion for reconsideration, Motion for new trial,
appeal
CA – Motion for reconsideration, Motion for new trial but
only on the ground of NDE
SC–Motion for reconsideration
MOTION FOR NEW TRIAL BUT ONLY ON THE GROUND OF
NDE IN THE CA
Note: Under the Rules, it is not necessary for the appealing
party to wait for the case to be decided by the CA. Even if the
case has not yet been decided by the CA, the movant can
already file a motion for new trial based on NDE. This is not
possible if the case is in the MTC or even in the RTC acting in
its appellate jurisdiction. In the RTC, we have to wait for the
RTC to render a decision before we can file a motion for
reconsideration or new trial. With respect to the CA, we also
have to wait for the decision of the CA before we can move
for reconsideration. But when it comes to a new trial, we can
file a motion for new trial based on NDE even before the case
is decided by the CA. This is clearly spelled out in the Rules.
As long as the case is within the jurisdiction of the CA, even if
before the CA had made a decision on the case appealed, a
motion for new trial based only on NDE can be filed.
The SC is generally not a trier of facts. A Motion for new
trial will always involve a question of fact like NDE, and thus
will be dismissed by the SC. The availability of a motion for
new trial ends with the CA, but the availability thereof is
based only on the ground of NDE.
RULE 45 APPEAL BY CERTIORARI TO THE SC
In civil cases, this is the only mode used. We cannot use a
notice of appeal or a petition for review if the SC strictly
applies these rules on appeal. It does not mean to say that we
cannot go up to the SC b simply filing a notice of appeal or an
ordinary appeal. What the Rules prohibits is the filing of an
ordinary appeal to the SC, that is a notice of appeal if the case
is a civil case.
If the case is a criminal case, there could be notice of appeal
to the SC. It is applicable in case the penalty imposed is life
imprisonment or reclusion perpetua. The appeal from that
criminal case will be by notice of appeal not via a petition for
certiorari.
In a petition for review on certiorari filed in the CA, it is
axiomatic that only questions of law can be raised. Raising
questions of law with questions of fact before the SC does not
necessarily disallow the appeal. The Rules say that if the
issues raised in under Rule 45 are factual and legal, the SC has
the discretion to remand the case to the CA. When the SC
sends the case to the CA because the issues raised are both
factual and legal, the CA will have the duty now to review the
case and render its own decision.
But, the opposite does not apply, such as when the CA is the
appellate court. There is an appeal to the CA through ordinary
appeal, the court of origin is an RTC, the mode of appeal is an
ordinary appeal by filing a notice of appeal. It is in this mode
of appeal where the appellant is required to submit his brief
on appeal.
Brief on appeal – required only if the appeal is an ordinary
appeal, the trial court is an RTC and the appellate court is the
CA.
If the trial court is an MTC, and there is an appeal to the RTC,
and an appeal is made on the RTC exercising its original
jurisdiction, the mode of appeal is an ordinary appeal to the
CA via a notice of appeal.
During the pendency of that appeal, the CA will require
parties to submit their briefs. The Rules provide for the brief
of the appellant and the appellee. Failure of the appellant to
submit his brief on time will be enough reason for the CA to
dismiss the appeal. Even if he submits his brief on time, the
appeal will be dismissed if the essentials of the brief are not
complied with.
SEC. 7. Appellant’s brief.—It shall be the duty of
the appellant to file with the court, within forty-
five (45) days from receipt of the notice of the
clerk that all the evidence, oral and
documentary, are attached to the record, seven
(7) copies of his legibly typewritten,
mimeographed or printed brief, with proof of
service of two (2) copies thereof upon the
appellee.
SEC. 8. Appellee’s brief—Within forty-five (45)
days from receipt of the appellant’s brief, the
appellee shall file with the court seven (7) copies
of his legibly typewritten, mimeographed or
printed brief, with proof of service of two (2)
copies thereof upon the appellant.
SEC. 13. Contents of appellant’s brief.—The
appellant’s brief shall contain, in the order herein
indicated, the following:
(a) A subject index of the matter in the
brief with a digest of the arguments and
page references, and a table of cases
alphabetically arranged, textbooks and
statutes cited with references to the
pages where they are cited;
(b) An assignment of errors intended to be
urged, which errors shall be separately,
distinctly and concisely stated without
repetition and numbered consecutively;
(c) Under the heading “Statement of the
Case,” a clear and concise statement of
the nature of the action, a summary of
the proceedings, the appealed rulings and
orders of the court, the nature of the
judgment and any other matters
necessary to an understanding of the
nature of the controversy, with page
references to the record;
(d) Under the heading “Statement of
Facts,” a clear and concise statement in a
narrative form of the facts admitted by
both parties and of those in controversy,
together with the substance of the proof
relating thereto in sufficient detail to
make it clearly intelligible, with page
references to the record;
(e) A clear and concise statement of the
issues of fact or law to be submitted to
the court for its judgment;
(f) Under the heading “Argument,” the
appellant’s arguments on each assignment
of error with page references to the
record. The authorities relied upon shall
be cited by the page of the report at
which the case begins and the page of the
report on which the citation is found:
(g) Under the heading “Relief,” a
specification of the order or judgment
which the appellant seeks; and
(h) In cases not brought up by record on
appeal, the appellant’s brief shall contain,
as an appendix, a copy of the judgment or
final order appealed from.
SEC. 14. Contents of appellee’s brief.—The
appellee’s brief shall contain, in the order herein
indicated, the following:
(a) A subject index of the matter in the
brief with a digest of the arguments and
page references, and a table of cases
 alphabetically arranged, textbooks and
statutes cited with references to the
pages where they are cited;
(b) Under the heading “Statement of
Facts,” the appellee shall state that he
accepts the statement of facts in the
appellant’s brief, or under the heading
“Counter-Statement of Facts,” he shall
point out such insufficiencies or
inaccuracies as he believes exist in the
appellant’s statement of facts with
references to the pages of the record in
support thereof, but without repetition of
matters in the appellant’s statement of
facts; and
(c) Under the heading “Argument,” the
appellee shall set forth his arguments in
the case on each assignment of error with
page references to the record. The
authorities relied on shall be cited by the
page of the report at which the case
begins and the page of the report on
which the citation is found.
Appellants brief – contents – divided into several chapters;
lack of assignment of errors is fatal and will result in
dismissal of the appeal.
Why is the CA very much interested in the assignment of
errors that must be contained in the brief, without which
the appeal will have to be dismissed?
The assignment of errors is essential in an ordinary appeal
because insofar as the CA is concerned, the decision of the
trial court is a correct decision. Remember that in our Rules of
Evidence, there is a presumption that a decision of a trial
court is correct; there is a presumption of regularity in the
performance of official duties. The CA will always apply that
disputable presumption whenever there is an appeal in the CA.
That same attitude is also adopted by the SC. Whenever an
appeal under Rule 45 is raised to the SC, the SC adopts the
disputable presumption that the decision of the CA is correct.
Since the CA adopts the presumption that the RTC decided on
the case correctly, the appellant must destroy or overwhelm
that presumption by convincing the CA that serious errors
were committed by the RTC. The appellant cannot be allowed
to present evidence thereon, appellant will have to rely on the
records submitted from the RTC. The only way by which
appellant can possibly convince that the RTC committed
serious errors is through the assignment of errors. If the
appellant cannot make an assignment of errors in the brief, it
means the appellant finds nothing wrong with the decision of
the RTC. Therefore, the disputable presumption stays, and
this will be used by the CA. That is why the assignment of
errors is essential to the brief of the appellant. Absence
thereof is fatal to the appeal, and will cause the appeal’s
dismissal.
Distinguish a brief from a memorandum.
A:
Brief Memorandum
 Ordinary appeals
Filed within 45 days
Contents specified by rules
Certiorari, prohibition,
mandamus, quo warranto
and habeas corpus cases
Filed within 30 days
Shorter, briefer, only one
issue involved – No subject
index or assignment of
errors, just facts and law
applicable
the issue raised in the assignment of errors of the appellant.
This rule applies to a civil case only.
In a criminal case, if there is an error committed by the trial
court, whether mentioned or not in the assignment of errors,
the CA or SC can take cognizance of such errors in resolving
the appeal. The appellate courts are very flexible in a criminal
case whose decision from the trial court was brought before it
on appeal.

GR: Only errors assigned in the brief may be considered on

Can the appellant assign as the only error in the brief
that the RTC committed an error in deciding the case
against the appellant?
That is not an assignment of error that is expected by the CA.
Assignment of errors should specify particular acts done by
the RTC which could have affected his substantial rights.
Harmless Errors in Appeal (Section 6, Rule 51)
The trial court must have committed errors in the
proceedings; it is expressly provided in Rule 51 that only errors
of the court in admission of evidence and issuance of orders
that affects substantially the rights of the appellant could be
considered by the appellate court. Otherwise, the court will
disregard that error, even if made a part of the assignment of
errors.
In civil cases brought on appeal, the appellate court will resolve
only issues raised in the assignment of errors. No other issue,
generally, will be resolved by the court. The only exception is
if the issue not raised in the assignment is closely related to
appeal
XPNs:
1. Grounds not assigned as errors but affecting the
jurisdiction over the subject matter
2. Matters not assigned as errors on appeal but are
evidently plain or clerical errors within the
contemplation of law;
3. Matters not assigned as errors on appeal but
consideration of which is necessary in arriving at a
just decision and complete resolution of the case
or to serve the interest of justice or to avoid
dispensing piecemeal justice;
4. Matters not specifically assigned as errors on appeal
but raised in the trial court and are matters of
record having some bearing on the issue submitted
which the parties failed to raise or which the lower
court ignored;
5. Matters not assigned as errors on appeal but closely
related to an error assigned; and
 6. Matters not assigned as errors on appeal but upon (b) When the inference made is manifestly
which the determination of a question properly mistaken, absurd or impossible;
assigned is dependent. (Riano, Civil Procedure: A (c) When there is grave abuse of discretion;
Restatement for the Bar, pp. 445-446, 2009 ed.) (d) When the judgment is based on
misapprehension of facts;
What is the purpose of an appellant’s / appellee’s brief? (e) When the findings of facts are conflicting;
A: To present to the court in a concise form the points and (f) When in making its findings, the CA went
question in controversy, and by fair argument on the facts beyond the issues of the case, or its findings are
and law of the case, to assist the court in arriving at a just and contrary to the admissions of both the appellant
proper conclusion/ decision (De Liano v. CA (2006)). and the appellee;
(g) When the findings are contrary to the trial
If it is the appellant case who does not submit his brief, the court;
appeal is dismissed. If it is the appellee who does not submit (h) When the findings are conclusions without
his brief, then the court will simply decide the appeal without citation of specific evidence on which they are
a brief coming from the appellee. The appellee can choose not based;
to submit a brief. It is the brief of the appellant whose (i) When the facts set forth in the petition as well
submission or non-submission could lead to the dismissal of as in the petitioner‘s main and reply briefs are not
the appeal. disputed by the respondent;
(j) When the findings of fact are premised on the
Although Rule 45 is explicitly saying that only questions of law supposed absence of evidence and contradicted by
could be raised in a petition on certiorari, The SC has the evidence on record; and
recognized a number of exceptions. (k) When the Court of Appeals manifestly
overlooked certain relevant facts not disputed by
Exceptional issues where the SC allowed the appeal the parties, which, if properly considered, could
whereas factual issues were raised (see Rule 45). justify a different conclusion.
(MEMORIZE at least 5)
Exceptions in which factual issues may be resolved by The following cases allow factual issues to be raised
the Supreme Court: based on SC Circulars:
(a) When the findings are grounded entirely on 1. Kalikasan cases
speculation, surmises or conjectures; 2. Amparo
3. Habeas Data
Both factual and legal questions can be raised under Rule
45 in these three situations.
SATISFACTION OF JUDGMENT (RULE 39) SATISFACTION OF
A FINAL AND EXECUTORY JUDGMENT.
Rule 39 has been described in jurisprudence as the one that
gives life to the law. It does so in the sense that the winning
party will be able to recover the award given in his favor
through the use of Rule 39. So if the civil case is the recovery
of money, and the court awards 2M to the prevailing party,
the said party will not be satisfied until he sees the 2M given
to him.
It is not correct to assume that in order to satisfy a judgment,
we should always make use of Rule 39. Satisfaction of
judgment as conceived in Rule 39 is a forcible satisfaction of
judgment. So if the award in favor the judgment creditor is
for the payment of the judgment debtor of 2M, the judgment
creditor does not even have to think about Rule 39 if the
judgment debtor immediately pays the award of 2M. It is only
in that situation where the judgment debtor refuses to pay
that the only remedy of the judgment creditor to enforce
payment is to make use of Rule 39, to force the debtor to pay
by levying his properties and by selling his levied properties by
public auction.
In the ordinary course of things, if there is an appeal from the
decision rendered by the trial court, and the case has reached
the SC, even if the decision of the trial court has been
affirmed, and the said decision of the SC has been entered, it
is not correct for the prevailing party to ask for execution
from the SC. The matter of execution is a duty of the court
of origin, not the appellate court. If the court of origin is the
MTC, it is the duty of the MTC to enforce the satisfaction of
the judgment. So that, there is an indirect rule between the
forcible execution of judgments by the MTC even if the case
has been decided by higher courts. This is because higher
courts do not usually issue an order for execution of
judgment. What a lawyer for the judgment creditor should do
is to wait for the records to be returned from the SC or CA to
the court of origin. It could take time for the records to be
returned to the court of origin. So, if a motion for execution
was filed by the judgment creditor in the court of origin
before the records are returned, there is likelihood that the
court of origin will tell him they have not yet received the
records so they cannot act on the motion until the records
reach the court of origin. Although, the issuance of an order
granting the motion for execution is a ministerial duty of the
court. Rule 39 has provided for a remedy in this situation. The
appellate court will simply issue a certified true copy of the
entry of judgment. That certified true copy will be submitted
to the court of origin in order to be a basis of the granting of
the order of a motion for execution. That is enough proof that
there really is a final and executory decision.
Is there a need for the judgment creditor to file a motion
for execution, or will the issuance of a writ of execution
come as a matter of course?
There is always a need to file a motion for execution. If the
judgment creditor has not filed a motion for execution, the
court has no business to issue a writ of execution, because
the court will not know whether there was voluntary
satisfaction of judgment.
Since the judgment has become final and executory and it has
now become a ministerial duty of the court of origin to issue a
writ of execution, then the motion for execution will be heard
ex parte, without notice to the judgment debtor. This issue
has been the subject of conflicting decisions by the SC. The
latest jurisprudence said that a motion for execution of a
judgment that has become final and executory can be heard
ex parte by the trial court. But the other decisions are to the
effect that the judgment debtor should also be given a copy
of the motion for execution, because the judgment debtor will
have grounds to oppose the issuance of the writ of for
execution. In the old doctrine, a copy of the motion for
execution should be furnished upon the judgment debtor, but
the motion cannot be heard ex parte.
Within the Rules, there is a period fixed within which the
court can grant a motion for execution as a ministerial duty. It
is 5 years from the entry of judgment. After the 5 years from
entry, there can be revival of judgment, no longer a motion,
as this is an independent action to revive the judgment. But,
the independent action to revive judgment must be filed
within the second 5-year period after the entry of judgment.
The Rules assume that the prescription period for the
execution of a judgment is the 10-year period. Is this a
correct assumption?
This is correct, as this is also provided under the NCC. A
prescriptive period of a final and executory judgment is really
1 years under the NCC.
But what Rule 39 has provided was to divide the 10 years into
two parts : the first five years, and the second five years.
Meaning, the first five years, we can execute the judgment
via a motion for execution. After the lapse of the first five
year period, the judgment creditor cannot file a motion for
execution. If he does so, the court will deny the motion as the
court will no longer have the authority to grant the motion of
execution. The second 5-year period is designed to force the
judgment creditor to file a separate independent action to
revive the judgment. So the motion for execution should be
filed within the first five years of the 10-year period.
Is the first 5-year period strictly implemented by the
rules?
It is not. It can be extended according to the Rules. The SC
has decided that if the institution of the judgment within the
first five years is delayed, and the delays are equitable or are
attributable solely to the conduct of the judgment debtor,
then the 5-year period will be correspondingly be extended,
that is equal the delay caused by the conduct of the judgment
debtor.
Let’s say that the judgment creditor filed a motion for
execution of the judgment on the 3rd year of the first 5-year
period. The court of origin is an RTC. The judgment debtor
received a copy of the motion. After receiving the copy of the
motion, the judgment debtor files a petition for the
annulment of judgment before the CA under Rule 47 with
prayer for a preliminary injunction. And the CA grants the
preliminary injunction. Because of the preliminary injunction
issued by the CA, we cannot expect the RTC to order the
execution of the judgment. It took the CA 2 years to decide
upon the petition of the judgment debtor. At the end, the CA
orders the dismissal of the petition for annulment of
judgment. There is a delay of 2 years. If the 5[-year period
has already lapsed due to the delay, another 2 years will be
added, the 5-year period will be automatically extended up to
7 years within which the judgment can be executed through
the filing of a motion for execution of judgment. That is how
the SC described how the first 5-year period and the second
5-year period should be interpreted. It is not a fixed period, it
could be extended due to circumstances that might arise in
the case there is a delay arising from the conduct of the
judgment debtor.
It simply means that the judgment debtor can legally delay
the execution of the final judgment. In fact, he is even given
2 remedies under the Rules to prevent the execution of a final
judgment. Rule 38 is one means of delaying the execution of
judgment. In Rule 38, the court that decided the case can
issue an injunction against the enforcement of the judgment.
Rule 47 is another remedy for the judgment debtor, as long as
in the petition for the annulment of judgment, there is a
corresponding preliminary injunction that is issued by the
higher court. In annulment of judgment, the court that will try
the case will always be a higher court. Thus, if the higher
court hearing the petition issues an order to stop the
execution of the judgment (preliminary injunction), there is
no way for the court of origin to disobey such order.
If the motion for execution is granted, which is
expected, as the judgment has become final and
executory, can the judgment debtor file an appeal
against the order granting the motion for execution?
No. Under Section 1 Rule 41, an order granting motion for
execution is not appealable. Also, the order will be treated as a
final order. The remedy is to file a petition under Rule 65, a
petition for prohibition.
Supposed the trial court denies a motion for execution of
judgment that has already been entered, is appeal the
remedy of a judgment creditor?
No, it does not seem so, based also under Section 1 Rule 41.
The creditor should also resort to Rule 65. The petition that he
should file is a petition for mandamus. Mandamus is proper as
there is a ministerial duty for the court to perform. Under
Rule 39, as long as the judgment has been entered, it has
become a ministerial duty of the court to grant a motion for
execution. That is an act that can be compelled by a writ of
mandamus.
Can the trial court promptly deny a motion for execution
of a judgment that has been entered, or can the trial
court rightly quash the writ of execution it has issued
because the judgment has become final and executory?
The general rule is that the trial court cannot quash or rightly
deny a motion for execution if the judgment has already been
entered. But, there are certain exceptions that the SC has
recognized.
First is if the judgment sought to be enforced has already
been novated.
The judgment has become dormant. This means that the
execution of the final judgment cannot be granted via a
motion for execution. Judgment creditor must avail of the
independent action of revival of judgment to revive a dormant
judgment.
The second is when the parties enter into a compromise
agreement after the judgment has become final and
executory. If there is a compromise agreement signed by both
parties whose terms are not consistent with the award given,
the effect being that the award will be novating the judgment.
The court will no longer grant a motion for execution of the
judgment of the award that has been given in the dispositive
portion of the duly entered judgment. The agreement of the
parties can change the terms of the dispositive portion of the
judgment. This is an application of novation being a mode of
extinguishment of an obligation under the NCC.
Q: Is a writ of execution subject to a motion to quash?
A: A writ of execution may be quashed on certain grounds:
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;
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).
Suppose within the first 5-year period, the court grants
a motion for execution, and then issues a writ of
execution. The writ of execution is carried out by virtue
of a levy on execution of the properties of the judgment
debtor. But the properties levied upon were not sold
during the first 5-year period. On the 6th year, can the
properties levied upon be sold at public auction?
Yes. According to the SC, the 1st 5-year period does not
require that the execution of the judgment, the actual levy
and the sale of the property on public auction must be done
within the first 5 years. What is important is that within the
first 5 years, there must be an actual levy of the properties of
the judgment debtor, even if the auction sale was conducted
in the 6th year. Levy is the actual act of carrying out the
judgment.
In another case, in year 7 of the 10-year period, the judgment
creditor who neglected to file a motion for execution filed a
motion for execution in year 7. When the judgment creditor
served a copy of the motion to the judgment debtor, the
judgment creditor convinced the judgment debtor not to
oppose the granting the motion. The judgment debtor,
accommodating the judgment creditor, even filed his position
paper stating that he is not objecting to the granting of the
motion of execution. Due to such manifestation by the
judgment debtor, although it was already year 7, the court
granted the motion for execution. The writ was issued, and
the properties of the judgment debtor were levied upon. It
was at this point that the judgment debtor challenged the
validity of the levying of his properties by way of a motion for
execution beyond the first 5-year period. The SC sustained
the stand of the judgment debtor. The SC said that after the
first 5-year period, the court loses jurisdiction to execute the
judgment through a mere motion. The fact that the judgment
debtor did not oppose the said motion does not matter
because the issue now is one of jurisdiction. Jurisdiction will
not be vested upon the court simply by inaction on the part of
a party. Thus, the proceedings taken by the court in granting
the motion for execution beyond the first 5-year period was
held to be irregular, it will be void. The issuance of the writ of
execution will also be void, and therefore the writ can be
quashed for lack of jurisdiction.
With respect to the revival mentioned in the Rules
pertaining to the 2nd 5-year period, this is an
independent action. Since this is an independent action,
if the original action was a real action, but this is now
simply a revival, can we still consider the revival action
still as a real action?
The SC held yes. If the original action is a real action, the
action to revive that judgment will also be a real action. And
therefore, the venue in Rule 4 will still be followed. In Rule 4,
the venue will be determined by the place where the property
is located. Thus, the revival of action will be field in the court
having jurisdiction over the place where the property is
situated. The case will be cognizable by the RTC because it is
incapable of pecuniary estimation.
REVIVAL OF JUDGMENT UNDER RULE 39
There is another revival of judgment, this time under Section
34 Rule 39.
SEC. 34. Recovery of price if sale not
effective; revival of judgment.—If the
purchaser of real property sold on execution, or
his successor in interest, fails to recover the
possession thereof, or is evicted therefrom, in
consequence of irregularities in the proceedings
concerning the sale, or because the judgment
has been reserved or set aside, or because the
property sold was exempt from execution, or
because a third person has vindicated his claim,
to the property, he may on motion in the
same action or in a separate action recover
from the judgment obligee the price paid,
with interest, or so much thereof as has not
been delivered to the judgment obligor; or he
may, on motion, have the original judgment
revived in his name for the whole price with
interest, or so much thereof as has been
delivered to the judgment obligor. The
judgment so revived shall have the same
force and effect as an original judgment
would have as of the date of the revival and
no more.
The revival of judgment in Section 34 Rule 39 is not the revival
of a dormant judgment, but refers to a judgment already
executed.
The situation contemplated in Section 34 Rule 39 is that
judgment is executed, properties are levied upon, and these
properties have been sold at public auction, but the highest
bidder, or anybody who thereafter acquire the property, is
not able to get possession of the property because of
opposition or legal complications that are related to the
execution of judgment. According to Section 34, the revival of
judgment could be had through a motion or through an
independent action. Thus, there is a difference between a
revival of judgment under Section 34 Rule 39 where it is a
revival of a judgment already executed via a motion or via an
independent action, and the revival of a dormant judgment
where there has been no execution within the first 5-year
period prescriptive period of a judgment under Section 6 Rule
39.
Take note of the differences between the two kinds of revival
of judgments in Rule 39, under Section 6 and Section 34.
The improvement given by Rule 39 under the 1997 Rules,
insofar as the judgment creditor is concerned, is that under
the present Rules, the writ of execution issued by the court
has a life of 5 years. So, the judgment creditor does not need
to file one motion for execution after another, which was the
prior practice when the life of the writ of execution was 60
days. At any time during that 5-year period, the sheriff could
enforce the writ, he may make levy the properties of the
judgment debtor. The only limitation imposed by the Rules is
that the sheriff must file periodic reports to the court as to
the progress of the process of execution.
How does the court enforce a duly entered judgment?
Through the granting of a motion for execution and through
the issuance of a writ of execution. It all depends on the tenor
of the judgment. If the judgment awards money, there will be
a levy of properties. If the award involves delivery of
properties or documents, there will be no levy on execution of
properties, the property to be delivered will just be seized
from the judgment debtor, and there is a delivery of
possession to the judgment creditor.
If the judgment directs the judgment debtor to sign a deed of
conveyance or a deed of sale in favor of the judgment
creditor, and the judgment debtor refuses, the court can
appoint another person, usually the clerk of court, to sign the
document on behalf of the judgment debtor. That document
cannot be considered a spurious document, but one that is
signed effectively by the judgment debtor following a lawful
order of the court.
If the judgment directs the judgment debtor to vacate a piece
of land or building, the court, through the sheriff, will forcibly
oust him from the building. The court will throw out the
things belonging to the occupants.
In a writ of execution, the writ will be directed to the sheriff.
But the writ will contain verbatim the dispositive portion of
the decision. The writ of execution directs the sheriff to carry
out the duty of executing the dispositive portion of the
judgment of execution.
Can the court cite a judgment debtor for refusing to
obey a lawful order of the court in compliance with the
judgment to be executed?
No. Citation for contempt is generally not a remedy in
enforcing a judgment in Rule 39. This is because Rule 39
contemplates enforcement of a judgment by the sheriff of
the court making use of the processes in Rule 39. So if the
judgment debtor refuses to obey, a court cannot go to
another court to cite the judgment debtor in contempt. That
is not contempt of court. This is because, according to the SC,
the writ is not addressed to the judgment debtor. The writ is
addressed to the sheriff of the court, and hence the sheriff
has the duty to carry out the dispositive portion of the
judgment.
Can there be contempt in collection of money cases by
way of exception?
Generally, no, but it can be had in support cases. Failure to
give support can result with the disobeying person being cited
in contempt, as well as being subjected to a criminal case for
failure to give support.
Generally, a judgment debtor who refuses to obey the writ of
execution cannot be cited in contempt. There are other more
effective remedies under Rule 39 in order to carry out the
possible satisfaction of the judgment. The more effective
remedy under Rule 39 is to levy the properties of the
judgment debtor, seizure thereof and sell them at public
auction.
Levy of properties under Rule 39 does not automatically mean
that possession of the levied properties will be in the hands of
the sheriff or the court. If properties of the judgment debtor
that are levied upon are real properties, the judgment debtor
will have continued possession thereof, he will not be ousted.
The court will simply submit a copy of the levy of execution to
the RoD and ask the RoD to annotate the fact that the real
property is subject to a lien via a levy on execution. What is
important to know in the levy of real properties is that the
judgment debtor will not be ousted from his physical
possession of the real property. He will continue to be in
possession of the real property although it is already subject
of a levy.
But when the property levied upon is personal property, that
is, where the physical possession of the property will be
turned over to the sheriff. In fact, the properties will literally
be placed in custodia legis.
What happens after the levy is implemented by the
court?
Levy of properties under Rule 39 should always be followed by
sale by public auction. We will not have an execution if we
stop at levying of properties. The levy must always be
accompanied by a sale by auction. If there is only a levy
without a sale by auction, then that levy can be nullified by
the court. It is the duty of the court to see to it that an actual
levy of properties should be followed by a public auction sale.
Under Rule 39 and under certain special laws, there are certain
properties of a judgment debtor that is exempt from levy. If
the property of the debtor that is exempt from execution is
levied upon, the levy is void, nor the sale of such levied items
be valid. If the levy is void, the sale thereof is also be void.
The validity of an auction sale shall always stem from the
validity of a prior levy. Even if there is valid levy, but if there
are requirements not complied with before, during or after
auction sale, the sale will be void, and the buyer will not
acquire title to the property sold.
THIRD PARTY CLAIM ON PROPERTY LEVIED UPON FOR
PURPOSE OF EXECUTION
The principles in Rule 39 and Rule 16 are practically identical.
Terceria is predicated on the premise that the property levied
upon by the sheriff for the purpose of executing of the duly
entered judgment does not belong to the judgment debtor.
(Terceria is a 3rd party claim filed with the sheriff.) If the
property levied upon belongs to another person, the levy is
not valid. The levy not being valid, the sale is not valid. Rule 39
expects that the property levied upon by the sheriff belongs
to a judgment debtor, because Rule 39 is for the satisfaction
of a judgment against a judgment debtor. If the sheriff makes
a levy on properties which do not belong to the judgment
debtor, you can expect the true owner to complain. Such
owner can file a complaint for the recovery of the real
property from the sheriff. The filing of such complaint of the
owner is just one of the several remedies which the owner can
avail of. In Rule 39, the remedy refers to the filing of a 3rd
party claim (Terceria).
The other remedies which are expressly acknowledged in
Section 16 Rule 39.
What are the remedies available to a third-party claimant
in levy of real property?
A:
1. Summary hearing before the court which authorized the
execution;
2. Terceria or third party claim filed with the sheriff;
3. Action for damages on the bond posted by judgment
creditors; or
4. Independent reinvindicatory action. (Sec. 16, Rule 39)
The remedies are cumulative and may be resorted to by the
third party claimant independently of or separately from the
others.
Note: The officer shall not be liable for damages for the
taking or keeping of the property, to any third-party claimant
if there is a bond filed by the winning party. If there is no
bond, the sale cannot proceed. However, the judgment obligee
can claim damages against a third-party claimant who filed a
frivolous or plainly spurious claim, and such judgment obligee
can institute proceedings therefor in the same or separate
action (Sec. 16, Rule 39).
Replevin – remedy of the true owner of the personal property
if it was improperly levied and sold
If the property is a real property, the true owner/3rd party
claimant can file an independent action to prevent the sheriff
from selling the property.
The 3rd party claimant, under Section 16 Rule 39, can make
use of these remedies successively. Thus, if he was
unsuccessful in recovering the property under one remedy, he
can make use of the other remedies.

The easiest and most practical remedy available right away to
the 3rd party claimant is a Third Party Claim. It does not
require the filing of a complaint, just the submission of an
affidavit to the sheriff and to the court, setting forth his
ownership and entitlement to the possession, and that the
property should not be levied upon as this is not a property of
the judgment debtor. Evidence appurtenant thereto must be
attached.
Can the court render a judgment that will tell the sheriff
that the property is not the third party claimant’s but
that of the judgment debtor?
No. The third party claim is an incident to the execution
process, the trial proceedings are over insofar the court is
concerned. The court has no power to resolve an issue of
ownership involving the property levied upon. It should be
threshed out in a separate complaint. Regardless of a finding
by the execution court that the true owner is the judgment
debtor, that will have no bearing on the third party claimant.
That order will not be entered, it will not be considered a
judgment on the merits and will not constitute res judicata
insofar as a 3rd party claimant. If at all, the consequence of
the finding of the court is that the sheriff can go ahead with
the sale of the property.
If the sheriff schedules the sale, can third party file an
independent action to stop the sale of real property?
Yes, he can file the complaint in another court, RTC, for
injunction with claims for damages, if any.
If property levied upon is a personal property of a 3rd
party claimant, can 3rd party file complaint for replevin?
Yes. The claimant must implead the sheriff and the judgment
creditor (prevailing party).
If the executing court is an RTC, and 3rd party claimant
files a case for replevin, can he file it in the MTC?
Yes, as replevin is cognizable by the MTC depending upon the
value of the thing subject to the auction sale.
Is this interference with the other court? Can the sheriff
in the other court claim that the seizure is interfering
with the proceedings of the other court?
No. The sheriff of the MTC can seize the personal property
from the sheriff of the other court.
Cannot the sheriff of the MTC capitalize on the
provisions of Rule 60 on replevin that the writ of replevin
cannot be enforced when the property is subject to
attachment?
If you go to Rule 60, it is really a requisite in the issuance of a
writ of replevin. The issuing court can issue a writ of replevin
validly if the property to be seized is not under custodia legis,
not under a levy of execution or attachment. If the property
is subject of a levy on execution, it is under custodia legis.
But notwithstanding that provision in Rule 60, the SC said
that a writ of replevin issued by the MTC will prevail over the
levy on execution writ by the sheriff, because the writ of
execution by the sheriff is void. What is required under
Rule 60 to is that a property should be under custodia
legis to prevent enforcement of a writ of replevin, it
assumes that there was a prior VALID LEVY ON
EXECUTION. For a property to be validly levied upon, the
property must be owned by the judgment debtor. Otherwise,
the levy is void. Therefore, the property can be the subject of
a seizure by another sheriff in compliance with a writ of
replevin issued by another court, even if it is an MTC. It is
proper for the MTC to issue a writ of preliminary mandatory
injunction directed against the sheriff to prevent the sheriff
from going ahead with the sale.
In Rule 39, if the property of judgment debtor has been
subjected to levy on execution, can it be subjected to
another levy on execution?
Yes. If there are several cases where the property is subject
to levy, it is possible the same property can be subject to levy
on execution. The debtor remains to be the owner of the land,
and the levy creates a lien only over the property. The first
levy annotated on the title of the property shall be superior to
the subsequent levies following the principle of seniority. The
SC has held that if the property is the subject of different
levies, and the judgment debtor sells the property, the sale is
valid, as the judgment debtor is still the owner of the
property at the time of the sale. But the buyer must respect
the annotations of levies in the title as to the liens imposed.
So, if the property is sold at public auction sale later on in
execution of the first judgment, the person who bought it
from the judgment debtor stands to lose the property. Buyer
is not considered a buyer in good faith due to the said
annotation of the levies in the title.
If the property was mortgaged to a bank that is still
existing, can the sheriff subsequently levy the property?
Yes, as the levy will not affect the ownership of the property
by the judgment debtor. It only creates a lien. He loses
ownership if there was a public auction sale thereon. But
ownership shall not immediately be lost, so long as judgment
debtor still has the right of redemption.
If in cases where there are two different levies over the same
piece of land of the judgment debtor, usually, the property
will be sold as a result of the first levy of the property. If the
property is later on sold at public auction, and as the law gives
to the judgment the right of redemption, this right of
redemption will also be enjoyed by the buyer. Rule 39 in
defining the redemptioner names a judgment debtor, his
successors in interest or any creditor who holds another levy
or lien subsequent to that of the levying creditor who has
caused the sale of the property.
The right of the first levy holder to redeem is distinct right
from the 2nd levy holder to redeem the property. If it is the
2nd holder who redeems the property, there could be another
redemption by the first judgment debtor. Under Rule 39,
when it is the judgment debtor who redeems the property
from the highest bidder, other rights of redemption are cut
off by virtue of the redemption by the judgment debtor. So
we can speak of successive redemptions only if the
redemptioner is not the judgment debtor himself. If the one
who redeems the property is another lien holder, we can apply
the rule of successive redemption which says that another
redemption can be had within 60 days from the efficacy of
the first redemption, even if the 1-year period for redemption
has already expired.
For example, there are 3 redemptioners, one being the
judgment debtor. If the redemption is carried out by the
judgment debtor, the rights of redemption of the other 2 are
cut off. Redemption for all of them is 1 year from the
registration of the sale in the certificate of title. So we have
to assume that a redemption made should be within 1 year of
the registration of the certificate of sale in the certificate of
title. If the 2nd levy holder redeems the property, then the
3rd levy holder can also further redeem the property within 60
days of the last redemption. But within the 1-year period, the
judgment debtor can redeem the property, who upon his
exercise of his right of redemption, the rights of the others
to redeem will be cut off.
Will this not cause prejudice to the other levy holders if
we cut off the right to redemption?
No, it will not. The levy holders will simply enforce their levy
since the property in the hands of the judgment debtor. They
can have another public auction sale of that levied property.
In civil law, as well as in Rule 39, the SC has accepted the
principle that whenever there is a doubt in the interpretation
of redemption rules and laws, the interpretation should always
be in favor of the redemptioner, the judgment debtor.
Rule 39 is also very clear in saying that right of redemption
will exist only when the property sold at public auction is
a real property. When the property levied upon and sold at
public auction is a personal property, there is no right of
redemption.
SC has come up with these principles that are applicable to
redemption of real property and principles applicable
because there is no redemption allowed in personal
property:
1.Personal property is sold in auction, and the price
generated is inequitably low, the sale is void. The highest
bidder does not acquire ownership of the property. The court
will issue an order declaring the sale as ineffectual. Sheriff
must schedule another auction sale until the price generated
is not inequitably low.
2.Real property is sold at public auction, it does not
matter as to price even if inequitably low, the sale will be
valid. The low price will not render the sale void because of
the existence of the right to redeem by the judgment
debtor. If the price is very low, that is advantageous to the
judgment debtor, because if he decides to redeem the
property, he need only to match the auction sale price.
Due to the above principle, there could arise a situation
where the levy and public auction sale of a real property
would result that the price generated will be
insufficient to pay the lien of the judgment creditor.
Let us say that the judgment creditor has a lien of
1M, and a piece of land owned by the judgment
debtor was sold at public auction, but generated
only 500K. It is not enough to pay in full the award
given to the judgment creditor. The 500k will go to
the judgment creditor, but there is still a residue
of 500k. When the judgment debtor redeems the
property, should he deliver to the sheriff 500k or
1M?
The judgment debtor should deliver only 500k. He need
not deliver 1M because the price paid by the highest
bidder was only 500k.
So, if the judgment debtor was able to redeem the
property by producing 500k, but the judgment
creditor was not yet fully paid, the judgment
creditor will be tempted to have another levy on
the property. The judgment creditor could really
entertain that idea because he has not yet been
fully paid. In Rule 39, there must be full
satisfaction of the award to put an end to the
litigation. If the judgment creditor decides to have
another levy on the same property previously
levied upon, but the property had been redeemed
by the judgment debtor, can the same levying
creditor carry out another levy on the same
property?
SC held that in this situation, the same levying creditor
cannot impose another levy on the same property. If
the levying creditor wants to have full satisfaction of
his lien, he should make another lien on another
property owned by the judgment debtor. Or, he could
avail of the other remedies provided for in Rule 39 if he
cannot get full satisfaction of the judgment.
3. If there is still a residue on the lien of the judgment
creditor, he can levy other properties owned by the judgment
debtor, but the judgment creditor cannot levy the same
property that the judgment debtor has redeemed. This
principle does not prevent other creditors from levying the
property that was already redeemed.
With respect to the issue as to who is entitled to the fruits
earned during the pendency of the levy and during the 1-year
period of redemption, Rule 39 settled that issue. The fruits
of the property sold at public auction during the period
of redemption shall redound to the benefit of the
judgment debtor when the redemption period is still
running. The basis is that the judgment debtor retains
ownership of the property while the period of
redemption is still running. If the judgment debtor is unable
to redeem the property within the period of redemption, then
the title will be consolidated in favor of the highest bidder.
Q: What are the rights of a judgment debtor during the
period of redemption?
A:
1. To remain in possession of the property until the
expiration of period of redemption;
2. To collect rents and profits until the expiration of
period of redemption (Sec. 32);
3. To use the property in the same manner it was
previously used;
4. To make necessary repairs; and
5. Use it in the ordinary course of husbandry (Sec. 31).

In the auction sale, anybody can bid, even the judgment
creditor. It is usually the judgment creditor who will be
offering the highest bid because the judgment creditor can
give an amount equivalent to the award given by the court. If
the award given by the court is 1M, then the judgment
creditor can give an amount as high as 1M. He need not turn
over any cash to the sheriff, because he will just tell the
sheriff that he will consider the 1M lien as fulfillment of his
claim. Whereas if a stranger is the highest bidder, this
stranger is expected to give the 1M to the sheriff.
Can the judgment creditor be forced to shell out the
equivalent of the highest bid even if the highest bid is
exactly equivalent to the amount of his claim?
Generally, no. But if there is a 3rd party claim, a terceria, and
the highest bid was that of the judgment creditor, the
judgment creditor must still shell out cash in order to be
treated by the sheriff and the court as the highest bidder.
If the judgment creditor is not fully paid, there are other
options given in the rules in order to fully satisfy the claim:
1. File a motion in the court for an examination of the
judgment debtor.
2. File a motion in the executing court for the examination of
a debtor of the judgment debtor.
3. File a motion for the appointment of a receiver for the
remaining properties of the judgment debtor.
A receiver is one of the provisional remedies in the RoC.
Receivership is allowed by the court, although the case has
already been terminated, being already in the execution stage
of the judgment. This is one instance where a provisional
remedy can be used even after a case has been decided by the
court. The usual concept of a provisional remedy is that they
are availed of during the pendency of the case, before entry
of judgment. But in the case of receivership, this remedy can
be availed of under Rule 39 even if the case has already been
decided, the judgment has been entered and is now subject to
execution.
THE PRINCIPLE OF RES JUDICATA
Res judicata under Section 39 consists of 2 sections, Sections
47 and 48.
Section 47 is concerned with the effect of local judgment
after it is entered, and Section 48 is the effect of a foreign
judgments.
In our study of res judicata, there are 3 essential elements:
1. identity of parties
2. identity of causes of action
3. identity of subject matter
The effect of res judicata under section 47 depends upon the
nature of the action:
Judgment in rem –(letter a of Section 47)
Judgment in personam –(letter b Section 47)
Conclusiveness of judgment – (letter c Section 47)
Rule 39SEC. 47. Effect of judgments or final
orders .—The effect of a judgment or final order
rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final
order, may be as follows:
(a) In case of a judgment or final order
against a specific thing, or in respect to the
probate of a will, or the administration of the
estate of a deceased person, or in respect to the
personal, political, or legal condition or status of
a particular person or his relationship to another,
the judgment or final order is conclusive upon
the title to the thing, the will or
administration, or the condition, status or
relationship of the person; however, the
probate of a will or granting of letters of
administration shall only be prima facie
evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final
order is, with respect to the matter directly
adjudged or as to any other matter that
could have been raised in relation thereto,
conclusive between the parties and their
successors in interest by title subsequent to
the commencement of the action or special
proceeding, litigating for the same thing and
under the same title and in the same
capacity; and
(c) In any other litigation between the
same parties of their successors in interest,
that only is deemed to have been adjudged in
a former judgment or final order which
appears upon its face to have been so
adjudged, or which was actually and
necessarily included therein or necessary
thereto. (49a)
Conclusiveness of judgment
Letter a and b speaks of conclusiveness in both instances.
In letter a, the law says the judgment is conclusive upon the
title to the thing, the will or administration, or the
condition, status or relationship of the person.
In letter b, the law says the judgment is conclusive between
the parties and their successors in interest by title
subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same
title and in the same capacity.
This is the reason why a cadastral proceeding is considered as
an action in rem, because the judgment in that litigation is
conclusive upon the title, it is not conclusive upon the plaintiff
or defendant. Since the judgment in a cadastral proceeding is
conclusive upon the title of the property, that judgment will
have to be binding against the litigants as well as anybody who
has an interest over the property, although these persons
might have not been involved in the litigation.
In the probate of a will, which is another procedure in rem,
when there is a decision of the court admitting the will to
probate, it is conclusive upon the will or administration.
Therefore, anybody who have an interest in the will must
respect the decision of the court.
But you will notice that there is a caveat when it comes to a
probate of a will: it is not conclusive as to the fact that the
testator is dead. There is only a disputable presumption,
unless proof thereof is presented. The reason for this is that
in civil law as well as in the Rules, the probate of the will can
be commenced even when the testator is still alive, provided
that it is initiated by the testator himself.
If a person has been issued a decree of adoption of a child
named Juan dela Cruz, the decree is conclusive upon the
personal status of that adoptee. Therefore, anyone who
meets the adoptee and transacts with him shall be bound by
the issued decree of adoption.
In letter b, when the law says that judgment is conclusive
upon the parties and their successors in interest as to matters
directly adjudged or as to matters that could have been
adjudged, that phrase “litigating for the same thing and under
the same title and in the same capacity” will refer, for
instance, to a compulsory counterclaim or a cross-claim. This
is because we learned that a compulsory counterclaim or a
cross-claim that is not raised in the same action shall be
barred. The reason they will be barred is because they are
matters that could have been raised in relation to the principal
action. So, in a judgment in personam, the judgment is
conclusive only on the matter directly adjudged.
An example of an action in personam could be an action
involving reconveyance of property. If the action is only an
action for reconveyance or an accion reinvindicatoria, it is an
action in personam. Although real property is involved, still it
is an action in personam.
Plaintiff won the case with attachment of property.
Judgment is entered. The plaintiff is now the owner of
the property insofar as the judgment is concerned.
However, X, the true owner of the property, filed a case
for recovery of the property. Is there res judicata?
No. There is no identity of parties between the first and
second case. There also there may be no identity in cause of
action, although there is identity in the subject matter to
recover.
If there is identity in the subject matter, does it not
follow that there will be identity in the causes of action?
No. That would not be the correct assumption. There could be
identity as to the subject matter, but the causes of action
could still be different.
For instance, in accion reinvindicatoria, the subject matter
involves a piece of land. The case involves title to a piece of
land. If there was another complaint filed involving the same
piece of land, the cause of action could be different, although
they are referring to the same land. For instance, there could
be a case for unlawful detainer filed involving the same
property. Again, though involving the same subject matter,
the causes of action for accion reinvindicatoria and unlawful
detainer are different. Accion reinvindicatoria involves
recovery of title to the property, while unlawful detainer
involves recovery of physical possession of the property. In
this case, the second case cannot be dismissed by reason of
res judicata as there is no identity of causes of action.
General Rule on Res Judicata under Section 47 Rule 39
When the judgment is entered as contemplated in Section 47,
Rule 39, then the effect of the judgment is similar to a
judgment in rem or judgment in personam. The collateral
principle that we adopt from this rule on res judicata is that
the judgment that has been entered shall become immutable,
it cannot be changed or modified, even by the SC itself.
Everybody will have to respect res judicata applicable to this
judgment.
Exception:
1. Propriety of petition to annul judgment (it is an
attempt to change or modify a judgment, one ground
being lack of jurisdiction of the court over the subject
matter or over the person of the party)
2. Relief from judgment on ground of FAMEN under
Rule 38
FGU Insurance Case and a 2007 case
In that case, the SC gave 5 instances where a final
judgment can be modified or set aside.
1. Clerical errors;
2. Judgment nunc pro tunc;
3. The judgment is void; and
4. When supervening circumstances intervene after
finality of judgment to render execution of judgment
unjust and inequitable.
5. SC held that it has the inherent power to change and
modify final and executory judgments if substantial
justice so require. (2007 case)
Judgment nunc pro tunc (Now for then) – A judgment
intended to enter into the record the acts which had already
been done, but which do not appear in the records. Its only
function is to record some act of the court which was
done at a former time, but which was not then recorded,
in order to make the record speak the truth, without any
changes in substance or any material respect.
Conclusiveness of judgment
“(c) In any other litigation between the
same parties of their successors in interest, that
only is deemed to have been adjudged in a
former judgment or final order which appears
upon its face to have been so adjudged, or which
was actually and necessarily included therein or
necessary thereto”
This is a kind of res judicata with limited application. There
could be identity of parties and subject matter, but there is
no identity of causes of action. Thus, subsequent cases may
prosper due to absence of res judicata.

The debt based on a promissory note was 1M payable in 2
installments. The debtor defaulted in the 1st installment.
The creditor filed a case where creditor stated that the
PN’s signature was forged. Court held that the signature
on the note was genuine. Then, the second installment
became due. Can another complaint be had?
Yes. Each installment gives rise to a separate cause of action.
Can forgery be raised again on the promissory note?
No. Judgment on the first case is conclusive insofar as the
genuineness of the note is concerned.
Sec. 48 Rule 39Foreign judgments in rem and in personam
Judgment in rem – conclusive upon the title of the thing;
Judgment in personam –there is only the presumptive
evidence of a right as between the parties and their
successors in interest by a subsequent title.
There is a foreign judgment rendered by the Japanese Court.
The relief which the creditor stated in the Japanese court is
the fulfillment of an unpaid loan of 100k. The Japanese court
decides the case in favor of the debtor. The debtor is required
to pay the 100k in the Japanese court. The Japanese court had
not executed the judgment. But somehow, the debtor and
creditor were now living in the Philippines. The judgment
debtor has accumulated certain propertied in the Philippines.
Can the judgment creditor in that Japan case file a
motion for execution in the Philippine courts?
No. The Philippine court cannot entertain the motion as it
knows nothing about the claim of the judgment creditor
against the judgment debtor in the Japan case.
Is there a remedy available to the judgment creditor to
enforce the judgment of the Japan court in the
Philippines?
Yes, the remedy is found in Section 48 (b) Rule 39. The
judgment from the Japanese court is a presumptive evidence
of the judgment creditor’s right against the judgment debtor.
How does the judgment creditor make use of that rule
that the decision of the Japan court is presumptive
evidence of his right against the judgment debtor?
The creditor should file an independent complaint for the
enforcement of the decision of the Japan court. And the only
evidence that he needs to convince the court as to the
preponderance of evidence needed to prove his right is to
present to the Philippine court a certified true copy of the
decision rendered by the Japan court. If he is able to present a
certified true copy of the decision to the Philippine court, the
court will then apply the presumption given under Section
48(b) Rule 39, that the decision of the Japan court is
presumptive evidence of the rights between the parties.
In Section 48, there is a last paragraph talking about repelling
of a foreign judgment. A judgment of a foreign court can be
repelled by evidence of a want of jurisdiction, want of notice
to the party, collusion, fraud, or clear mistake of law or fact
committed by the foreign court. Hence, if the creditor files a
case for the enforcement of the decision of the Japan court,
the judgment debtor can present evidence that will repel the
foreign decision, such as want of jurisdiction over his person.

Can all these grounds repel a local judgment?
No. The defenses available for repelling the execution of a
foreign judgment is not availing.
Why cannot the defendant oppose the execution of a
local judgment using the grounds to repel a foreign
judgment?
We do not allow a motion for execution to be denied on the
argument did based on want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact
committed by the court because that will be a collateral attack
on the judgment, which is generally not allowed under the
Rules. We can only allow a direct attack on the judgment by
filing a petition to annul that judgment, on the ground of lack
of jurisdiction over the subject matter, lack of jurisdiction
over the person of the defendant or extrinsic fraud. We
cannot use these grounds to collaterally attack the judgment
in our system.
When we say collateral attack, the person attacking the
judgment does not file a separate complaint for the purpose
of having that judgment set aside. If he only opposes a motion
for execution, and the ground is that of lack of jurisdiction
over the case, it is not allowed since that is a collateral attack
on the judgment.
Section 48 allows collateral attacks only against a foreign
judgment, which cannot be allowed insofar as local judgments
are concerned.
With respect to collusion and fraud, they are also grounds to
attack directly the judgment under Rule 47 (Annulment of
Judgments), and then under Rule 38 (Petition for Relief from
Judgments). What cannot be done under our system is a
collateral attack against a final and executory judgment.
When can a collateral attack be had against a judgment?
When the judgment is patently void on its face, it is
vulnerable to collateral attacks.
Ex. The judgment contains only the dispositive portion. This
kind of judgment is void on its face. (Shimizu vs. Magsalin)
PETITION TO REVIVE JUDGMENT
- It is an independent action available to a judgment
creditor who has not executed the case via a motion in
the first 5 years from entry of judgment; Within the
2nd 5-year period from entry of judgment, the
judgment debtor cannot oppose an action to revive
judgment by setting up the defense that the judgment
is void due to lack of jurisdiction over the person of the
defendant, as this is a collateral attack on the judgment
rendered.
If the ground that the judgment is void is used as a defense
other than an independent complaint for annulment of
judgment, that is a collateral attack on the judgment.
PROVISIONAL REMEDIES
- Also called as Interim relief and provisional order
Q: What are the Provisional Remedies under the Rules of Writ of Amparo – under certain circumstances, it functions as
Court? a provisional remedy
A:
1. Preliminary Attachment (Rule 57) Amparo Provisional Remedies
2. Preliminary Injunction (Rule 58) Protection order
3. Receivership (Rule 59) Production Order
4. Replevin (Rule 60) Witness Protection Order
5. Support Pendente Lite (Rule 61) Inspection Order

Q: What are the Other Provisional Remedies available?

A:
1. Temporary custody over a minor
2. Deposit in Actions for Annulment of Sale (Reyes v. Lim) Provisional Remedies in Marriage-Related Cases:
3. Restraining order against the accused in cases of violence Spousal support
among immediate family members living in the same domicile Child support
and household Visitation
4. Hold departure orders issued by Regional Trial Courts in Temporary Custody of minor/s
criminal cases Hold Departure Order
5. Interim reliefs under Writ of Amparo: Protection order
a. Temporary Protection Order Appointment of administrator of co-owned propertied
b. Witness Protection Order of spouses (owned in common or forming part of the
c. Inspection Order conjugal partnership of gains)
d. Production Order
(Riano, Civil Procedure: A Restatement for the Bar, p. 534- Writ of Kalikasan
536, 2009 ed.) Temporary Environmental Protection Order (TEPO)
Discovery measures that appears to be considered
Rule 57 to Rule 61 as well as Separate circulars of the SC as provisional remedies:
on WHD and WA. Ocular Inspection Order
Writ of Habeas Data – under certain circumstances, it Production order
functions as a provisional remedy
Writ of Amparo
Writ of Habeas Data
Writ of Kalikasan
Common element: There is a pending principal action, except
when the provisional remedy by itself is or can be treated as a
principal action, such as Replevin, Writ of Amparo and Writ of
Habeas Data.
We cannot file an independent action solely for the purpose of
obtaining as a principal relief any of these provisional
remedies.
Example, a creditor cannot file a case solely for the purpose
of obtaining a preliminary attachment. Preliminary
attachment should be a relief prayed for in an independent
case.
Note:
Rule 57 Preliminary Attachment is a provisional remedy
because of the word ‘preliminary.’
Final attachment is not a provisional remedy. It is now part of
the execution process under Rule 39.
Note:
Levy on execution refers to levy on final attachment. But
we use the term levy on execution to differentiate it on levy
on attachment.
Levy on attachment is a provisional remedy.
The enumeration of provisional remedies in the rules is no
longer exclusive.
The new rules/circulars issued by the SC used the following
terms:
1. Provisional Order – related to marriage-related cases
2. Interim Relief –Amparo
3. Provisional Order or Provisional Remedy - Kalikasan
Provisional remedies cannot be the principal action itself,
subject to the exception of Replevin. Provisional remedy of a
writ of replevin is an application for recovery of personal
property in the main case.
Support pendente lite cannot be a principal action, as the
principal action should be a complaint for support, with
application of the provisional remedy of support pendente lite.
Writ of Amparo and Writ of Habeas Data are actions in
themselves, but are treated as provisional remedies. If there
is a criminal case already filed involving the disappearance of a
person, that criminal action being the principal case, there can
be an application for a writ of Amparo or a writ of Habeas
Data as a provisional remedy.
In the circular of Kalikasan, Production and inspection orders,
formerly modes of discovery, were elevated as provisional
remedies in Amparo and Kalikasan writs. Also included were
TEPO, preliminary attachment, ocular inspection order, cease
and desist order (Sec. 15a) and production and inspection
order.
In these new circulars, the SC has elevated several Modes of
Discovery as provisional remedies like production of
documents and inspection of things, they are now treated as
provisional remedies. The Kalikasan court can issue a
production and inspection order or an ocular inspection order.
The same is true with the Amparo circular. There is a
production order and inspection order, although they are
substantially of the same nature of the production and
inspection in the Modes of Discovery.
Although we have several provisional reliefs, interim reliefs or
provisional orders, it is incorrect to assume that there are
commonalities. These different circulars have not adopted the
provisions in the Rules (Rules 57 up to 61).
If you will notice under Rules 57 to 61, one of the common
requirements is the posting of bond by the applicant (except
support pendente lite). We have an attachment bond,
receiver’s bond, production bond, and the like.
But in the circular on marriage-related cases, the family court
can grant these provisional orders with or without bond at the
discretion of the family court. Also, in the same circular, the
family court can grant these provisional orders with or
without a hearing, which is similar to some provision in the
Rules that some remedies can be granted ex parte, or some
provisional remedies require a summary hearing before
issuance.
In the Amparo circular, when it comes to the provisional relief
of a PO and IO, there must be a motion filed by the applicant
and a must be hearing conducted. In the case of WPO and PO,
they can be issued ex parte.
In the Amparo circular, there is nothing mentioned about the
posting of a bond by the applicant. This is similar to that in
circular on marriage-related cases, where no bond is required
In the circular for the Writ of Kalikasan, the issuance of
Temporary Environmental Protection Order does not require a
bond. Just like preliminary injunction, there can be TRO good
for 72 hours, but can be extended until the end of the case.
What is peculiar is that the party required to post a bond
in a TEPO is not the applicant but the adverse party who
will apply the lifting of the TEPO. When the adverse party
moves for the lifting of the TEPO, the adverse party is
required to file a bond to protect the other party. In most
preliminary reliefs, it is the applicant who files a bond. The
filing of a counterbond will lift the preliminary relief. The
same is true with a TEPO. But the applicant does not have to
file a bond. If the TEPO is issued, the adverse party wants to
have the bond lifted, then he will be required to post a bond to
protect the interest of the applicants.
Another rule of interim relief or provisional remedies that is
applicable to the issuance of the interim reliefs is that the
interim relief or provisional order is always interlocutory, it is pendente lite, there could be instances where MTC can grant
not a final order and has nothing to do with the merits of the for support pendente lite, but we must keep in mind that so
case. Appeal is not allowed. long as that principal case is cognizable by the MTC, support
as a provisional remedy can be had.
The accepted remedy to challenge the issuance of a
provisional remedy or interim relief or a provisional order is
Rule 65, but in some circulars, that has also been changed
substantially. For instance, in summary procedure, in cases in
the MTC, when it grants a provisional order, it is not PRELIMINARY ATTACHMENT
appealable, and the adverse party cannot file a petition under
Rule 57. SECTION 1. Grounds upon which attachment may
Rule 65. The reason is that the application of availment of
issue.—At the commencement of the action or at any time
Rule 65 in order to challenge an interlocutory order is
before entry of judgment, a plaintiff or any proper party may
prohibited under summary proceedings. Likewise in
have the property of the adverse party attached as security
Amparo, there is a similar provision stating that grant of
for the satisfaction of any judgment that may be recovered in
provisional order is interlocutory, and Rule 65 is not
the following cases:
available, being an expressly prohibited pleading (See
Section 11l of The Rule on The Writ of Amparo). In the
circular of Kalikasan, the issuance of TEPO is also (a) In an action for the recovery of a specified
interlocutory. Although it can be challenged, the problem amount of money or damages, other than moral
is the challenge on a TEPO can only be filed before the SC and exemplary, on a cause of action arising from
under Rule 65.It is only the SC that can entertain a petition law, contract, quasi-contract, delict or quasi-
assailing the issuance of a TEPO. So, do not be of the delict against a party who is about to depart
impression that all of these remedies being provisional in from the Philippines with intent to defraud his
character, they are governed by the same set of rules. They creditors;
are governed by a different set of rules, depending upon the (b) In an action for money or property embezzled
circular of the SC applicable to each one of them. or fraudulently misapplied or converted to his
own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker,
With respect to the authority of the MTC being able to grant
agent, or clerk, in the course of his employment
interim relief, it has been settled under BP 129. Under Sec. 33
as such, or by any other person in a fiduciary
of BP 129, it is clearly provided therein that MTCs have
capacity, or for a willful violation of duty;
authority to grant provisional remedies so long as it has
jurisdiction over the principal case. In case of support
 (c) In an action to recover the possession of
property unjustly or fraudulently taken, detained
or converted, when the property, or any part
thereof, has been concealed, removed, or
disposed of to prevent its being found or taken
by the applicant or an authorized person;
(d) In an action against a party who has been
guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is
brought, or in the performance thereof;
(e) In an action against a party who has removed
or disposed of his property, or is about to do so,
with intent to defraud his creditors; or
(f) In an action against a party who does not
reside and is not found in the Philippines, or on
whom summons may be served by publication.
You will notice in Section 1 that there are 6 instances where
one can file for the relief of preliminary attachment. In the
first five, there is a common denominator, intent to defraud
the applicant.
The last is closely related to Rule 14 (Summons), in gaining
jurisdiction over the person of the party. The applicant is
moving for an interim relief in order to enable him to secure
for himself a judgment in court by attachment of the
properties of the party who could not be served with
summons in any manner, including by publication. When the
property of the absent party is attached, the action in
personam will be converted to an action in rem or quasi in rem
by virtue of a preliminary attachment issued by the court and
actually implemented by the sheriff.
Except for the last part of Section 1, the only purpose of the
applicant in moving for the issuance of a writ of preliminary
attachment is to enable him to obtain a security for any
judgment that may be rendered later on by the trial court in
his favor.
If we will note in the cases enumerated in Section 1, mainly,
the conduct of the adverse party is criminal in character. It is
a common saying in preliminary attachment that the fraud
committed could be a criminal fraud or wholly a civil fraud (an
act of fraud that has not reached the level of a crime) that will
justify issuance of preliminary attachment. The conduct
should fall in any one of the instances under Section 1 of Rule
57.
Thus, the issuance of a bouncing check can cause the filing of
an information as well as an application for attachment of
properties of the drawer. There is fraud in the performance of
an obligation. In the NCC, if there is fraud in performance of
an obligation (dolo incidente), or a fraud in contracting (dolo
causante, a deception employed by one party prior to or
simultaneous to the contract in order to secure the consent of
the other). In both instances, they are justification for the
issuance of preliminary relief.
Supposing the plaintiff has a creditor that holds
collateral. If there is default in payment of indebtedness,
and there is a case of collection with allegation of intent
to defraud, can the creditor move for preliminary
attachment over the collateral?
Yes. Although applicant may have a security already in hand,
the court may still grant such preliminary attachment if the
applicant proves such collateral/security is insufficient
to satisfy the debt. Thus, creditor can look for other
properties of the debtor sufficient to secure the obligation
due once the court grants preliminary attachment.
In preliminary attachment, there are 2 rules that are
applicable to preliminary attachment as well as other
provisional remedies in the Rules when they are granted
ex parte:
1. Prior and/or contemporaneous service of summons
2. Principle under Section 20 Rule 57
Prior and/or contemporaneous service of summons –
there is an application filed after the commencement of the
action, and even before the court acquires jurisdiction over
the person of the defendant via summons, the court may
already have approved the application for attachment.
For a court to act validly, the court must acquire jurisdiction
over the cause of action, the person of the plaintiff and the
person of the defendant. This remedy is available even before
jurisdiction over the defendant can be had via a verified
application for preliminary attachment filed by the plaintiff.
But, issuance of preliminary attachment at pre-stage
proceeding requires a hearing and the court will require the
posting of an attachment bond before the writ is issued; as
long as all the conditions have been met, there is only the
carrying out the writ. The sheriff must first serve the
summons and then the notice of attachment, or serve them
contemporaneously. This will remedy the lack of jurisdiction
by the court over the person of the defendant. This is
applicable in all provisional remedies that the court can grant
ex parte even before the court has gained jurisdiction over
the person of the defendant. This can be applied in
preliminary injunction and in preliminary relief of replevin.
Since preliminary attachment, if carried out, is a derogation
on the right of ownership of the adverse party, the rule on
attachment should be strictly construed in order to protect
the right of ownership of the adverse party. If the properties
of the defendant are going to be subject to attachment, and
these properties are those capable of delivery, like a car, they
will be seized in custodia legis so long as the preliminary
attachment is not lifted. But the property will not be delivered
to the plaintiff, nor used by the defendant. It will be in the
custody of the court. If the court takes 3 years to decide the
case, the property will be under custody of the court for 3
years.
In case of real property, the title will be annotated with a lien.
He does not lose ownership. He can sell it, but the buyer will
be notified via the annotation on the title, and he must
recognize that fact, that the property can be subject to
auction sale later on. The buyer could stand to lose his title on
the property. The buyer cannot be considered a buyer in good
faith. He will always be a buyer with notice of the existence
of the preliminary attachment.
If the defendant has a sizable bank account, the sheriff will
simply prepare a writ of garnishment and serve it upon the
bank. When the bank receives the writ, the bank will freeze
the account up to the amount of the claim. And if the bank
account is frozen, the defendant cannot use these funds
anymore. The bank will not allow him to withdraw. If it is a
checking account and the defendant issued checks thereon,
the bank will dishonor the checks that are presented to it.
Thus, a preliminary attachment is a serious derogation of the
rights of ownership of the defendant. In that writ of
garnishment, which is also applicable to Rule 39 (Execution of
Judgment), there will be a new relationship created as an
incident to the case, which we called Forced intervention –
the judgment debtor/defendant, whether he likes it or not,
will be subject to further orders of the court. So if a bank
account is garnished, whether the bank likes it or not, the
bank will be forced to follow the orders of the court, in the
sense that the bank will have to follow the orders of the court
after the garnishment of the bank account of the defendant.
The remedies under Rule 57 can be lifted.
How preliminary attachment is lifted:
1. File a cash deposit with the court equal to the attachment
bond or
2. File a counterbond via surety authorized by the court (The
filing of such counterbond will make a ministerial duty of the
court to lift the preliminary attachment.)
3. Motion for lifting preliminary attachment due to being
improper or irregular – a motion must be filed by the
defendant, with notice of hearing.
If the defendant has already posted a counterbond and
the preliminary attachment has already lifted. Can he
apply for reversal of the order granting preliminary
attachment?
Yes. Even if the defendant has caused the lifting of the
preliminary attachment by payment of cash deposit or by
counterbond, he can still file a motion to lift the preliminary
attachment. This is because he has put up counterbond or
cash deposit enough to secure the satisfaction of the claim of
the plaintiff, and there is no need for the attachment
anymore.
Principle under Section 20 Rule 57
SEC. 20. Claim for damages on account of
improper, irregular or excessive attachment.
—An application for damages on account of
improper, irregular or excessive attachment
must be filed before the trial or before
appeal is perfected or before the judgment
becomes executory, with due notice to the
attaching party and his surety or sureties,
setting forth the facts showing his right to
damages and the amount thereof. Such
damages may be awarded only after proper
hearing and shall be included in the judgment
on the main case.
If the judgment of the appellate court be
favorable to the party against whom the
attachment was issued, he must claim damages
sustained during the pendency of the appeal by
 filing an application in the appellate court, with
notice to the party in whose favor the
attachment was issued or his surety or sureties,
before the judgment of the appellate court
becomes executory. The appellate court may
allow the application to be heard and decided by
the trial court.
Nothing herein contained shall prevent the party
against whom the attachment was issued from
recovering in the same action the damages
awarded to him from any property of the
attaching party not exempt from execution
should the bond or deposit given by the latter be
insufficient or fail to fully satisfy the award.
In an action where a writ of attachment has been issued
by the court, the writ will only be lifted if there is a cash
deposit or counterbond filed in the court, and the court
will withdraw the order. The court will then decide the
merits of the case. If the applicant wins, there is now a
judgment on the merits in favor of the applicant. Can the
defendant hold the applicant liable for improper or
irregular attachment even if he lost the case?
Yes. If the applicant eventually wins the case, it means the
applicant has a cause of action against the defendant. But, it
does not necessarily follow that the cause of action falls
under Sec. 1 of Rule 57. He may not have been able to
prove dishonesty or intent to defraud. So, if the applicant
failed to prove that his case falls under the cases mentioned in
Section 1 of Rule 57, it means that the issuance of the court of
the writ of preliminary attachment was irregular and
improper. The only instance the court should grant
preliminary attachment are the instances mentioned in Sec. 1
Rule 57. If the defendant wins the case, the applicant shall be
liable for damages as a matter of course. But Section 20 is the
procedure to be followed in rendering the applicant liable for
damages for a wrongful or improper issuance of a writ of
preliminary attachment.
Note: If bond or deposit given by the party availing of the
provisional remedy be insufficient or fail to satisfy the award:
Adverse party may recover damages in the same action (Sec.
20, Rule 57; Sec. 8, Rule 58; Sec. 9, Rule 59; Sec. 10, Rule 60) .
Note: Any award of damages for the wrongful issuance of a
provisional remedy should be recovered in the same case. The
recovery of damages cannot be had in a separate action.
The first principle under Section 20 Rule 57 is that the
recovery of damages should be had in the same case, not in an
independent action. Adverse party must already submit an
application for damages for improper issuance of writ of
preliminary attachment. The most practical way of informing
the court right away is to set up in his answer a compulsory
counterclaim for recovery of damages. If the defendant did
set up a counterclaim for recovery of damages, and then the
defendant eventually wins, he will just file an application
through a motion to conduct a hearing on the extent of
liability to which the defendant is entitled to recover.
What Rule 57 tells us is that it is not possible for the
defendant who has won the case to file a separate complaint
for recovery of damages arising out of a wrongful
attachment. If he did so, that independent case will be
dismissed, even motu propio by the court, due to res judicata.
In Section 20, Rule 57, it is very clear that the extent of
damages to be recovered need not be equivalent to the
attachment bond filed in court. Sec. 20 Rule 57 provides
that if the attachment bond is insufficient, there could be an
availment of a levy of execution under Rule 39 by the
defendant. (This section is similar to other provisional
remedies in the Rules) “Nothing herein contained shall
prevent the party against whom the attachment was
issued from recovering in the same action the damages
awarded to him from any property of the attaching party
not exempt from execution should the bond or deposit
given by the latter be insufficient or fail to fully satisfy
the award.” Thus, the defendant can ask for a writ of
execution against the applicant under Rule 39. There can now
be a levy on execution against the applicant.
Remember that Rule 20 is a provision that is followed by other
provisional remedies where there is a bond required
(preliminary injunction, receivership and replevin) before the
court will issue the preliminary relief prayed for.
RULE 58 PRELIMINARY INJUNCTION (PI)
The principal action could be any action coupled with an
application for a TRO or a writ of Preliminary Injunction. A
special action for certiorari under Rule 65 is usually
accompanied by a verified application for TRO and writ for PI.
The relief usually asked for in Rule 65 is for a writ to prevent
or prohibit the respondent court from going ahead with the
case pending before the court, or in case of a certiorari, to set
aside the decision or interlocutory order of the respondent
court. Preliminary injunction and TRO can be availed of in any
civil proceeding where the principal relief sought by the
applicant or petitioner is to prevent an act or compel
performance of an act. PI can also be had in criminal cases or
special proceedings, as long the principal relief is to compel or
to prevent the performance of an act.
In PI, there are 2 provisional remedies contemplated:
1. TRO
2. Writ of Preliminary Injunction
Both require an injunction bond. TRO, in exceptional cases,
can be granted ex parte. A bond must be paid. Generally, a
court cannot grant TRO without a hearing. When there is
grave and irreparable injury,
The general rule is that a court cannot grant a TRO or a writ
of PI without a hearing, unlike preliminary attachment. Always
expect a summary hearing, with notice to both parties, to be
conducted.
TRO can be granted ex parte, by way of exception, in
instances when there is grave and irreparable injury that will
be caused to the applicant, and in no way shall the total period
of the TRO be longer than 20 days. The court will still fix a
TRO bond. During the 20-day period, the court will then
conduct a hearing to determine whether or not a writ of PI will
be needed.
(‘if the matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury, the
executive judge of a multiple-sala court or the presiding judge
of a single-sala court may issue ex parte a temporary
restraining order effective for only seventy-two (72) hours
from issuance but he shall immediately comply with the
provisions of the next preceding section as to service of
summons and the documents to be served therewith.
Thereafter, within the aforesaid seventy-two (72) hours, the
judge before whom the case is pending shall conduct a
summary hearing to determine whether the temporary
restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the
total period of effectivity of the temporary restraining
order exceed twenty (20) days, including the original
seventy-two hours provided herein.’ 2nd Par. Sec. 5 Rule
58),
PI ABSOLUTELY requires a summary hearing. A court cannot
grant a PI without a hearing. There is no exception. It is only
in the issuance of a TRO where there is an exception to the
general rule where it can be issued ex parte. In multi-sala
courts, the executive judge can issue a TRO ex parte, but it
shall be good only for 72 hours. And then, in a multi-sala
court, what the petitioner files with the court is motion for a
special raffle. If granted, there will be such special raffle in
the meantime that the executive judge has issued the ex
parte TRO. After the raffle is completed, the judge sala in
which the action has been assigned has the duty to conduct a
hearing to determine whether or not it will have to issue a
writ of PI.
Do not forget the modifications of the 2007 circular to Rule
58. The modification is that if a court has issued a writ of
PI which has no term (not lifted until finally decided or
until ordered), the court that issued such writ of PI must
decide the principal action within a period of 6 months.
This is the modification in the 2007 circular. If the court does
not place a limit of 6 months to decide the principal action,
the writ will be effectively be a perpetual injunction, because
it is effective until the case has finally been decided. If the
court grants the PI today, it has only 6 months within which
to decide the case. In deciding the principal case, the court
could rule in favor of the plaintiff or defendant. If ruled in
favor of the defendant, the PI is automatically lifted, meaning
the plaintiff has no right at all to ask for the writ of PI.
Although the authority of the court is very broad in the
issuance of a writ of PI, there are instances where a court
cannot grant a writ of PI or TRO.
Instances where a court cannot grant PI or TRO:
1. in the enforcement of Kalikasan statutes (except the SC, as
only SC is authorized to issue TRO or PI in Kalikasan
cases)
2. if there is a TEPO issued by any court (it is only the SC
that can prevent the carrying out of the TEPO)
3. In the case of infrastructure projects of the national
government (only the SC that can prevent the carrying out
of the project)
4. When it is a government bank that forecloses the mortgage
(only the SC that can prevent the carrying out of the
foreclosure, either judicial or extra-judicial)
5. court has no authority to grant injunctive relief against the
BoC. (violation of separation of powers)
6. court cannot grant injunctive relief against deportation of
aliens (violation of separation of powers)
If we compare the remedies available to a defendant against
whom an injunctive writ has been issued to that of which a
Preliminary Attachment has been issued, in Rule 57, in PA, if
the adverse part/defendant files with the court a
counterbond, the lifting of the PA is ministerial to the court.
The properties will be returned. PI cannot be lifted without a
hearing despite posting of counterbond. The court cannot rely
on the filing of a counterbond to lift the PI, as it has to study
the merit of the lifting of the injunction. It is not a matter of
right of the adverse party to expect the injunction court to
lift the PI just because of the filing of a counterbond. The
reason why the Rules do not make it a ministerial duty of the
court to lift the PI simply because there is a counterbond is
due to the ground of grave and irreparable injury. The injury
cannot be measured exactly, there is no mathematical formula
to determine extent of damages that applicant can suffer in
injunction cases.
In Preliminary Injunction (PI) and Preliminary Mandatory
Injunction (PMI), we should always relate these to the
summary proceedings. Relate these in relation to Forcible
Entry and Unlawful Detainer in the NCC. The MTC can grant
PA or PMI.
The NCC contains some procedures in the matters pertaining
to Forcible Entry or Unlawful Detainer. In the NCC, which is
copied by Rule 70, it is provided that the court can grant PI or
PMI in cases of ejectment. If the MTC grants PI or PMI, that
cannot be appealed or challenged by a petition under Rule 65.
Under the rule on summary proceedings, Rule 65 is a
prohibited pleading in summary proceedings in challenging an
interlocutory order. This is the Rule found in Rule 70, as well
as in some articles of the NCC.
But when that ejectment case is appealed in the RTC, in the
exercise of its appellate jurisdiction, the NCC, as well as the
Rules, provides that the RTC can grant PMI or PI if applied by
the plaintiff/applicant. PI or PMI granted by the RTC as an
appellate court remains unappealable as it remains to be
interlocutory, but this can now be challenged under Rule
65. This is because summary procedure is in effect while
the case is in the MTC, whereas on appeal in the RTC, the
regular procedure applies, and challenge under Rule 65 is
allowed.
RULE 59 RECEIVERSHIP
It has a feature not present in other provisional remedies.
Provisional remedies are contemplated to be used during the
pendency of the case. In receivership, the court can appoint
a receiver during pendency of a case. Under the Rules,
the court can also appoint a receiver after the judgment
or in the process of execution of said judgment. This
feature makes this remedy unique. There is no fixed time in
which a court can appoint a receiver.
Relate this to the remedies of a judgment creditor in Rule 39
when he is unable to recover full satisfaction of his account.
Under Rule 39, the judgment creditor can ask for examination
of the judgment debtor for any properties. If there are
properties present, judgment creditor can apply that such
properties be placed in receivership.
There has to be a summary hearing, no ex parte appointment
of a receiver is allowed.
The grounds for appointment of receiver are quite broad.
Whenever the court feels there is a need for the appointment
of a receiver to preserve the property in litigation, it shall do
so. The Rules also provide in foreclosure of a mortgage, the
mortgagee can move for the court to have the mortgaged
property placed under receivership, even if there is no proof
that the collateral will be lost or deteriorate. This can be done
whenever the deed of mortgage contains a stipulation
authorizing the mortgagee to move for the appointment of a
receiver. But generally, the purpose of receivership is to
preserve the property under litigation from loss or
deterioration.
SC held that the receiver is not a representative of either
party. It classified the receiver as a representative and
an officer of the court. Thus, the receiver cannot file a case
as a receiver without the consent of the court. If a receiver
needs to file a case to recover certain properties under
receivership, he needs permission from the court to do so. On
the other hand, if a 3rd person has a grievance against the
receiver in his capacity as a receiver, the 3rd person cannot
simply file a case against such receiver as the 3rd person must
seek permission of the court first. We find here a situation
that the filing of a case will need permission of the court. If
not granted, that action will fail.
Practically every issue is left to the court. The court
determines how much compensation to give to the receiver,
the qualifications of a receiver, how many receivers may be
needed. The court can appoint a receiver, it can also fire said
receiver and appoint a new one, whenever there is a need to
preserve the property. The competence in the determination
of such matters is in the receivership court.
There is another feature in receivership that is not found in
the other provisional remedies. In receivership, there are two
bonds :
1. Bond of the applicant
2. Bond of the receiver
The applicant should manifest that he is able to post bond.
Once the court appoints the receiver, the receiver shall also
post a bond. The receiver’s bond is designed to protect the
parties to the litigation from any abuse or mischief by the
receiver in the performance of his duty.
RULE 60 REPLEVIN
By jurisprudence, it is accepted as a main action and as a
provisional remedy at the same time. Recovery of
possession of property capable of manual remedy is termed as
a complaint for replevin. It automatically rules out a real
action. In personal action for recovery of possession of
personal property, it involves warrant of seizure or writ of
replevin to enable applicant to gain possession of the specified
personal property.
In replevin cases, without an application of a provisional
remedy of a writ of replevin, the plaintiff recovers possession
of a personal property only after the case has been decided in
his favor. So, if plaintiff filed the case today for recovery of a
car without an application for the provisional remedy of a writ
of replevin, and the case was decided 5 years later, the car
shall remain under the possession of the defendant during
those 5 years. Chances are, by the time the case is decided,
the car might already be in a bad condition. That is the role of
a writ of replevin. So if a plaintiff files a complaint today for
the recovery of a car, if he wants to gain possession of the
car right away, he should file an application for a writ of
replevin in order for him to immediately gain possession of
the car.
Writ of replevin is tilted always in favor of the applicant. The
court can grant the motion or application ex parte. This is one
provisional remedy which cannot be granted by an appellate
court. Only the court of original jurisdiction can grant it,
as this can be granted ONLY before the defendant
answers (thus, it will be improper for the court to grant
it once the defendant already filed an answer). But, there
must be prior/contemporaneous service of summons to
cure defect in jurisdiction over the person of the
defendant. Once served, the sheriff will seize the
personal property. Sheriff has a 5 day holding period after
seizure. If there is no challenge on sufficiency of the replevin
bond and no counterbond, the sheriff shall turn over
possession to the plaintiff. This is the advantage of replevin,
it immediately enables the plaintiff to recover possession of
the personal property that is the subject of litigation..
Problems in the service of the writ of replevin.:
1. Jurisdiction is either RTC or MTC depending on the value of
the property alleged in the complaint. As long as the court has
jurisdiction over the complaint based on the alleged value of
the personal property, the court can issue the provisional
remedy of a writ of replevin.
Note: Value of the property = jurisdictional
2. The bond required is different than the other
provisional remedies. The bond is DOUBLE THE VALUE of
the property subject to seizure AS ALLEGED in the
complaint. The court has not further authority to
increase or decrease the bond. IT will be based solely on
the value of the property as alleged in the complaint.
3. In the service of writ of replevin, when the sheriff finds
the property is not in possession of the defendant but a
3rd person who is not a litigant, and said person claims
ownership of the property, sheriff will not seize the
property.
(Note: The solution to this is to advise your client that
complaint should implead 2 defendants, one who was known by
the plaintiff to possess the thing subject to the complaint and
an UNKNOWN defendant. Thus, sheriff can rightfully seize
the car from anybody who might be in possession, as long security purposes, the ownership of the property subject to it
as an unknown defendant is impleaded in the complaint.) belongs to the defendant, not a property of the plaintiff.

4. Within the holding period of 5 days, the defendant can 5 The decision of the court can be in the alternative. If the
file motion to challenge sufficiency of the bond property itself cannot be delivered, the value of such
(undervaluing) or a 3rd party claim, wherein a 3rd person property can be delivered to the prevailing party.
claims to be a true owner of the thing (like in Rule 57 and
Rule 39). But in Rule 60, Replevin, the 3rd party claim must
be filed within the 5-day holding period, otherwise, the RULE 61 SUPPORT PENDENTE LITE
3rd party claim is useless. This is because after the 5-day
This is found under the Rules and also mentioned in the SC
holding period, the sheriff shall deliver the car to the
Circular on Provisional Remedies in Marriage-Related Cases. In
applicant.
fact, the circular of the court is more expansive. This is
because, it does not only mention support pendente lite, it
A complaint for replevin was filed by X for recovery of a classifies it into spousal support and child support, and are
car. The court issued the writ but the sheriff submitted a treated differently.
return saying he cannot enforce the writ as the car can
no longer be found. What the plaintiff did after receiving
In the circular Family Court, which has jurisdiction over a
the return was to file another application for Preliminary
complaint for support, can grant both spousal support and
Attachment of the properties of the defendant based on
child support even without hearing and without requiring the
the same complaint on the ground that the defendant
filing of a bond. This is also provided in the Rules on Support
has gotten hold of the property fraudulently and that he
pendente lite. We follow that provision provided for in the
has hidden the car so it cannot be found and be subject
circular. A Family Court can grant spousal and child support
to seizure. Is this proper?
even without filing of a bond and without need for a hearing.
The conversion of application for a writ of replevin into one
for an issuance for PA is not proper. SC held that if plaintiff
This is different in trial in courts that are not functioning as
does not succeed via replevin, he cannot use PA. If he desires
family court. This is because in the Rules of Court, it is not
to use PA, he should overhaul his complaint. The
proper for an ordinary court to grant an application of support
allegations for the application for a writ of replevin is
pendente lite without conducting a hearing. In the Rules, in
different from that for issuance of a writ of PA. In
Provisional Remedies, support pendente lite can only be
application for issuance of a writ of replevin, the plaintiff
allowed only after a hearing is heard, and the applicant and
alleges he is the owner or entitled to possession. PA is for
respondent are given the chance to explain. The reason why
this is required in the Rules is that a court cannot conceivably
issue an order granting support pendente lite unless the court
is able to determine first that the petitioner needs support,
and even if the petitioner does need support, to determine
that the respondent is capable of grant such support. This is
because if the court simply grants an application for support
pendente lite without examining the financial ability of the
respondent, that provisional remedy will be useless. If the
respondent cannot comply, as he had no means to give
support, he could be jailed. This is one action where the court
can imprison a respondent who does not comply with its order
to give support, although the respondent really may not have
the ability to really do so.
Remedies in case of violation against giving of support
under substantive law: (Dean Jara: This probably violates
the equal protection clause as they are relatively unfavorable
to us men.)
1. Imprisonment for commission of a crime
2. Citation for contempt and imprisonment
3. Issuance of an order of execution against violator under
Rule 39
In the Rules of Court on Support Pendente Lite, you will notice
that the principle in Section 20 Rule 57 is not followed at all. A
remedy to recover damages in wrongful issuance of
provisional remedies should be in the same case. There must
be no separate action to recover damages. But if you read the
provisions for Support Pendente Lite, it is expressly provided
that there could be an independent action for recovery of
money given as support in compliance with an order of the
court. There is no need for respondent to file a claim for
damages in the same action.
If you are asked why a Family Court can order spousal support
without a hearing, just state that there is no need for a
Family Court to determine the needs of the spouse or of the
minor children, there is no need for the court to determine
the financial ability of the defendant. This is because in
family-related cases, there is a need for an inventory of
properties submitted to the Family Court by the petitioner.
Based on the inventory, the court can conclude how much the
spouse is entitled and how much the minors are entitled to
support.
Also, with respect to the Provisional Orders granted by a
Family Court in marriage-related cases, although the
provisional orders are called by some other name, these
partake in the nature of an injunction.
TPO in a marriage-related case is actually a prohibitory
injunction and a mandatory injunction at the same time. This
is because in the protection order, the Family Court prohibits
respondent from certain acts,, which is a prohibitory
injunction. Also, the Family Court can tell the respondent not
to enter the former conjugal dwelling and to remove his
personal properties from the house. Thus, it partakes of a
mandatory injunction.
RECEIVERSHIP IN MARRIAGE-RELATED CASES
We also have receivership in marriage-related cases where the
court may appoint an administrator of the properties. He is
effectively a receiver of properties owned in common.
With respect to interim reliefs in Amparo, there is nothing
mentioned in the circular about filing of a bond.
With respect to Kalikasan circular, the applicant is not
required to post a bond. It is the adverse party who will have
to post a bond in order to lift or dissolve the writ of Kalikasan
as security to protect the interest of the applicant.
Read the Circulars on the Writs.
Center your attention on the procedures required in civil and
criminal cases given in the Writs:
Kalikasan cases
- Commenced in RTC, MTC, CA, SC
- Continuing mandamus is only cognizable only in SC
and CA
- Party complaining/answering must have attached
documentary and/or object evidence available
- If the defendant does not file an answer, there is no
need for a motion do declare defendant in default, it
being a prohibited pleading.
- If the defendant does not answer, it is the duty of
the court to declare the defendant in default, no
motion need be had, and the plaintiff’s evidence can be
received ex parte.
- Compromise of the civil action is encouraged. The
judgment is not called a judgment based upon a
compromise but is called a Consent Decree.
- Rules on Evidence are not necessarily followed.
Quantum of evidence in civil cases is mere
preponderance of evidence. However, there are several
instances in Kalikasan cases that mere substantial
evidence is enough, which is also now followed in
Amparo cases. In Amparo cases, only substantial
evidence is required, which is the same quantum of
evidence in quasi-judicial proceedings. In Amparo
cases, the rule on quantum of evidence is exclusively
determined by the SC. If substantial evidence is
required in Amparo cases, then that is the quantum
required. An administrative body cannot change the
quantum of evidence required.
Special Civil Actions
1. Interpleader (Rule 62)
2. Declaratory relief and similar remedies (Rule 63)
3. Review of judgments and final orders of the COMELEC and
the Commission on Audit (Rule 64)
4. Certiorari, prohibition and mandamus (Rule 65)
5. Quo warranto(Rule 66)
6. Expropriation (Rule 67)
7. Foreclosure of real estate mortgage(Rule 68)
8. Partition (Rule 69)
9. Forcible entry and unlawful detainer (Rule 70)
10. Contempt (Rule 71)
11. Petition for Writ of Kalikasan
12. Petition for Continuing Mandamus is a special rule specifically devoted to a certain special civil
action, we will still apply ordinary rules of civil procedure.
Q: What special civil actions are initiated by complaints
and initiated by petitions? RULE 62 INTERPLEADER
A: What is so special about interpleader?
1. by complaint In ordinary civil cases, an action is commenced by the filing of
a. interpleader a complaint, petition or something equivalent to a complaint.
b. expropriation In an interpleader, it can be commenced by the filing of an
c. foreclosure of real estate mortgage answer with a counterclaim for interpleader.
d. partition
e. forcible entry and unlawful detainer Since we are following the rules in ordinary civil action, there
is need of a plaintiff and a defendant. In an interpleader,
2. by petition
there is a plaintiff and there can two or more defendants.
a. declaratory relief
b. review of judgments and final orders or resolutions
One of the features of interpleader which is not possessed by
of the COMELEC / COA
ordinary civil actions is the absence of a cause of action. In
c. Certiorari
ordinary civil actions, if there is no cause of action, the
d. Prohibition
complaint will be dismissed. In a complaint for interpleader or
e. Mandamus a counterclaim for interpleader, the plaintiff does not aver a
f. Quo Warranto cause of action. The plaintiff in interpleader cannot say that
g. Contempt he has a cause of action because it is an essential
h. Petition for Writ of Kalikasan requirements in an action for interpleader that the plaintiff
i. Petition for Continuing Mandamus does not allege a right at all; or if he alleges a right, nobody
has violated the right, the defendants agree he has a right or
does not contest the right.

To properly appreciate why a civil action is further classified

into a special civil action, all that we have to do is to check
Rule 1. In Rule 1, a special civil action is inherently a civil
action. What makes it special is that the Rules require
additional procedure for each and every special civil action
that is not followed in ordinary civil proceedings. Unless there
Since we are going to follow the rules of ordinary civil
actions unless otherwise provided in the Rules, does it
mean to say that we should submit a controversy of
interpleader involving at least two or more defendants,
should there be prior barangay conciliation before we go
to court?
Yes. Generally, that is a rule that is applicable to all civil
actions, and thus will include special civil actions, so long as
the parties are natural persons residing in the same city or
municipality.
Since we are going to follow the rules of ordinary civil
actions unless otherwise provided in the Rules, does it
mean to say that we should wait for the court to issue
summons?
Yes. That is the means by which the court will acquire
jurisdiction over the defendant.
In interpleader, a summoned defendant who failed to file an
answer shall be declared in default.
In Rule 9, when there is a complaint against several
defendants, and one or two of these defendants failed to file
an answer while the others filed an answer, Rule 9 says that
the non-answering defendant will be declared in default, but
the non-answering defendant will be tried based on the
answer filed by the other answering defendants. Hence, if the
answering defendant wins, the defaulting defendant
automatically wins. This is because both answering and non-
answering defendants are sued under a common cause of
action.
We do not apply Rule 9 to an interpleader. In interpleader,
when one defendant files an answer and the other did not file
an answer and was declared in default, the defaulting
defendant automatically loses the case. This is because the
Rules provide, that in addition to being declared in default,
the non-answering defendant will lose his claim. Although in
reality the defaulting defendant has a claim, his being
declared in default will make him lose his right to the claim.
Thus, if there are only two defendants and one of them was
declared in default, since the defaulting defendant has already
lost the case, the remaining defendant will have a great
chance of being declared as the one with the right to the
subject of the interpleader. This is because the plaintiff in the
interpleader does not have any right or interest to the claim
of either defendants. The remaining defendant will be
declared as the one with the right to the claim that is the
subject of the interpleader.
Q: What are the three special civil actions which are
within the jurisdiction of MTCs?
A:
1. Interpleader, provided that the amount is within the
jurisdiction of such MTC
2. Ejectment suits
3. Contempt
Q: What is an interpleader?
A: It is a special civil action filed by a person against whom
two conflicting claims are made upon the same subject matter
and over which he claims no interest, to compel the claimants
to interplead and to litigate their conflicting claims among
themselves. (Sec. 1, Rule 62).
Q: What are the requisites in order that the remedy of
interpleader may be availed of?
A:
1. Plaintiff claims no interest in the subject matter or his claim
is not disputed
2. Two or more claimants asserting conflicting claims
3. The subject matter must be one and the same
4. Person in possession or obliged files a complaint.
5. The parties to be interpleaded must make effective claims.
6. Payment of docket and other lawful fees.
Note: Upon filing of complaint, the court shall issue an order
requiring conflicting claimants to interplead. (Sec. 2, Rule 62)
Rule 63 Enumerates 4 special civil actions
~Declaratory Relief
“and other similar remedies”:
~Reformation of instrument
~Quieting of title
~Consolidation of title
Although in the same Rule, they are governed by different
procedures.
DECLARATORY RELIEF RULE 63
The obvious nature of declaratory relief, which makes it a
special civil action, is that the petition must be filed before a
breach or violation of a right. (If we would follow ordinary
rules of procedure, the complaint would have been dismissed
outright because of lack of a cause of action.) There is no
allegation that there is a right violated by another. If there is
such an allegation, then the action ceases to be a special civil
action for declaratory relief, it becomes an ordinary action.
Declarative relief is a preventive mechanism to prevent
parties from getting involved in an ordinary civil case. In
Declarative relief , the petitioner does not allege he has a
right, or if he has, it has not been violated, and therefore,
there is really no cause of action. The petitioner seeks from
the court a determination of what his rights are. Petitioner is
not absolutely certain if he has rights under a certain
instrument, so he asks the court to declare what his rights
are. The actual remedy is that the court declares what his
rights are.
If the remedy is the declaration of the rights of the
petitioner, then a prayer for damages in declaratory
relief negates the nature of such special civil action.
Damages connote the fact that a breach or violation of a right
has occurred.
There is an enumeration under Rule 63 (Section 1) as to the
instruments which could be subjects of a petition for
declaratory relief; “deed, will, contract or other written
instrument, whose rights are affected by a statute, executive
order or regulation, ordinance, or any other governmental
regulation.”
With respect to statute or ordinance, the same principle
applies, we cannot apply for a petition for declaratory relief if
there is already a violation. If there is a violation already, the
petition will not be proper. Declaratory relief must be had
before such ordinance or statute has become effective. This is
one of the reasons of the 30 day period (date of effectivity;
after publication) before a law that has been enacted by
Congress has effect. The said time before such statute or
ordinance takes effect is the time for it to be subject to
petition for declaratory relief, determining whether that
statute or ordinance is constitutional or unconstitutional.
You will meet decisions of the SC concerning declaratory relief
to the effect that you cannot file a motion for execution in
order to carry out the declaratory judgment (the judgment in
a case for declaratory relief), in order to differentiate it from
what the court usually renders after a judgment has been
entered in order to clarify the judgment. The latter is what we
a clarificatory judgment. In a clarificatory judgment, that is
where a judgment that has become final and executory but
has certain ambiguities with that judgment. The remedy of
the interested party is to file a motion for the rendition of a
clarificatory judgment. This clarificatory judgment is
different from a declaratory judgment. In declaratory
judgment the court will only tell the petitioner what his rights
and duties are under a certain will or contract. But in the case
of a statute or ordinance, the court will tell the petitioner
whether or not the statute or ordinance is unconstitutional or
not. So after the court has done its duty, there is no more
need for the prevailing party to return to the court in order to
move for the execution. We do not apply Rule 39 to a petition
for declaratory relief.
contemplated in ordinary civil actions where there is a right
violated by the defendant.
Distinguish declaratory judgment from ordinary
judgment.
A:
DECLARATORY JUDGMENT ORDINARY JUDGMENT
Declaratory judgment stands Ordinary judgment involves
by itself and no executory executor or coercive relief
process follows
Intended to determine any Intended to remedy or
question of construction or compensate injuries already
validity prior to breach or suffered
violation
What are the requisites of an action for declaratory
relief?
A:
1. Filing of Petition before there is a breach or violation
2. Subject matter is a deed, will, contract, written instrument,
statute, executive order, regulation or ordinance
Note: The enumeration of the subject matter is
exclusive, hence, an action not based on any of the
enumerated subject matters cannot be the proper
subject of declaratory relief. (Riano, Civil Procedure: A
Restatement for the Bar, p. 613, 2009 ed.)

So, that is the nature of a declaratory relief that makes it a

3. There is justiciable controversy
special civil action. There is really no cause of action as
4. Issue is ripe for judicial determination ( Republic v. Orbecido
III, G.R. No. 154380, October 5, 2005), i.e. litigation is
imminent and inevitable (Tolentino v. Board of Accountancy,
G.R. No. L-3062, September 28, 1951)
5. Adequate relief is not available through other means or
other forms of action or proceedings ( Ollada v. Central Bank,
G.R. No. L-11357, May 31, 1962)
6. The controversy is between persons whose interests are
adverse.
Q: When may an action for declaratory relief be
converted into an ordinary action?
A: After filing of petition for declaratory relief but before the
final termination of the case or rendition of judgment, a
breach or violation of an instrument, statute, executive order,
regulation or ordinance takes place. (Sec. 6, Rule 63)
Q: Distinguish Ordinary Civil Action from Special Civil
Action for Declaratory Relief.
A:
1. Ordinary civil action – plaintiff alleges that his right has
been violated by the defendant; judgment rendered is
coercive in character; a writ of execution may be executed
against the defeated party.
2. Special civil action of declaratory relief – an impending
violation is sufficient to file a declaratory relief; no execution
may be issued; the court merely makes a declaration.
The second procedural rule that we apply to declaratory relief
which is not followed in other special civil actions or in other
ordinary civil actions is the authority of the court not to
entertain a petition for declaratory relief. The court can
refuse to make a declaration of the rights of petitioner and
respondents on a deed or a contract on the ground that the
judgment will not bind the parties not impleaded in the
petition for declaratory relief. This shows that declaratory
relief is not in rem. It is purely a petition in personam. It
cannot bind other parties who had not been impleaded,
although these parties not so impleaded may be parties to the
contract or matter under litigation.
When may a court refuse to make a judicial declaration?
A: Court may motu propio or upon motion refuse based on the
following grounds:
1. A decision will not terminate the uncertainty or controversy
which gave rise to the action
2. Declaration or construction is not necessary and proper
under the circumstances
Note: Discretion to refuse does not extend to actions for
reformation of an instrument quiet title or remove clouds or
to consolidated ownership in a pacto de retro sale. (Regalado,
Remedial Law Compendium, Vol. I, p. 769, 2005 ed.)
Q: Can the court exercise discretion in application for
declaratory relief?
A:
1. In declaratory relief, the court is given the discretion to act
or not to act on the petition. It may therefore choose not to
construe the instrument sought to be construed or could
refrain from declaring the rights of the petitioner under the
deed or the law. A refusal of the court to declare rights or
construe an instrument is actually the functional equivalent of
the dismissal of the petition.
2. On the other hand, the court does not have the discretion
to refuse to act with respect to actions described as similar
remedies. Thus, in an action for reformation of an
instrument, to quiet or to consolidate ownership, the court
cannot refuse to render a judgment (Sec. 5, Rule 63).
Q: Is a third-party complaint proper in an action for
declaratory relief?
A: No. Because in a third-party complaint, such person seeks
to obtain contribution, indemnity, subrogation or other reliefs
and a declaratory relief is confined merely to the
interpretation of the terms of a contract. ( Commission of
Customs v. Cloribel, G.R. No. 21036, June 30, 1977).
Q: What are the instances wherein a declaratory relief is
unavailable?
A:
1. To obtain judicial declaration of citizenship;
2. To establish illegitimate filiation and determine hereditary
rights;
3. The subject of the action is a court decision;
4. Actions to resolve political questions;
5. Those determinative of the issues rather than a
construction of definite status, rights and relations;
6. Terms of assailed ordinances are not ambiguous or of
doubtful meaning;
7. In a petition to seek relief from a moot and academic
question;
8. Where the contract or statute on which action is based has
been breached;
9. When the petition is based on the happening of a
contingent event;
10. When the petitioner is not the real party in interest; and
11. Where the administrative remedies have not yet been
exhausted.
What is the competent court in a petition for declaratory
relief?
Petition for declaratory relief is an action incapable of
pecuniary estimation; hence RTC is the proper venue.
However, as to who is the competent court in “other similar
remedies”, take into account the provisions under BP 129:
~Reformation of instrument is cognizable solely by RTC as it is
incapable of pecuniary estimation.
~Quieting of Title is not necessarily under the RTC. Actions
involving title to property will depend on the value of the
property. Under BP 129, actions involving title to or possession
of the property may be cognizable by an RTC or MTC
depending upon the assessed value of the property involved.
~Consolidation of title involves real property, hence, assessed
value must be alleged to vest jurisdiction.
Q: What is an action for quieting title to real property?
A: This action is brought to remove a cloud on title to real
property or any interest therein. The action contemplates a
situation where the instrument or a record is apparently valid
or effective but is in truth and in fact invalid, ineffective,
voidable or unenforceable, and may be prejudicial to said title
to real property. This action is then brought to remove a cloud
on title to real property or any interest therein. It may also be
brought as a preventive remedy to prevent a cloud from being
cast upon title to real property or any interest therein (Art.
476, Civil Code).
Q: Is it required that the plaintiff be in the possession of
the property before an action is brought?
A: The plaintiff need not be in possession of the real property
before he may bring the action as long as he can show that he
has a legal or an equitable title to the property which is the
subject matter of the action (Art. 477, Civil Code).
Why do we need to file a special civil action for
consolidation of title?
In execution of judgment under Rule 39, if a real property is
sold at public auction by virtue of a levy on execution, the
highest bidder will not automatically get a title in his own
name, merely a certificate of sale from the sheriff, which
bidder must register such encumbrance in the RoD for
annotation to the title of the property. He must wait one
year. If there is no redemption after one year from
registration in the RoD, the sheriff will issue a final deed of
sale to the highest bidder and the highest bidder will have the
final deed of sale recorded in the RoD. The RoD will determine
whether the 1-year period has been met, and if there is no
redemption, the highest bidder will naturally be interested in
securing the title to the property in his name. The old title
(still in the name of the judgment debtor) will be cancelled,
and a new title will be issued in the name of the highest
bidder. The highest bidder does not have to file an action for
consolidation of title. The highest bidder will only secure from
the sheriff the final deed of sale. The RoD will simply cancel
the old title and issue a new title in the name of the highest
bidder. So, in Rule 39, there is no such thing as consolidation
of title as a special civil action.
This is also the procedure that is followed when a mortgage is
foreclosed. Once the mortgage is foreclosed, the property is
sold under auction to the highest bidder. The sheriff will issue
a certificate of sale to be registered in the RoD, and then wait
for the 1-year redemption period to expire. If there is no
redemption, the sheriff will again issue a final deed of sale.
And on the basis of that final deed of sale, the RoD will cancel
the title of the judgment mortgagor and issue a new title in
the name of the highest bidder.
So you will notice that under Rule 39 and even in the Mortgage
Law, in order to consolidate title, we do not require a special
civil action to consolidate title to be filed in court. The only
public officer who is going to deal with the interested party is
the RoD, who has the ministerial duty to issue a title if the
papers are in order, in this case a final deed of sale.
Why do we require an action to consolidate under Article
1607 of the NCC?
NCC Art. 1607. In case of real property, the
consolidation of ownership in the vendee by
virtue of the failure of the vendor to comply
with the provisions of article 1616 shall not be
recorded in the Registry of Property without a
judicial order, after the vendor has been duly
heard.
 have to observe the disputable presumption given by the NCC
NCC Art. 1616. The vendor cannot avail himself of that the deed of sale with right of redemption is one of an
the right of repurchase without returning to the equitable mortgage. So if we go to the RoD for consolidation
vendee the price of the sale, and in addition: of title, the RoD will simply tell the buyer of the property that
(1) The expenses of the contract, and any other the contract is one of equitable mortgage, not of sale, so
legitimate payments made by reason of the sale; there is a need to get a decision from the court declaring that
contract is really a genuine contract of sale with right of
(2) The necessary and useful expenses made on
redemption. That is the only purpose of this special civil action
the thing sold.
of consolidating of title under Art. 1607 NCC, to give to the
buyer in sale with right of redemption a chance to present
This is to obtain an order from the court for the RoD to
evidence to defeat that disputable presumption contained in
consolidate the title of a property subject to sale with right to
the NCC. If he is able to convince the court that the sale is a
redeem, although the factual antecedents are the same. In
genuine sale, the court will issue an order directing the RoD to
the NCC Art. 1607, if there is a right to redemption, it is called
cancel the title of the seller and issue a new title in the name
conventional redemption, not a legal redemption as that in
of the buyer.
Rule 39 and in foreclosure of mortgage. It is that classification
of redemption to conventional that makes the difference.
But if the petitioner/buyer fails to defeat the disputable
presumption that the contract is one of equitable mortgage,
A conventional redemption has also a period for 1 year. When
he can still obtain a title, but he must file another special civil
the 1-year period expires, the buyer of the property cannot
action. This time, the buyer must file an action for judicial
deal directly with the RoD. The reason why there is a need to
foreclosure of mortgage. Even if he is not able to obtain a
go to court in conventional redemption is that there is a
decision under Rule 63 in order to consolidate title under
provision in the NCC requiring it. It is explicitly stated in
Article 1607 NCC, that is not the end insofar as the buyer is
the NCC that sale with the right to redeem is not a sale
concerned since he is an equitable mortgagee, so he still has
but an equitable mortgage. So, insofar as the courts are
the right to foreclose the property. The only means where he
concerned, if the contract entered by the parties is a sale with
can foreclose the property is by availing of another special
right to redeem by way of conventional redemption, the NCC
civil action, which is called foreclosure of real estate mortgage
assumes (a disputable presumption) that the real agreement
under Rule 68. But the procedure for judicial foreclosure of
between the parties is not really a sale but an equitable
mortgage is quite lengthy, requiring 3 final orders of the
mortgage. Insofar as the NCC is concerned, the seller is not a
foreclosure court, a sale via public auction for the property,
genuine seller, only a mortgagor, and the buyer is the
and even if we assume that the mortgagee will become the
mortgagee of the property, notwithstanding the clear tone of
highest bidder, he will get the title in his own name only after
the deed of sale with right of redemption. Even the RoD will
the confirmation by the foreclosure court of the sale in his
favor is duly entered. As we will see later, judicial foreclosure
of mortgage, as a complement to a special civil action for
consolidation of title, is a 3-stage special civil action. Meaning
to say, that the foreclosure court is expected to make three
decisions/orders before the mortgagee can obtain a title in his
name.
Q: What is the purpose of an action brought to
consolidate ownership?
A: The action brought to consolidate ownership is not for the
purpose of consolidating the ownership of the property in the
person of the vendee or buyer but for the registration of
the property. The lapse of the redemption period without
the seller a retro exercising his right of redemption
consolidates ownership or title upon the person of the vendee
by operation of law. Art. 1607 requires the filing of the
petition to consolidate ownership because the law precludes
the registration of the consolidated title without judicial order
(Cruz vs. Leis, 327 SCRA 570).
Note: The concept of consolidation of ownership under Art.
1607, Civil Code, has its origin in the substantive provisions of
the law on sales. Under the law, a contract of sale may be
extinguished either by legal redemption (Art. 1619) or
conventional redemption (Art. 1601). Legal redemption
(retracto legal) is a statutory mandated redemption of a
property previously sold. For instance, a co-owner of a
property may exercise the right of redemption in case the
shares of all the other co-owners or any of them are sold to a
third person (Art. 1620). The owners of adjoining lands shall
have the right of redemption when a piece of rural land with a
size of one hectare or less is alienated (Art. 1621).
Conventional redemption (pacto de retro) sale is one that is
not mandated by the statute but one which takes place
because of the stipulation of the parties to the sale. The
period of redemption may be fixed by the parties in which
case the period cannot exceed ten (10) years from the date of
the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the date of the
contract (Art. 1606). When the redemption is not made within
the period agreed upon, in case the subject matter of the sale
is a real property, Art. 1607 provides that the consolidation of
ownership in the vendee shall not be recorded in the Registry
of Property without a judicial order, after the vendor has been
duly heard.
If we compare this procedure governing the’ other similar
remedies’ in Rule 63, you will notice right away that while the
court can outrightly refuse to entertain a petition for
declaratory relief, the court cannot outrightly refuse a
petition for consolidation of title, reformation of instrument
or quieting of title. This is expressly provided in Rule 63. So, if
the complaint is for the consolidation of title, the court will
have to follow the procedure outlined in ordinary civil cases,
which is not followed in declaratory relief. In declaratory
relief, if the court notices that not all contracting parties are
impleaded in the case, it can refuse to entertain the petition
as the judgment will not resolve the lawsuits which may be
filed as a result of this mistake.
If the court decides to entertain a petition for declaratory
relief, and during the pendency of the petition, the law took
effect or there is a violation committed as to the terms of the
contract, the court shall order the conversion of declaratory
relief into an ordinary civil action. Petitioner will have to
amend his complaint, as he will now allege that he has a right
and that right has been violated. The declaratory relief will
cease to be a special civil action. An ordinary civil action takes
its place, which is not possible in the actions covered by ‘other
similar remedies.’ The court does not enjoy discretion to
outrightly dismiss a petition for consolidation of title,
reformation of instrument or quieting of title.
It is settled when a person doubts his citizenship, he cannot
file a petition for declaratory relief. He can decide for himself
right away. He needs not go to court. He can register as a
voter, which then shall be tantamount to his recognition as a
Filipino. Or, he may opt to go through naturalization. If he
files a petition for declaratory relief as to his citizenship, the
court will dismiss outrightly the petition. This is because
declaratory relief is interested only in declaration of rights
and duties under a deed, will, contract or any other
instrument. There is no deed, contract or other instrument
which will be involved in determining whether a person is a
Filipino or not. If he is not a Filipino citizen, then he may need
to go through naturalization or administrative way of
acquiring citizenship, not through a petition for declaratory
relief to be filed before the RTC.
RULE 64 VS. 65 AND SPECIAL CIVIL ACTIONS IN WRIT OF
KALIKASAN
Rule 64 is always related to Rule 65. Although Rule 64 is a
mode of review, and the period to file for Rule 64 is different
from that in Rule 65, Rule 64 itself provides that in availing of
the mode of review provided in Rule 64, the petitioner should
adopt the pleading in Rule 65, a special civil action for
certiorari, prohibition and mandamus. We have a review
process from the COMELEC and COA, it is not strictly a special
civil action that will be filed, it is still a mode of review, but
using the pleadings outlined in Rule 65.
Rule 64 speaks of a mode of appeal from a judgment or
final order of COMELEC and CoA. Although a mode of
review, Rule 64 provides that petitioner should adopt the
pleading in Rule 65. Rule 65 is about a special civil action
for certiorari, prohibition and mandamus.
Q: What is the mode of review for judgments and final
orders of the COMELEC and COA?
A: The petition may be brought by the aggrieved party to the
Supreme Court on Certiorari under Rule 65, except otherwise
provided.
Note: Rule 65 applies to the mode of review under Rule
64.Said mode of review is based on Article IX-A of the 1987
Constitution providing that the proper mode of review is
certiorari under Rule 65 to be filed before the Supreme Court.
Under R.A. 7902 the Court of Appeals has jurisdiction over all
adjudications of the Civil Service Commission.
Note: The order to comment under Sec. 6, Rule 64 in case the Sandiganbayan has certiorari jurisdiction under Rule 65.
Supreme Court finds the petition sufficient in form and
substance is equivalent to summons in ordinary civil action. Q: Distinguish Rule 64 from Rule 65.
A:
Q: What is the period for filing certiorari as referred to Rule 64 Rule 65
in Rule 64?
Directed only to the Directed to any tribunal,
A: The petition for certiorari referred to in Rule 64 shall be judgments, final orders or board or officers exercising
filed within 30 days from notice of the judgment, final resolutions of the COMELEC judicial or quasi-judicial
order or resolution of the COMELEC and the COA sought to and COA; functions;
be reviewed (Sec. 3, Rule 64).
Must be filed within 30 days Must be filed within 60 days
from notice of judgment or from notice of judgment or
Note: While Rule 64 makes reference to the certiorari under resolution resolution
Rule 65, the period for the filing of the petition for If MR is denied, the If MR is denied, the
certiorari assailing the judgment of the COMELEC and aggrieved party may file the aggrieved party will have
COA is shorter than that provided under Rule 65 petition within the remaining another 60 days within which
period, but which shall not be to file the petition counted
Petitioner should not move for an extension for a less than 5 days. from the notice of denial.
petition under Rule 65. It is inextensible.
Distinguish certiorari under Rule 65 and certiorari under
Cite some distinctions between certiorari in Rule 45, 64 Rule 45.
and 65. A:
Rule 45 is appeal by certiorari Rule 65 Rule 45
Rule 64 is appeal to SC with reference to Rule 65 pertaining to Findings of fact of Court of GR: Findings of fact of CA
final orders, resolutions or decisions rendered by CoA or Appeals are not conclusive or are conclusive
COMELEC acting as quasi-judicial bodies. binding upon SC
Rule 65 is a special civil action of certiorari, prohibition and Involves question of Involves question of law
mandamus. jurisdiction
Mode of appeal Mode of review
Rule 65 – competent court is RTC, CA or SC
Directed against an Involves the review of the
Under COMELEC CODE, COMELEC has certiorari jurisdiction interlocutory order of a judgment final orders or
under Rule 65.
court or where there is no resolutions of the CA, Note: The remedies of appeal and certiorari are mutually
appeal or any other plain, Sandiganbayan, CTA, RTC or exclusive and not alternative or successive. The antithetic
speedy or adequate remedy other courts character of appeal and certiorari has been generally
Filed not later than 60 days Filed within 15 days from recognized and observed save only on those rare instances
from notice of judgment, notice of judgment, final when appeal is satisfactorily shown to be an inadequate
order or resolution appealed order or resolution appealed remedy. Thus, a petitioner must show valid reasons why the
from from issues raised in his petition for certiorari could not have been
Unless a writ of preliminary Stays the judgment or order raised on appeal (Banco Filipino Savings and Mortgage Bank
injunction or temporary appealed from vs. CA, 334 SCRA 305).
restraining order is issued, it
does not stay the challenged Certiorari as a Mode of Certiorari as a Special Civil
proceeding Appeal (Rule 45) Action (Rule 65)
The judge, court, quasi- The appellant and the Called petition for review on A special civil action that is
judicial agency, tribunal, appellee are the original certiorari, is a mode of an original action and not a
corporation, board, officer parties to the action, and the appeal, which is but a mode of appeal, and not a
or person shall be public lower court or quasi-judicial continuation of the appellate part of the appellate process
respondents who are agency is not impleaded process over the original but an independent action.
impleaded in the action case;
Motion for reconsideration Motion for reconsideration is Seeks to review final May be directed against an
or for new trial is required. not required judgments or final orders; interlocutory order of the
If a motion for court or where not appeal or
reconsideration or new trial plain or speedy remedy
is filed, another 60 days shall available in the ordinary
be given to the petitioner course of law
(A.M. No. 02-03-SC)
Court exercises original The court is in the exercise
jurisdiction of its appellate jurisdiction DISTINCTIONS BETWEEN CERTIORARI UNDER RULES 45,
and power of review. 64, AND 65
Filed with the RTC, CA, Filed with the SC Rule 65 Rule 64 for Review of
Sandiganbayan or COMELEC Certiorari, COMELEC and judgment, final
Prohibition and COA orders or
resolutions of
Mandamus other tribunals, judicial bodies
persons and (final orders or
officer (Rule 45) judgments
Special civil action Appeal to the SC Petition for Under BP 129: SC CA, SC
for certiorari, using Rule 65 from Review or Appeal RTC, CA or SC has
prohibition and the COMELEC En by Certiorari; concurrent and
mandamus; Banc original
Called petition for jurisdiction;
A special civil review on under special laws:
action that is an certiorari, is a COMELEC and
original action and mode of appeal, Sandiganbayan has
not a mode of which is but a special certiorari
appeal, and not a continuation of jurisdiction
part of the the appellate BP 129: Original Appellate Appellate
appellate process process over the and Concurrent
but an original case; Jurisdiction (RTC,
independent CA and SC)
action. The petitioner has Failure of SC may deny the
May be directed Directed only to Review of a choice to file in petitioner to decision motu
against an the judgments, judgment, final the RTC, and if an comply with the propio on the
interlocutory final orders or orders or adverse decision is formal ground that the
order of the court resolutions of the resolutions of the given, he can requirements appeal is without
or where not COMELEC and CA, elevate it to the under Sec. 5 Rule merit, or is
appeal or plain or COA; Sandiganbayan, CA, and then the 64 will cause the prosecuted
speedy remedy CTA, RTC or other SC. If directly petition to be manifestly for
available in the Rules of the courts filed in the SC, SC dismissed. delay, or that the
ordinary course of COMELEC states has the questions raised
law that only decisions discretion therein are too
of the En Banc whether to unsubstantial to
shall be appealable outrightly require
in the SC) and CoA dismiss the consideration.
acting as quasi- petition or
remand it to the (Motion for in Rule 64 granted for
CA because of extension of justifiable reasons
insufficiency in period to file is
form and/or not allowed)
substance in Motion for The filing of Motion for
accordance with reconsideration or Motion for reconsideration is
the principle of for new trial is reconsideration or not required
hierarchy of required. for new trial, if
courts. allowed under the
Raises questions Petition is based Petition is based If a motion for procedural rules of
of jurisdiction on questions of on questions of reconsideration or the Commission,
because a tribunal, law law new trial is filed, shall interrupt
board or officer another 60 days period fixed
exercising judicial shall be given to
or quasi-judicial the petitioner
functions has (Fresh Period
acted without Rule/Neypes
jurisdiction or in Doctrine) (A.M.
excess of No. 02-03-SC)
jurisdiction or with
Unless a writ of Does not stay the Stays the
grave abuse of
preliminary execution unless judgment or order
discretion
injunction or SC shall direct appealed from
amounting to lack
temporary otherwise upon
of jurisdiction;
restraining order such terms as it
Filed not later Filed within 30 Filed within 15 is issued, it does may deem just
than 60 days from days from notice days from notice not stay the
notice of of judgment, final of judgment, final challenged
judgment, order order or resolution order or resolution proceeding
or resolution sought to be appealed from
The judge, court, The COMELEC and The appellant and
appealed from reviewed
quasi-judicial COA shall be public the appellee are
Extension no No extension of Extension of 30 agency, tribunal, respondents who the original parties
longer allowed; period mentioned days may be corporation, are impleaded in to the action, and
 board, officer or the action the lower court or A: (Sec. 6, Rule 64)
person shall be quasi-judicial 1. Petition is not sufficient in form and substance ( Sec. 5,
public respondents agency is not Rule 64)
who are impleaded impleaded 2. Petition was filed for purpose of delay
in the action 3. Issue is unsubstantial
Court exercises The court is in the The court is in the
original exercise of its exercise of its
Q: What are the grounds for the filing of a petition for
jurisdiction appellate appellate
certiorari?
jurisdiction and jurisdiction and
A: That a tribunal, board or officer exercising judicial or
power of review power of review
quasi-judicial functions acted:
1. Without or in excess of jurisdiction
SC, CA and RTC have original jurisdiction over petitions under
2. In grave abuse of discretion amounting to lack or excess of
Rule 65. Thus, there is concurrence of jurisdiction among
jurisdiction
these three courts. Theoretically, petitioner has a choice as to
where to file. The law does not compel him to file a petition
first in the RTC, then the CA, and finally in the SC. There is Note: It is commenced by the filing of a verified petition
no such provision in BP 129 and the Constitution. accompanied by certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto and a sworn
However, SC had sought to prevent being swamped by
certification of non-forum shopping. (Sec. 1, Rule 65).
petitions under Rule 65. To remedy the abuse by petitioners,
SC devised the principle of hierarchy of courts under Section
4 of Rule 65. This will limit the choice that theoretically a Q: When is certiorari under Rule 65 unavailable?
petitioner has. Effectively, petitioners are prohibited from A:
going directly to the SC under Rule 65. Petitioner must file 1. Summary procedure
first in the RTC or in the CA. If a petition was filed directly in 2. Writ of Amparo
SC, it will outrightly dismiss a petition if such petition is 3. Writ of Habeas Data
insufficient in form or substance. Even if the petition is well-
4. Small claims cases (Riano, Civil Procedure: A Restatement
crafted, a single omission, such as the PTR number, shall
for the Bar, p. 629, 2009 ed.)
dismiss it for being insufficient in form.

Q: When is prohibition issued?

Q: What are the grounds for the outright dismissal of the
A:
petition?
GR: Prohibition does not ordinarily lie to restrain an act which
is already fait accompli.
XPN: It will lie to prevent the creation of a new province by
those in the corridors of power who could avoid judicial
intervention and review by merely speedily and stealthily
completing the commission of such illegality. (Tan v.
COMELEC, G.R. No. 73155, July 11, 1986)
Note: Prohibition and not mandamus, is the remedy where a
motion to dismiss is wrongfully denied (Enriquez v. Macadaeg,
G.R. No. L-2422, Sept. 30, 1949)
Is it fatal for a petitioner to file a petition for certiorari,
although the true remedy is a petition for prohibition?
For instance, where a motion to dismiss is filed by the
defendant on the ground of absence of jurisdiction over the
subject matter of the case. Said motion was denied. The
defendant could appeal to the higher court via a petition under
Rule 65.
We do not follow Rule 16 which tells the defendant that when
his motion to dismiss is denied, he has to file an answer within
the remaining period. The SC has recognized the propriety of
filing a petition for certiorari, prohibition or mandamus if a
motion to dismiss founded on lack of jurisdiction over the
subject matter has been denied.
The petitioner files a petition for certiorari in the CA or SC.
The true remedy, according to the SC, is a petition for
prohibition, not a certiorari. From the facts stated above, a
prohibition is the correct remedy. As the
petitioner/defendant had filed a petition for certiorari, can
CA/SC outrightly deny the petition because it is the wrong
remedy? SC said no. The petition for certiorari should instead
be treated as a petition for prohibition. So it seems under this
attitude of liberal interpretation of statutes, it is not fatal for
a petitioner to choose the remedy provided under Rule 65.
Remember that certiorari is different from prohibition and
mandamus, although they are all contained in one Rule. The
SC will simply treat the petition for certiorari as a petition for
prohibition. If you will analyze the requisites of a petition for
certiorari and prohibition, they are practically the same. There
is not much difference between the concept given in Section 1
Rule 65 (Certiorari) and Section 2 Rule 65 (Prohibition). The
only differences is that in certiorari, the petitioner asks that
the judgment or interlocutory order be annulled or set aside;
in prohibition, the petitioner simply asks the prohibition court
to prevent the respondent court from going ahead with the
proceedings, and in prohibiting the respondent court, the
prohibition court will be effectively telling the respondent
court that the denial, the interlocutory order or the judgment
rendered therein should be set aside and annulled because it is
a wrong final order or wrong interlocutory order.
CERTIORARI PROHIBITION MANDAMUS
That the petition The petition is The plaintiff has a
is directed against directed against a clear legal right to
a tribunal, board tribunal, the act demanded;
or officer corporation, board
exercising judicial or person
or quasi-judicial exercising judicial, certification of certification of
functions; quasi-judicial, or non-forum non-forum
ministerial shopping under shopping under
functions; Rule 46. Rule 46.
The tribunal, The tribunal, It must be the Prohibition is an Mandamus is an Main action for
board or officer corporation, board duty of the extraordinary writ extraordinary writ injunction seeks to
has acted without, or person must defendant to commanding a commanding a enjoin the
or in excess of have acted perform the act, tribunal, tribunal, defendant from
jurisdiction or with without or in which is corporation, board corporation, board the commission or
abuse of excess of ministerial and not or person, or person, to do continuance of a
discretion jurisdiction or with discretionary, whether an act required to specific act, or to
amounting to lack grave abuse of because the same exercising judicial, be done: compel a particular
or excess or discretion is mandated by quasi-judicial or (a) When he act in violation of
jurisdiction amounting to lack law; ministerial unlawfully the rights of the
of jurisdiction; functions, to neglects the applicant.
There is no appeal There is no appeal The defendant desist from performance of an Preliminary
or any plain, or any plain, unlawfully further act which the law injunction is a
speedy and speedy and neglects the proceedings when specifically provisional remedy
adequate remedy adequate remedy performance of said proceedings enjoins as a duty, to preserve the
in the ordinary in the ordinary the duty enjoined are without or in and there is no status quo and
course of law. course of law. by law; excess of its other plain, prevent future
Accompanied by a Accompanied by a There is no appeal jurisdiction, or speedy and wrongs in order to
certified true copy certified true copy or any plain, with abuse of its adequate remedy preserve and
of the judgment of the judgment speedy and discretion, there in the ordinary protect certain
or order subject of or order subject of adequate remedy being no appeal or course of law; or interests or rights
the petition, the petition, in the ordinary any other plain, (b) When one during the
copies of all copies of all course of law. speedy and unlawfully pendency of an
pleadings and pleadings and adequate remedy excludes another action.
documents documents in the ordinary from the use and
relevant and relevant and course of law enjoyment of a
pertinent thereto, pertinent thereto, (Sec. 2, Rule 65). right or office to
and sworn and sworn which the other is
 entitled (Sec. 3, has jurisdiction has jurisdiction resides.
Rule 65). over the territorial over the territorial
Special civil action Special civil action Ordinary civil area where area where
action respondent respondent
To prevent an To compel the For the defendant resides. resides.
encroachment, performance of a either to refrain
excess, usurpation ministerial and from an act or to But in our example, when a motion to dismiss founded on lack
or assumption of legal duty; perform not of jurisdiction is denied, it is also correct for the petitioner to
jurisdiction; necessarily a legal make use right away of Rule 65. If he immediately files a
and ministerial petition for certiorari either in the CA or SC, that petition for
duty; certiorari will not be denied because it is not compliant with
May be directed May be directed Directed against a the requirements of Sections 1 and 2 Rule 65, that there is
against entities against judicial party “no appeal, or any plain, speedy, and adequate remedy in the
exercising judicial and non-judicial ordinary course of law.” This phrase serves as an essential
or quasi-judicial, entities requisite before we can properly file a petition under Rule 65.
or ministerial In fact, it is this phrase which is the source of the principle
functions that we learned that in Rule 65, a motion for reconsideration
Extends to Extends only to Does not is a MUST. This is not expressly mentioned in Rule 65. Motion
discretionary ministerial necessarily extend for reconsideration is not even mentioned in Rule 65. A
functions functions to ministerial, motion for reconsideration is always a plain, speedy and
discretionary or adequate remedy in the ordinary course of law.
legal functions;
Always the main Always the main May be the main Note: General Rule: Motion for reconsideration is a
action action action or just a condition precedent in the filing of a petition for
provisional remedy certiorari under Rule 65. Motion for reconsideration is a
plain and speedy remedy available prior to petition under
May be brought in May be brought in May be brought in
Rule 65.
the Supreme the Supreme the Regional Trial
Court, Court of Court, Court of Court which has
Appeals, Appeals, jurisdiction over In Rule 65, if we examine the caption of a petition under Rule
Sandiganbayan, or Sandiganbayan, or the territorial area 65, we will discover that there are at least 2 respondents, one
in the Regional in the Regional where respondent is the private respondent, the other is the public respondent.
Trial Court which Trial Court which The public respondent is the agency, court or officer/person
who exercises judicial or quasi-judicial functions (in case of
prohibition, public respondent is the agency, court or
officer/person who exercises judicial , quasi-judicial or
ministerial functions). In other words, we always involve a
public officer or agency or court on or officer/person who
exercises judicial , quasi-judicial or ministerial functions
under Rule 65. We cannot get a petition for certiorari under
Rule 65 with only the private respondent. We must implead
the public respondent.
Although the rules describe the public respondent as a nominal
party, it is in fact an indispensible party under Rule 65,
because it is the final order or judgment that it had issued
that is being assailed or challenged. The reason why Rule 65
calls the public respondent only as a nominal party is because
in Rule 65 itself, it is provided that the public respondent is
not authorized to enter his appearance and to defend himself
before the certiorari court. The fate of the public respondent
lies in the hands of the private respondent. It is the private
respondent who will argue before the higher court and explain
the correctness of the interlocutory order or judgment that is
being assailed under Rule 65. It is only in rare instances where
the higher court will allow the public respondent to argue on
his own behalf or submit his own papers in the certiorari
court. He should always rely on the papers and pleadings that
are submitted by the private respondent.
Because of the inherent nature of the petition under Rule 65,
that there is always a public respondent, the petition under
Rule 65 does not have to comply with that condition precedent
of prior barangay conciliation. This is one of the exceptions
given in the LGC, where the action involves a government
officer or employee in the performance of his duty.
And the grounds of course are very strictly interpreted. In
Rule 65 Sections 1 and 2, the ground is that the public
respondent has acted without jurisdiction, in excess of
jurisdiction or with grave abuse of discretion amounting to
lack of jurisdiction.
The definition of Grave abuse of discretion amounting to lack
or excess of jurisdiction is a very simple definition given by
the SC, when the public respondent acts whimsically, despotic
and/or arbitrarily. The SC did not elaborate on whimsical,
despotic or arbitrary, so it would have to be resolved on a
case-to-case basis.
For instance, a case is pending in the RTC for the
collection of an indebtedness. The plaintiff applies for
the issuance of a writ of preliminary attachment. The
court grants and issues the writ. Does the RTC act
arbitrarily, acting gravely in abuse of its discretion if it
grants and issues the writ of preliminary attachment?
Yes, if that complaint does not fall any one of the cases
mentioned in Rule 57:
(a) In an action for the recovery of a specified
amount of money or damages, other than moral
and exemplary, on a cause of action arising from
law, contract, quasi-contract, delict or quasi-
delict against a party who is about to depart
from the Philippines with intent to defraud his
creditors;
 (b) In an action for money or property embezzled
or fraudulently misapplied or converted to his
own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker,
agent, or clerk, in the course of his employment
as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;
(c) In an action to recover the possession of
property unjustly or fraudulently taken, detained
or converted, when the property, or any part
thereof, has been concealed, removed, or
disposed of to prevent its being found or taken
by the applicant or an authorized person;
(d) In an action against a party who has been
guilty of a fraud in contracting the debt or
incurring the obligation upon which the action is
brought, or in the performance thereof;
(e) In an action against a party who has removed
or disposed of his property, or is about to do so,
with intent to defraud his creditors; or
(f) In an action against a party who does not
reside and is not found in the Philippines, or on
whom summons may be served by publication.
No, if the case does not fall under the above-mentioned cases
under Rule 57 Section 1. Thus, the court would have acted in
grave abuse of its discretion amounting to lack or excess of
jurisdiction.
Hence, in the issuance of provisionary remedies or orders, it
could happen that a court will gravely abuse its discretion
amounting to lack or excess of jurisdiction, a very despotic
and arbitrary act of a court.
For instance, the defendant files an answer containing a
negative defense properly crafted. Then the court grants a
summary judgment or rendered a judgment on the pleadings.
That is an arbitrary act of the court. But if the decision
rendered is a summary judgment or judgment on the
pleadings, Rule 65 may not be a correct remedy. This is
because under our Rules, because from a judgment, the
remedy is to appeal from the judgment. Whenever there is an
appeal available, you better forget Rule 65, because it is
available only when there is no appeal or other plain, speedy
and adequate remedy available in the ordinary course of law.
This is the rule that we must always follow. Although, there
are rare instances that the SC allowed a petition for Rule 65
although appeal is still available. If you will remember, there
are certain exceptions to the general rule that a motion for
reconsideration is a must before making use of Rule 65. There
are also rare instances where the court allowed a petition
under Rule 65 even if appeal was still available, the reason
being that in certain instances, appeal is not a plain, speedy
and adequate remedy available in the ordinary course of law.
Q: Is it an absolute rule that before recourse to certiorari
is taken a motion for reconsideration must be filed?
A:
GR: Petition for certiorari will not be entertained unless
the public respondent has been given first the
opportunity through a motion for reconsideration to
correct the error being imputed to him.
XPNs: A prior motion for reconsideration is not
necessary to entertain a petition for certiorari where:
1. Order is a patent nullity, as where the court a
quo has no jurisdiction;
2. Questions raised in the certiorari proceedings
have been duly raised and
passed upon by the lower court, or are the same as
those raised and passed upon in the lower court;
3. 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. Under the circumstances, a motion for
reconsideration would be useless;
5. Petitioner was deprived of due process and there
is extreme urgency for relief;
6. 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. Proceedings in the lower court are a nullity for
lack of due process;
8. Proceedings were ex parte or in which the
petitioner had no opportunity to object; and
9. Issue raised is one purely of law or where public
interest is involved.
Can a petition under Rule 65 that is filed to challenge an
interlocutory order or judgment be enough to suspend all
proceedings in the lower court and await the decision of
the certiorari court on the petition for certiorari?
If the litigant is aggrieved by an order or judgment that
is inappealable, it is not allowed under Rule 65 for the
trial court to suspend proceedings in the case pending
before it. Proceedings will only be suspended if the
higher court issues TRO or writ of PI. Thus, it is practical
to ask along with the petition for an issuance of TRO or
writ of PI.
Take note of the modifications in Rule 65 concerning the
abuse of parties and lawyers in using petition for certiorari,
prohibition or mandamus. It is under the principle of res ipsa
loquitur. In the past, lawyers usually file such petitions
whenever motions are denied, citing abuse of discretion
whereas under Rule 65, the required ground is GRAVE
ABUSE of discretion. In order to prevent this practice, SC
incorporated in Rule 65 the application of the civil law
principle of res ipsa loquitur. If a lawyer and his client will
go up to CA or SC under Rule 65, and the court resolves
that the petition was manifestly without merit or for
purposes of delay, the lawyer and client will be held in
contempt of court for filing such manifestly
unmeritorious petition or to pay a solidary debtor treble
costs, and there may be administrative sanctions against
the lawyer.
If the writ of mandamus is issued as requested, there is
propriety of awarding damages in favor of the
petitioner, so it is automatically awarded under Section 3
of Rule 65.In petitions for certiorari, petitioner may
include petition for award of damages. If proven, SC may
award such damages.
SEC. 3. Petition for mandamus.—When any
tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act
which the law specifically enjoins as a duty
resulting from an office, trust, or station, or
unlawfully excludes another from the use and
enjoyment of a right or office to which such
other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may
file a verified petition in the proper court,
alleging the facts with certainty and praying that
judgment be rendered commanding the
respondent, immediately or at some other time
to be 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.
The petition shall also contain a sworn
certification of non-forum shopping as provided
in the third paragraph of section 3, Rule 46.
Rule 65 does not specifically provide for award of damages
under Sections 1 and 2 (Certiorari and Prohibition
respectively). But the SC resolved that in proper instances, if
there is a prayer for damages incorporated in a petition for
certiorari or prohibition, there is nothing wrong if the court
grants the writ of certiorari or mandamus and award damages
in favor of the petitioner, although none is provided for it in
Sections 1 and 2.The justification given by the SC is that in
a petition for certiorari or prohibition, there is always
that prayer for any additional relief which the court will
deem just and equitable. SC said that is enough justification
for the award of damages, so long as the petitioner is able to
present proof of damages.
Why do we consider Rule 65 as a special civil action?
1. Procedurally, the court can dismiss the petition for
insufficiency in form and substance, which has a very
broad in interpretation. So even if the SC has jurisdiction,
it can outrightly dismiss the petition.
2.If the court did not dismiss the petition outrightly, the
court may not issue summons. It may instead issue an
order to comment. Once a comment is submitted, the court
acquires jurisdiction over that party. (Similarly, no summons
is issued in cases of interpleader and declaratory relief and
other similar remedies.)
3. Since the court does not issue summons, issuing instead a
plain order to comment within a fixed period, if no comment
is submitted, the court cannot declare respondent in
default.
4. Under Rule 65, the court will not conduct a pre-trial or
a trial. The issue is a very limited issue. It is not only a mere
question of law raised in Rule 65. That question of law is one
of law that it is limited to the issue of jurisdiction
(without or in excess with grave abuse of discretion). There
could be several questions of law that could be raised. But,
that question of law may not involve jurisdiction at all. But in
Rule 65, the issue is one of law and it is limited to the issue of
jurisdiction, whether or not the respondent committed grave
abuse of discretion amounting to lack or excess of
jurisdiction.

Also , the submission of the petition or Order to comment

requires parties to submit the pleadings already submitted in
the lower courts. So, the court will just analyze the
documents presented before it via the documents attached to
the petition or the comment, and thus there is no need for a
trial.

What is the remedy of the aggrieved party in a petition

for certiorari?
The remedy is appeal, either by petition for review or petition
on certiorari (Rule 45).

TABLE OF COMPARISON FOR THE WRITS OF HABEAS

CORPUS, AMPARO, HABEAS DATA AND KALIKASAN
HABEAS AMPARO HABEAS KALIKASAN
CORPUS DATA
Literal interpretation
You have To protect You have the It is a Filipino and receive regarding the balanced and
the body data word which whatsoeve person, healthful
means r the court family, home ecology is
“nature” in or judge and violated, or
English awarding corresponden threatened
Governing Rule the writ ce of the with violation
Rule 102 A.M. No. 07- A.M. No. 08- A.M. No. 09- shall aggrieved by an unlawful
9-12-SC 1-16-SC 6-8-SC consider in party. act or
that omission of a
Description
behalf. public official
Writ Remedy Remedy Special
or employee,
directed to available to available to remedy
or private
the person any person any person available
individual or
detaining whose right whose right to a natural or entity,
another, to life, to privacy in juridical involving
commandin liberty, and life, liberty or person, entity environmental
g him to security is security is authorized by damage of
produce violated or violated or law, people’s such
the body threatened threatened by organization, magnitude as
of the with violation an unlawful non- to prejudice
prisoner at by an act or governmental the life,
a unlawful act omission of a organization, health or
designated or omission of public official or any public property of
time and a public or employee, interest group inhabitants in
place, with official or or of a private accredited by two or more
the day employee, or individual or or registered cities or
and cause of a private entity with any provinces.
of his individual or engaged in government
Coverage
capture entity. the gathering, agency, on
and collecting, or Involves Involves the Involves the Constitutional
behalf of
detention, storing of the right right to life, right to right to a
persons whose
to do, data or to liberty liberty, and privacy in life, balanced and
constitutional
submit to, information of and security of liberty, and healthful
right to a
rightful the aggrieved security of ecology. member thereof; CA information is
custody by party and the aggrieved thereof. or any justice gathered,
the covers party and thereof; SC or collected or
aggrieved extralegal covers any justice stored, at the
party. killings and extralegal thereof. option of the
enforced killings and petitioner; or
disappearance enforced with SC, CA
s. disappearance or SB when
s. the action
Rights violated concerns
There is an There is an There is an There is an public data
actual actual or actual or actual or files or
violation of threatened threatened threatened government
the violation of violation of violation of offices.
aggrieved the aggrieved the aggrieved one’s right to Who may file a petition
party’s party’s right. party’s right. a healthful In the In the A natural or
right. and balanced 1. Party for following following juridical
ecology whose order: order: person, entity
involving relief it is 1. Any 1. Any authorized by
environmental intended; member of aggrieved law, people’s
damage. or the party; organization,
Where to file immediate 2. However, in non-
RTC or any RTC of the RTC where In SC or any family cases of governmental
2. Any
organization,
judge place where the petitioner stations of person on 2. Any extralegal
thereof, the threat, or respondent the CA. his behalf ascendant, killings and or any public
CA or any act or resides, or descendant, enforced interest
member omission was that which or collateral disappearance group
thereof in committed or has relative of the s: accredited by
instances any of its jurisdiction aggrieved a. Any or registered
authorized elements over the place party within member of with any
by law; or occurred; SB where the the 4th civil the government
SC or any or any justice data or degree of immediate agency.
 consanguinity family HABEAS AMPARO HABEAS KALIKASAN
or affinity b. Any CORPUS DATA
3. Any ascendant, Enforceability of the writ
concerned descendant, If granted Enforceable anywhere in the Enforceable
citizen, or collateral by SC or Philippines regardless of who anywhere in
organization, relative of the CA: issued the same the Philippines
association or aggrieved enforceabl
institution party within e
the 4th civil anywhere
degree of In the
consanguinity Philippines
or affinity ;
Respondent If granted
May or Public official Public official Public official by RTC:
may not be or employee or employee or employee, enforceabl
an officer. or a private or a private private e only
individual or individual or individual or within the
entity. entity entity. judicial
engaged in district
the gathering, Docket fees
collecting or Payment is Petitioner is Payment is Petitioner is
storing of required exempted required. exempted
data or
Note: Rule from Note: Rule on from payment
information
on indigent payment indigent
regarding the
petitioner petitioner
person,
applies. applies.
family, home
Service of writ
and
corresponden Served Served upon Served upon Served upon
ce of the upon the the the the
aggrieved person to respondent respondent respondent
party. whom it is personally; or personally; or personally; or
directed, substituted substituted substituted respondent together with writ.
and if not service service service. shall file a supporting
found or verified affidavits
has not the written return within 5
prisoner in together with working days
his supporting from service
custody, affidavits. of the writ,
to the which period
other may be
person reasonably
having or extended by
exercising the Court for
such justifiable
custody reasons.
Person who makes the return Return
Officer by Respondent Respondent Respondent If granted If issued by If issued by If issued by
whom the by the SC RTC: RTC: SC, returnable
prisoner is or CA: returnable returnable before such
imprisoned returnable before such before such court or CA.
or the before the court; court;
person in court or If issued by If issued by
whose any SB or CA or SB or CA or
custody member or any of their any of their
the before RTC justices: justices:
prisoner is or any returnable returnable
found judge before such before such
When to file a return thereof; court or to court or to
On the day Within 5 The Within non- If granted any RTC of any RTC of
specified working days respondent extendible by RTC: the place the place
in the writ after service shall file a period of 10 returnable where the where the
of the writ, verified days after the before threat, act or petitioner or
the written return service of such court omission was respondent
committed or resides or gathered,
any of its that which collected or
elements has stored
occurred; jurisdiction General denial
If issued by over the place Not Not allowed. Not allowed. Not allowed.
SC or any of where the prohibited.
its justices: data or
HABEAS AMPARO HABEAS KALIKASAN
returnable information is
CORPUS DATA
before such gathered,
Liability of the person to whom the writ is directed if
court, or collected or
he refuses to make a return
before SB, stored;
If issued by Forfeit to Imprisonment Imprisonment Indirect
CA, or to any
SC or any of the or fine for or fine for contempt.
RTC of the
its aggrieved committing committing
place where
party the contempt. contempt.
the threat, justices:
sum of
act or returnable
P1000, and
omission was before such
may also
committed or court, or
be
any of its before SB,
punished
elements CA, or to any
for
occurred RTC of the
contempt.
place where
the petitioner Hearing
or respondent Date and Summary Summary The hearing
resides or time of hearing shall hearing shall including the
that which hearing is be conducted be conducted preliminary
has specified not later than not later than conference
jurisdiction in the writ. 7 days from 10 working shall not
over the place the date of days from the extend
where the issuance of date of beyond sixty
data or the writ. issuance of (60) days and
information is the writ. shall be given
the same Period of appeal
priority as
petitions for
the writs of
habeas
corpus,
amparo and
habeas data.
Within 48 5 working 5 working Within fifteen 12. Petition for certiorari, declare
hours from days from the days from the (15) days from mandamus or prohibition respondent in
notice of date of notice date of notice the date of against any interlocutory default.
the of the of the notice of the order.
judgment adverse judgment or adverse
or final judgment. final order. judgment or
order denial of
appealed motion for
from. reconsideratio
n.
Prohibited pleadings
None 1. Motion to dismiss; 1. Motion to
2. Motion for extension of dismiss;
time to file opposition, 2. Motion for
affidavit, position paper and extension of
other pleadings; time to file
3. Dilatory motion for return;
postponement; 3. Motion for
4. Motion for a bill of postponement
particulars; ;
5. Counterclaim or cross - 4. Motion for SPECIAL CIVIL ACTIONS IN THE KALIKASAN CIRCULAR
claim; a bill of
The Writ of Kalikasan is a mini RoC for environmental cases.
6. Third - party complaint; particulars;
By itself, the circular appears to contain all rules pertaining to
7. Reply; 5.
civil cases arising out of Kalikasan laws as well as criminal
8. Motion to declare Counterclaim procedures.
or cross-
respondent in default;
claim;
9. Intervention; 2 special civil actions:
6. Third-party
10. Memorandum; ~Writ of Kalikasan
complaint;
11. Motion for reconsideration ~Petition for Continuing Mandamus
7. Reply; and
of interlocutory orders or
8. Motion to
interim relief orders; and
Why does the Kalikasan circular consider a petition for a
writ of kalikasan and continuing mandamus as a special
civil action?
It is because of the fact that although these are governed by
ordinary rules of procedure, there are instances where there
is a special procedure which has to be followed in hearing said
special proceeding.
A Petition of a Writ of Kalikasan as a special civil action is
entirely different from ordinary civil cases. The sheer number
of parties, as well as the magnitude of the prejudice that
could be suffered by the petitioners (the threat to their life,
liberty and property),is such that they are the inhabitants of
at least 2 or more provinces or cities. If we talk about
numbers, the actual number of inhabitants in a typical
province could number in the hundreds of thousands. This is a
perfect example of a class suit. They stand to be prejudiced in
their right to their life, liberty and property by a violation or a
threat to violate environmental laws by a natural person or
juridical entity. Even if there is just a petitioner, a juridical
entity, an NGO or an accredited public interest group, they
can file a petition on behalf of two or more provinces or cities.
The parties are so numerous that it will be impractical for all
of them to be brought before the court.
To make matters simple procedurally, take note that the
procedures in Habeas Corpus and Amparo as special
proceedings are practically the same procedures followed in
Kalikasan cases.
Upon the filing of the petition, and the court analyzes the
petition, and the court is convinced of the need for the writ to
be issued, the writ will be immediately issued without need of
hearing the side of the respondents. The writ can be issued
right away by the court as long as the allegations in the
petition are complete, that petition is meritorious by itself.
The court may issue also an order requiring respondents to
file a VERIFIED RETURN (not an answer). In writ of HC and
Amparo, return is also required to be filed by respondents.
The Return must contain the respondent’s explanation as to
his side. The writ is a special civil action in this contest
because the writ is issued right away, even before the
respondent is given the chance to give his side, even before
the respondent can file his return.
The Kalikasan circular has lots of sections as to the use of
discovery measures. But, they are treated not as discovery
measures, but as provisional orders in the Kalikasan circular.
After the issuance of the writ of Kalikasan, even without
hearing the respondent, the Kalikasan court can issue a
provisional remedy called cease and desist order, which is
similar to a TRO in civil cases. But, it does not have an
expiration date, unlike a TRO in ordinary procedure, the
duration depends upon the discretion of the Kalikasan court.
Also, there are only 2 courts that can take cognizance of a
petition for a writ of Kalikasan, the SC and the CA.
Since there is no answer that is required to be filed by the
respondent, failure by the respondent to file a verified return
does not result in default. In ordinary civil actions involving
environmental laws, we follow a different procedure.

If the defendant in an ordinary civil procedure does not file an
answer, the defendant will be declared in default even if there
is no motion initiated by a plaintiff. That is in an ordinary civil
action involving environmental laws which is not a special civil
action of Kalikasan filed only in the CA or SC. So if the
respondents do not submit a verified return, the court will go
ahead with analyzing the merit of the petition for a writ of
Kalikasan.
A decision of the Kalikasan court in a special civil action of
Kalikasan is immediately executory, although there could be
an appeal. If the Circular says that the decision is immediately
executory, it does not mean that appeal is no longer available.
A decision could be executed as a matter of right even if the
aggrieved party still has the right to appeal. This is an example
of a judgment that is immediately executory, but the
aggrieved party enjoys the right of appeal.
In a special civil action for a writ of kalikasan, an appeal
under Rule 45 is filed in the SC. Questions of fact could
be raised therein, as an exception to the general rule in
Rule 45 that only questions of law could be raised before
the SC.
Judgment in favor of petitioner, aside from being immediately
executory, partakes of a permanent prohibitory mandatory
injunction and at the same time a permanent mandatory
injunction. That is the tenor of a judgment in Kalikasan cases.
The judgment will always contain a provision in which
respondent is permanently prohibited from violating or from
doing an act that will violate environmental laws, and the
permanently mandatory part is that the LGU is given a
mandate to enforce environmental laws.
Writ of Continuing Mandamus in Kalikasan Cases
It is patterned after the mandamus contained in Rule 65. If
you will compare the definition of mandamus in Rule 65 to the
definition of continuing mandamus in the Kalikasan Circular,
there is only the inclusion in continuing mandamus of the
clause pertaining to the enforcement of environmental laws
(“in connection with the enforcement or violation of an
environmental law rule or regulation or a right therein ,”
Section 1 Rule 8 Rules of Procedure on Environmental Cases).
MCQ
The idea or concept of continuing mandamus. What is the
source of this writ of continuing mandamus?
1. an invention of the SC
2. it was taken from India
3. It was taken from USA
4. it is adopted from Latin American Countries just like
Amparo.
Answer –2. it came from the SC of India, which seems to
have a good experience in enforcing environmental laws.
Why do we have a writ of continuing mandamus when we
already have mandamus under Rule 65? Cannot the writ
of Mandamus under Rule 65 satisfy the requirements of
a continuing mandamus?
Mandamus under Rule 65 under Sec. 3 cannot satisfy the
requirement of a continuing mandamus. It will negate the
state policy of enforcing strictly environmental laws. A
final and executory judgment under Rule 39 can only be
enforced through a motion in the first five years. After
that, the next five years, a case for revival of judgment
must be had. In continuing mandamus, it is designed to
avoid the process of motion and then filing a case for
revival of judgment. The continuing mandamus requires
continuous enforcement of the judgment. Via the
continuing mandamus, the government is given a duty
until the objective sought in achieved.
MMDA vs. Concerned Citizens – Writ of Kalikasan and
Continuing Mandamus – petition to clean Manila Bay
2011
MMDA and various agencies were ordered by SC to clean
Manila Bay until it is returned to its pristine condition.
(Without Continuing Mandamus, MMDA will not be compelled
to execute the judgment.)
MMDA v. Concerned Residents of Manila Bay
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to
require the execution of a ministerial duty. A
ministerial duty is one that “requires neither
the exercise of official discretion nor
judgment.” It connotes an act in which
nothing is left to the discretion of the person
executing it. It is a “simple, definite duty
arising under conditions admitted or proved
to exist and imposed by law.”Mandamus is
available to compel action, when refused, on
matters involving discretion, but not to direct
the exercise of judgment or discretion one way
or the other.
***
Respondents, on the other hand, counter that
the statutory command is clear and that
petitioners’ duty to comply with and act
according to the clear mandate of the law does
not require the exercise of discretion.
According to respondents, petitioners, the
MMDA in particular, are without discretion,
for example, to choose which bodies of water
they are to clean up, or which discharge or
spill they are to contain. By the same token,
respondents maintain that petitioners are
bereft of discretion on whether or not to
alleviate the problem of solid and liquid waste
disposal; in other words, it is the MMDA’s
ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that
petitioners’ obligation to perform their duties as
defined by law, on one hand, and how they are to
carry out such duties, on the other, are two
different concepts. While the implementation
of the MMDA’s mandated tasks may entail a
decision-making process, the enforcement
of the law or the very act of doing what the
law exacts to be done is ministerial in nature
and may be compelled by mandamus.  We
said so in Social Justice Society v. Atienza  in
which the Court directed the City
of Manila to enforce, as a matter of
ministerial duty, its Ordinance No. 8027
directing the three big local oil players to
cease and desist from operating their
business in the so-called “Pandacan
Terminals” within six months from the
effectivity of the ordinance. But to illustrate
with respect to the instant case, the MMDA’s
duty to put up an adequate and appropriate
sanitary landfill and solid waste and liquid
disposal as well as other alternative garbage
disposal systems is ministerial, its duty being a
statutory imposition. The MMDA’s duty in this
regard is spelled out in Sec. 3(c) of Republic Act
No. (RA) 7924 creating the MMDA. This section
defines and delineates the scope of the MMDA’s
waste disposal services to include:
 
Solid waste disposal and
management which include
formulation and implementation of
policies, standards, programs and
projects for proper and sanitary
waste disposal.  It shall likewise
include the establishment and
operation of sanitary land fill and
related facilities and the
implementation of other alternative
programs intended to reduce, reuse
and recycle solid waste. (Emphasis
added.) 
The MMDA is duty-bound to comply
with Sec. 41 of the Ecological Solid Waste
Management Act (RA 9003) which prescribes
the minimum criteria for the establishment
of sanitary landfills and Sec. 42 which
provides the minimum operating
requirements that each site operator shall
maintain in the operation of a sanitary
landfill.  Complementing Sec. 41 are Secs. 36 and
37 of RA 9003, enjoining the MMDA and local
government units, among others, after the
effectivity of the law on February 15, 2001, from
using and operating open dumps for solid waste
and disallowing, five years after such effectivity,
the use of controlled dumps.
 
The MMDA’s duty in the area of solid
waste disposal, as may be noted, is set forth
not only in the Environment Code (PD 1152)
and RA 9003, but in its charter as well. This
duty of putting up a proper waste disposal
system cannot be characterized as
discretionary, for, as earlier stated,
discretion presupposes the power or right
given by law to public functionaries to act
officially according to their judgment or
conscience.  A discretionary duty is one that
“allows a person to exercise judgment and
choose to perform or not to perform.” Any
suggestion that the MMDA has the option
whether or not to perform its solid waste
disposal-related duties ought to be dismissed for
want of legal basis.
 
           A perusal of other petitioners’
respective charters or like enabling statutes
and pertinent laws would yield this
conclusion: these government agencies are
enjoined, as a matter of statutory obligation,
to perform certain functions relating
directly or indirectly to the cleanup,
rehabilitation, protection, and preservation
of the Manila Bay. They are precluded from
choosing not to perform these duties. ****
****  For another, a perusal of Sec. 20 of the
All told, the aforementioned enabling
laws and issuances are in themselves clear,
categorical, and complete as to what are the
obligations and mandate of each
agency/petitioner under the law.  We need
not belabor the issue that their tasks include
the cleanup of the Manila Bay.  cleanup work for the polluters’ account.****
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
****
Respondents are correct.  For one thing,
said Sec. 17 does not in any way state that the
government agencies concerned ought to confine
themselves to the containment, removal, and
cleaning operations when a specific pollution
incident occurs. On the contrary, Sec. 17
requires them to act even in the absence of a
specific pollution incident, as long as water
quality “has deteriorated to a degree where
its state will adversely affect its best usage.”
This section, to stress, commands concerned
government agencies, when appropriate, “to
take such measures as may be necessary to
meet the prescribed water quality
standards.” In fine, the underlying duty to
upgrade the quality of water is not
conditional on the occurrence of any
pollution incident.
 
Environment Code, as couched, indicates that
it is properly applicable to a specific situation
in which the pollution is caused by polluters
who fail to clean up the mess they left
behind. In such instance, the concerned
government agencies shall undertake the
As earlier discussed, the complementary Sec. 17
of the Environment Code comes into play and the
specific duties of the agencies to clean up come
in even if there are no pollution incidents staring
at them.  Petitioners, thus, cannot plausibly
invoke and hide behind Sec. 20 of PD 1152 or
Sec. 16 of RA 9275 on the pretext that their
cleanup mandate depends on the happening
of a specific pollution incident.  In this
regard, what the CA said with respect to the
impasse over Secs. 17 and 20 of PD 1152 is at
once valid as it is practical. The appellate
court wrote: “PD 1152 aims to introduce a
comprehensive program of environmental
protection and management. This is better
served by making Secs. 17 & 20 of general
application rather than limiting them to
specific pollution incidents.”
 
Granting arguendo that petitioners’
position thus described vis-à-vis the
implementation of Sec. 20 is correct, they seem
to have overlooked the fact that the pollution
of the Manila Bay is of such magnitude and
scope that it is well-nigh impossible to draw
the line between a specific and a general
pollution incident. And such impossibility
extends to pinpointing with reasonable certainty
who the polluters are.  We note that Sec. 20 of
PD 1152 mentions “water pollution incidents”
which may be caused by polluters in the waters
of the Manila Bay itself or by polluters in
adjoining lands and in water bodies or waterways
that empty into the bay. Sec. 16 of RA 9275, on
the other hand, specifically adverts to “any
person who causes pollution in or pollutes water
bodies,” which may refer to an individual or an
establishment that pollutes the land mass near
the Manila Bay or the waterways, such that the
contaminants eventually end up in the bay. In
this situation, the water pollution incidents
are so numerous and involve nameless and
faceless polluters that they can validly be
categorized as beyond the specific pollution
incident level.
 
Not to be ignored of course is the reality
that the government agencies concerned are so
undermanned that it would be almost impossible
to apprehend the numerous polluters of
the Manila Bay. It may perhaps not be amiss to
say that the apprehension, if any, of
the Manila Bay polluters has been few and far
between. Hence, practically nobody has been
required to contain, remove, or clean up a
given water pollution incident.  In this kind of
setting, it behooves the Government to step
in and undertake cleanup operations. Thus,
Sec. 16 of RA 9275, previously Sec. 20 of PD
1152, covers for all intents and purposes a
general cleanup situation.
 
          The cleanup and/or restoration of
the Manila Bay is only an aspect and the
initial stage of the long-term solution.  The
preservation of the water quality of the bay
after the rehabilitation process is as
important as the cleaning phase. It is
imperative then that the wastes and
contaminants found in the rivers, inland
bays, and other bodies of water be stopped
from reaching the Manila Bay.  Otherwise,
any cleanup effort would just be a futile,
cosmetic exercise, for, in no time at all,
the Manila Bay water quality would again
deteriorate below the ideal minimum
standards set by PD 1152, RA 9275, and other
relevant laws. It thus behooves the Court to put
the heads of the petitioner-department-
agencies and the bureaus and offices under them
on continuing notice about, and to enjoin them
to perform, their mandates and duties towards
cleaning up the Manila Bay and preserving the
quality of its water to the ideal level. Under
what other judicial discipline describes as
“continuing mandamus,” the Court may,
under extraordinary circumstances, issue
directives with the end in view of ensuring
that its decision would not be set to naught
by administrative inaction or indifference.
In India, the doctrine of continuing mandamus
was used to enforce directives of the court to
clean up the length of the Ganges River from
industrial and municipal pollution.
  *****
 In the light of the ongoing environmental
degradation, the Court wishes to emphasize the
extreme necessity for all concerned executive
departments and agencies to immediately act
and discharge their respective official duties and
obligations.  Indeed, time is of the essence;
hence, there is a need to set timetables for
the performance and completion of the
tasks, some of them as defined for them by
law and the nature of their respective offices
and mandates.
 
The importance of the Manila Bay as a sea
resource, playground, and as a historical
landmark cannot be over-emphasized. It is not
yet too late in the day to restore
the Manila Bay to its former splendor and bring
back the plants and sea life that once thrived in
its blue waters. But the tasks ahead, daunting as
they may be, could only be accomplished if those
mandated, with the help and cooperation of all
civic-minded individuals, would put their minds
to these tasks and take responsibility. This
means that the State, through petitioners,
has to take the lead in the preservation and
protection of the Manila Bay.
 
The era of delays, procrastination,
and ad hoc measures is over. Petitioners
must transcend their limitations, real or
imaginary, and buckle down to work before
the problem at hand becomes unmanageable.
Thus, we must reiterate that different
government agencies and instrumentalities
cannot shirk from their mandates; they must
perform their basic functions in cleaning up
and rehabilitating the Manila Bay. We are
disturbed by petitioners’ hiding behind two
untenable claims: (1) that there ought to be a
specific pollution incident before they are
required to act; and (2) that the cleanup of the
bay is a discretionary duty.
 
RA 9003 is a sweeping piece of
legislation enacted to radically transform and
improve waste management.  It implements
Sec. 16, Art. II of the 1987 Constitution,
which explicitly provides that the State shall
protect and advance the right of the people
to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.
 
So it was that in Oposa v. Factoran,
Jr. the Court stated that the right to a
balanced and healthful ecology need not even
be written in the Constitution for it is
assumed, like other civil and political rights
guaranteed in the Bill of Rights, to exist
from the inception of mankind and it is an
issue of transcendental importance with
intergenerational implications. Even
assuming the absence of a categorical legal
provision specifically prodding petitioners to
clean up the bay, they and the men and
women representing them cannot escape
their obligation to future generations of
Filipinos to keep the waters of
the Manila Bay clean and clear as humanly as
possible. Anything less would be a betrayal of
the trust reposed in them.
How do we execute that judgment in the Kalikasan court?
Theoretically, SC said that the execution of the judgment
requires a periodic report from the agencies concerned on
the extent of progress the government agencies concerned
had achieved until the objective of the writ has been
achieved. If the SC is understaffed to monitor the
progress, it can appoint commissioners in charge of
accepting periodic reports and in submitting the
progress reports to the SC in order to satisfy this
judgment requirement. Thus, dormancy and prescription
of judgment under Rule 39 and NCC shall not apply in Writ
of Kalikasan.
A continuing mandamus is another special civil action, but
this time it is cognizable by the RTC, CA and the SC. Just
like in Rule 65 or the Writ of Kalikasan as a special civil action,
the respondent is required to file a verified return, and if no
return is filed by respondent, court continues with the
process of analyzing the merit of the petition for continuing
mandamus.
A provisional remedy that could be issued by the court
handling the petition for continuing mandamus is the issuance
of a Temporary Environmental Protection Order (TEPO) or a
cease and desist order, just like in the writ of Kalikasan. There
could also be an award of damages.
You will also notice that unlike in Kalikasan, there is no
provision concerning appeals in continuing mandamus.. In the
writ of Kalikasan as a special civil action, appeal under Rule 45
is a remedy, raising only questions of law and questions of
fact. . It would seem that the appeals provided in ordinary civil
procedure will govern. If the trial court is the RTC, the appeal
could be by notice of appeal provided in the Rules, or it could
be an appeal directed to the SC. In ordinary civil cases, we
allow an appeal from the RTC to the SC under Rule 45, but the
appeal should only contain questions of law.
What is the precautionary principle in Kalikasan Cases?
Precautionary principle states that when human activities
may lead to threats of serious and irreversible damage to
the environment that is scientifically plausible but
uncertain, actions shall be taken to avoid or diminish that
threat.
What is Strategic Lawsuit Against Public Performance
(SLAPP) ?
It could be in the form of a civil or criminal action. Plaintiff’s
intent from SLAPP is to discourage enforcement officers
from enforcing or attempting to enforce environmental
laws. This is filed usually against DENR or MMDA by a private
individual.
Strategic lawsuit against public participation
(SLAPP)refers to an action whether civil,
criminal or administrative, brought against
any person, institution or any government
agency or local government unit or its
officials and employees, with the intent to
harass, vex, exert undue pressure or stifle
any legal recourse that such person,
institution or government agency has taken
or may take in the enforcement of
environmental laws, protection of the
environment or assertion of environmental
rights.
In such case, the government officer can file a motion to
dismiss such case. The public officer/defendant/accused
need only to present substantial evidence (the same
standard in administrative cases) to prove that the case
filed was a SLAPP. The plaintiff must present preponderance
of evidence/proof beyond reasonable doubt to sustain his
challenge.
In criminal procedure in SLAPP, there is a substantial change
in the manner by which a criminal case is governed when
compared to a criminal action which follows criminal
procedure.
In ordinary criminal procedure, if the court grants bail, one of
the conditions in the bail is that if the accused does not
appear in court for trial, then the court is authorized to
conduct a trial in absentia. But in criminal procedure, if the
accused is granted bail, and then during the arraignment he
does not appear, the criminal court will be forced to suspend
proceedings until the accused is rearrested. What the court
will do is to postpone the arraignment, issue another arrest
warrant and probably order the cancellation of the bail bond.
But, the arraignment will not be pushed through. If there is no
arraignment, there can be no trial in the ordinary criminal
case. There must be an arraignment first before the court
can conduct a trial in absentia.
This is not followed in the Kalikasan criminal cases. In the
Kalikasan criminal cases, the crimes are usually bailable. If the
accused is granted bail, the condition of the bail bond will
contain similar provisions to that found in bail under ordinary
criminal proceedings. There is modification in arraignment. If
accused does not appear in the scheduled arraignment, the
court is authorized enter a plea of not guilty, so that if there
is a plea of not guilty, the arraignment is completed, a trial
can then be scheduled. If the accused still failed to appear on
trial, there can be a trial in absentia.
There is no more need for the accused to be present
personally during the arraignment in the Kalikasan criminal
cases. If he does not appear, then it is the court who will enter
a plea of not guilty for him so the court can continue with the
trial in absentia of the accused.
Other Terms(Rules of Procedure on
Environmental Cases):
By-product or derivatives means any part
taken or substance extracted from wildlife, in
raw or in processed form including stuffed
animals and herbarium specimens.
Consent decree refers to a judicially-approved
settlement between concerned parties based on
public interest and public policy to protect and
preserve the environment.
Mineral refers to all naturally occurring
inorganic substance in solid, gas, liquid, or any
intermediate state excluding energy materials
such as coal, petroleum, natural gas, radioactive
materials and geothermal energy.
Wildlife means wild forms and varieties of flora
and fauna, in all developmental stages including
those which are in captivity or are being bred or
propagated.
Some Important provisions (Rules of
Procedure on Environmental Cases):
Rule 2 SEC. 13. Service of summons, orders and
other court processes.—The summons, orders
and other court processes may be served by the
sheriff, his deputy or other proper court officer
or for justifiable reasons, by the counsel or
representative of the plaintiff or any suitable
person authorized or deputized by the court
issuing the summons.
Any private person who is authorized or
deputized by the court to serve summons,
orders and other court processes shall for
that purpose be considered an officer of the
court.
The summons shall be served on the defendant,
together with a copy of an order informing all
parties that they have fifteen (15) days from the
filing of an answer, within which to avail of
interrogatories to parties under Rule 25 of the
Rules of Court and request for admission by
adverse party under Rule 26, or at their
discretion, make use of depositions under Rule 23
or other measures under Rules 27 and 28.
Should personal and substituted service fail,
summons by publication shall be allowed. In the
case of juridical entities, summons by publication
shall be done by indicating the names of the
officers or their duly authorized representatives.
Rule 3 SEC. 3. Referral to mediation.—At the
start of the pre-trial conference, the court shall
inquire from the parties if they have settled the
dispute; otherwise, the court shall immediately
refer the parties or their counsel, if authorized
by their clients, to the Philippine Mediation
Center (PMC) unit for purposes of mediation. If
not available, the court shall refer the case to
the clerk of court or legal researcher for
mediation.
Mediation must be conducted within a non-
extendible period of thirty (30) days from
receipt of notice of referral to mediation.
The mediation report must be submitted
within ten (10) days from the expiration of
the 30-day period.
Rule 3 SEC. 5. Pre-trial conference; consent
decree.—The judge shall put the parties and
their counsels under oath, and they shall
remain under oath in all pre-trial
conferences.
The judge shall exert best efforts to persuade
the parties to arrive at a settlement of the
dispute. The judge may issue a consent
decree approving the agreement between
the parties in accordance with law, morals,
public order and public policy to protect the
right of the people to a balanced and
healthful ecology.
Evidence not presented during the pre-trial,
except newly discovered evidence, shall be
deemed waived.
Rule 4 SEC. 2. Affidavits in lieu of direct
examination.—In lieu of direct examination,
affidavits marked during the pre-trial shall
be presented as direct examination of
affiants subject to cross-examination by the
adverse party.
Rule 4 SEC. 3. One-day examination of witness
rule.—The court shall strictly adhere to the rule
that a witness has to be fully examined in one
(1) day, subject to the court’s discretion of
extending the examination for justifiable
reason. After the presentation of the last
witness, only oral offer of evidence shall be
allowed, and the opposing party shall
immediately interpose his objections. The
judge shall forthwith rule on the offer of
evidence in open court.
Rule 4 SEC. 4. Submission of case for decision;
filing of memoranda.— After the last party has
rested its case, the court shall issue an order
submitting the case for decision.
The court may require the parties to submit
their respective memoranda, if possible in
electronic form, within a non-extendible period
of thirty (30) days from the date the case is
submitted for decision.
The court shall have a period of sixty (60) days
to decide the case from the date the case is
submitted for decision.
Rule 4 SEC. 5. Period to try and decide.—The
court shall have a period of one (1) year from
the filing of the complaint to try and decide
the case. Before the expiration of the one-
year period, the court may petition the
Supreme Court for the extension of the
period for justifiable cause.
The court shall prioritize the adjudication of
environmental cases.
Rule 5 SECTION 1. Reliefs in a citizen suit.—If
warranted, the court may grant to the
plaintiff proper reliefs which shall include the
protection, preservation or rehabilitation of
the environment and the payment of
attorney’s fees, costs of suit and other
litigation expenses.
It may also require the violator to submit a
program of rehabilitation or restoration of
the environment, the costs of which shall be
borne by the violator, or to contribute to a
special trust fund for that purpose subject
to the control of the court.
Rule 5 SEC. 2. Judgment not stayed by appeal.—
Any judgment directing the performance of
acts for the protection, preservation or
rehabilitation of the environment shall be
executory pending appeal unless restrained
by the appellate court.
Rule 7 SEC. 6. How the writ is served.—The writ
shall be served upon the respondent by a
court officer or any person deputized by the
court, who shall retain a copy on which to make
a return of service.
In case the writ cannot be served personally, the
rule on substituted service shall apply.
Rule 7 SEC. 7. Penalty for refusing to issue or
serve the writ.—A clerk of court who unduly
delays or refuses to issue the writ after its
allowance or a court officer or deputized
person who unduly delays or refuses to serve
the same shall be punished by the court for
contempt without prejudice to other civil,
criminal or administrative actions.
Rule 10 SECTION 1. Institution of criminal and
civil actions.—When a criminal action is
instituted, the civil action for the recovery of
civil liability arising from the offense charged,
shall be deemed instituted with the criminal
action unless the complainant waives the civil
action, reserves the right to institute it
separately or institutes the civil action prior to
the criminal action.
Unless the civil action has been instituted prior
to the criminal action, the reservation of the
right to institute separately the civil action shall
be made during arraignment.
In case civil liability is imposed or damages are
awarded, the filing and other legal fees shall be
imposed on said award in accordance with Rule
141 of the Rules of Court, and the fees shall
constitute a first lien on the judgment award.
The damages awarded in cases where there is
no private offended party, less the filing
fees, shall accrue to the funds of the agency
charged with the implementation of the
environmental law violated. The award shall
be used for the restoration and rehabilitation
of the environment adversely affected.
Rule 14 SECTION 1. Bail, where filed.—Bail in the
amount fixed may be filed with the court where
the case is pending, or in the absence or
unavailability of the judge thereof, with any
regional trial judge, metropolitan trial judge,
municipal trial judge or municipal circuit trial
judge in the province, city or municipality. If the
accused is arrested in a province, city or
municipality other than where the case is
pending, bail may also be filed with any Regional
Trial Court of said place, or if no judge thereof is
available, with any metropolitan trial judge,
municipal trial judge or municipal circuit trial
judge therein. If the court grants bail, the
court may issue a hold-departure order in
appropriate cases.
Rule 16 SEC. 4. Manner of questioning.—All
questions or statements must be directed to
the court.
Rule 16 SEC. 5. Agreements or admissions.—All
agreements or admissions made or entered
during the pre-trial conference shall be
reduced in writing and signed by the accused
and counsel; otherwise, they cannot be used
against the accused. The agreements covering
the matters referred to in Section 1, Rule 118 of
the Rules of Court shall be approved by the
court.
Rule 20 PRECAUTIONARY PRINCIPLE
SECTION 1. Applicability.—When there is a lack
of full scientific certainty in establishing a
causal link between human activity and
environmental effect, the court shall apply
the precautionary principle in resolving the
case before it.
The constitutional right of the people to a
balanced and healthful ecology shall be given
the benefit of the doubt.
SEC. 2. Standards for application.—In applying the
precautionary principle, the following factors,
among others, may be considered:
(1) threats to human life or health;
(2) inequity to present or future
generations; or
(3) prejudice to the environment without
legal consideration of the environmental
rights of those affected.
RULE 66 QUO WARRANTO
~One of the cases under the concurrent original jurisdiction of
the SC, CA and RTC under BP 129 and also the COMELEC under
the Omnibus Election Code. MTC has limited quo warranto
jurisdiction as to proceedings at the barangay level.
Q: What is quo warranto?
A: A proceeding or writ issued by the court to determine the
right to use an office, position or franchise and to oust the
person holding or exercising such office, position or franchise
if his right is unfounded or if a person performed acts
considered as grounds for forfeiture of said exercise of
position, office or franchise.
Note: It is commenced by a verified petition brought in the
name of the Republic of the Philippines or in the name of the
person claiming to be entitled to a public office or position
usurped or unlawfully held or exercised by another. (Sec. 1)
Q: What are the classifications of quo warranto
proceedings?
A:
1. Mandatory – brought by the Solicitor General or Public
prosecutor when:
a. directed by the President;
b. upon complaint or when he has reason to believe that
the cases for quo warranto can be established by proof
(Sec. 2)
c. at the request and upon the relation if another
person (ex relatione), but leave of court must first be
obtained. (Sec. 3)
2. Discretionary – brought by the Solicitor General or a public
prosecutor at the request and upon the relation of another
person, provided there must be:
a. leave of court
b. at the request and upon the relation of another
person
c. indemnity bond (Sec. 3)
Who commences the action?
A:
1. The solicitor general or public prosecutor, when directed by
the President of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any case
specified in the proceeding section can be established by
proof. (mandatory quo warranto)
2. The Solicitor General or a public prosecutor may, with the
permission of court, bring an action at the request and upon
the relation of another person. (discretionary quo warranto)
3. A person claiming to be entitled to a public office or
position or unlawfully held or exercised by another may also
bring action, in his own name. (Relator)
Q: Against whom a quo warranto may be filed?
A: The action must be filed against:
1. A person who usurps, intrudes into, or unlawfully
holds or exercises a public office, position or franchise;
2. A public officer who does or suffers an act which, by
the provision of law, constitutes a ground for the
forfeiture of his office; and
3. An association which acts as a corporation within the
Philippines without being legally incorporated or
without lawful authority so to act (Sec. 1, Rule 66).
Note: Actions of quo warranto against corporations now fall
under the jurisdiction of the RTC (Sec. 5.2, Securities
Regulations Code).

Usually, the petitioner has the right of choice. But under Rule
65, although nothing is mentioned in Rule 66 about hierarchy
of courts in quo warranto proceedings, we follow hierarchy of
courts. As much as possible, we do not file a petition for quo
warranto in the SC. It should be filed in the RTC which has
territorial jurisdiction over the case where the public office in
question is placed.
If we compare quo warranto to mandamus, if you go back to
Rule 65 Section 3, the second part of that section has a phrase
or clause which seems to overlap with the concept of quo
warranto. Quo warranto refers to the usurpation, holding an
office without title. In mandamus, the second part of the
section on mandamus speaks about a respondent who
unlawfully excludes another from the use or enjoyment of a
right or office to which he is entitled. So there seems to be an
overlap between the second part of mandamus and quo
warranto.
Rule 65 SEC. 3. Petition for mandamus.—When
any tribunal, corporation, board, officer or
person unlawfully neglects the performance of
an act which the law specifically enjoins as a
duty resulting from an office, trust, or station,
or unlawfully excludes another from the use
and enjoyment of a right or office to which
such other is entitled, and there is no other
plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper
court, alleging the facts with certainty and
praying that judgment be rendered commanding
the respondent, immediately or at some other
time to be 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.
The petition shall also contain a sworn
certification of non-forum shopping as provided
in the third paragraph of section 3, Rule 46.
Because of this seemingly overlap between mandamus and
quo warranto, the SC has also resolved that there is nothing
wrong when a petitioner files a petition for mandamus or in
the alternative a petition for quo warranto. The petitioner is
not very certain whether the right proceeding is mandamus or
quo warranto, because these actions would involve really the
intrusion or usurpation of a public office or title.
But there is a great difference procedurally between
mandamus and quo warranto although these petitions could be
used alternatively. This is because in a quo warranto
proceeding, the petitioner could be the Solicitor General,
although he is not interested in the public office in question.
Upon the instruction of the President, the SolGen is
authorized to file a petition for quo warranto. Or, if the
instructions does not come from the President, the request
comes from a relator. A relator is a term associated with quo
warranto, he is the petitioner, a person who believes he is
entitled to the public office held by another, and he is asking
the SolGen to file a petition for quo warranto on his behalf.
The SolGen, upon the request of a relator, shall commence a
petition for quo warranto. But the person interested in the
office could himself file a petition for quo warranto. That is
what usually happens. The person who alleges he is entitled to
a position can file a petition for quo warranto in a competent
court.
Quo warranto is a special civil action because of numerous
changes in the procedure which modify the rules we apply to
ordinary civil actions.
Procedural changes:
1. Rule on venue
Usually in ordinary civil cases, in the absence of an express
agreement, venue is governed by Rule 4. We do not follow this
in quo warranto. It is specifically provided that for quo
warranto, the venue is where the officer sought to be
ejected is residing. We do not take into account the
residence of the petitioner.
Q: A group of businessmen formed an association
in Cebu City calling itself Cars Co. to distribute/sell
cars in said city. It did not incorporate itself under
the law nor did it have any government permit or
license to conduct its business as such. The
Solicitor General filed before the RTC in Manila a
verified petition for quo warranto questioning and
seeking to stop the operations of Cars Co. The
latter filed a motion to dismiss the petition on the
ground of improper venue claiming that its main
office and operations are in Cebu City and not in
Manila. Is the contention of Cars Co. correct? Why?
A: No. As expressly provided in the Rules, when the
Solicitor General commences the action for quo
warranto, it may be brought in a Regional Trial Court in
the City of Manila, as in the case, in the CA or in the SC
(Sec. 7, Rule 66). (2001 Bar Question)
2. Period for submission of pleadings
In ordinary civil actions, the period to file pleadings is fixed in
the Rules, and the court has discretion to grant extension
thereof. But if we read Rule 66, the quo warranto court can
reduce the period at its discretion. The quo warranto court
can issue a summons instructing the recipient thereof to file a
responsive pleading with 5 days. That discretion of a quo
warranto court is not enjoyed by other courts under ordinary
civil procedure, as courts under ordinary procedure can grant
extensions only.
3. The most significant change in quo warranto is that we do
not apply the rule against splitting a cause of action. It is
expressly allowed in quo warranto under Sections 9, 10 and 11
of Rule 66.
SEC. 9. Judgment where usurpation found.—
When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising
a public office, position or franchise, judgment
shall be rendered that such respondent be
ousted and altogether excluded therefrom,
and that the petitioner or relator, as the case
may be, recover his costs. Such further
judgment may be rendered determining the
respective rights in and to the public office,
position or franchise of all the parties to the
action as justice requires.
SEC. 10. Rights of persons adjudged entitled
to public office; delivery of books and
papers; damages.—If judgment be rendered in
favor of the person averred in the complaint to
be entitled to the public office he may, after
taking the oath of office and executing any
official bond required by law, take upon
himself the execution of the office, and may
immediately thereafter demand of the
respondent all the books and papers in the
respondent’s custody or control appertaining
to the office to which the judgment relates.
If the respondent refuses or neglects to
deliver any book or paper pursuant to such
demand, he may be punished for contempt as
having disobeyed a lawful order of the court.
The person adjudged entitled to the office may
also bring action against the respondent to
recover the damages sustained by such
person by reason of the usurpation.
SEC. 11. Limitations.—Nothing contained in this
Rule shall be construed to authorize an action
against a public officer or employee for his
ouster from office unless the same be
commenced within one (1) year after the
cause of such ouster, or the right of the
petitioner to hold such office or position,
arose; nor to authorize an action for damages
in accordance with the provisions of the next
preceding section unless the same be
commenced within one (1) year after the
entry of the judgment establishing the
petitioner’s right to the office in question.
You will note that in these 3 sections, there is a rule derived
from these sections, which says that if the quo warranto
court decides in favor of the petitioner, the quo
warranto court will oust the respondent and direct that
the office and the records of that office be turned over
to the prevailing party. In the succeeding sections, it is also
provided that the prevailing party has a right, within 1 year
after taking over, can claim damages incurred as a result
of usurpation by ousted respondent public officer.
Although a favorable decision in a quo warranto proceeding
could lead the court to award damages against the respondent
public officer, the quo warranto need not award damages in
the quo warranto petition itself. There could be a separate
complaint for recovery of damages arising from the
usurpation of a public office. This is splitting a cause of
action. In other words, the prevailing party can recover the
office, and after he has assumed office, within one year from
entry of judgment, he can file a separate complaint for the
recovery of damages suffered as a result of the intrusion or
usurpation made by the defendant.
Claim for damages arising from principal cause of action is not
barred if split from quo warranto action. But prescriptive
period is 1 year from entry of the main action. Whereas in the
case of mandamus, a special civil action, let’s say the
petitioner files a petition for mandamus without a claim for A:
damages. He later on wins the case. When court directs the Elective Office Appointive Office
defendant to turn over the office to the prevailing party, the Issue: eligibility of the Issue: validity of the
prevailing party will be barred from claiming damages from respondent appointment
the plaintiff. Mandamus does not authorize splitting a cause
Occupant declared Court will oust the person
of action. A claim of damages could be awarded if claimed in
ineligible/disloyal will be illegally appointed and will
the same petition for mandamus. In quo warranto, there is a
unseated but petitioner will order the seating of the
different procedure that we follow when it comes to recovery
not be declared the rightful person who was legally
of damages. There could be a separate complaint for recovery
occupant of the office. appointed and entitled to the
of damages arising from the intrusion or usurpation of public
office.
office. But the prescriptive period is one year from entry of
judgment of the quo warranto proceeding.
Distinguish quo warranto under Rule 66 from quo
warranto under Omnibus Election Code.
A:
Quo Warranto Under Rule Quo Warranto In Electoral
Distinguish mandamus from quo warranto.
66 Proceedings
A:
Prerogative writ by which To contest the right of an
Mandamus Quo Warranto
the government can call upon elected public officer to hold
Available when one is Available against the holder any person to show by what public office.
unlawfully excluded from the of an office, who is the title he holds a public office
use or enjoyment of an person claiming the office as or exercises a public
office against a person who against petitioner, not franchise.
is responsible for excluding necessarily the one who
Grounds: 1. usurpation Grounds:
the petitioner excludes the petitioner
2. forfeiture ineligibility or
No splitting of a cause of Recovery of damages is
3. illegal association disqualification to hold the
action. allowed within 1 year from office
the entry of judgment of the
Presupposes that the Petition must be filed within
petition for quo warranto
respondent is already 10 days from the
actually holding office and proclamation of the
Distinguish quo warranto in elective office from an action must be commenced candidate.
appointive office. within 1 year from cause of
 ouster or from the time the judgment. Is his defense succeed in this ordinary
right of petitioner to hold complaint for damages?
office arose. No. It cannot be set up. It is a collateral attack on a judgment,
The petitioner must be the May be filed by any voter which we do not allow. Collateral attack on judgment rendered
government or the person even if he is not entitled to by the court is not allowed when the judgment appears on its
entitled to the office and the office. face to be valid under Rule 39. Practically, in that separate
who would assume the same complaint for the recovery of damages, no meritorious
if his action succeeds. defense could be set up by the respondent because the award
Person adjudged entitled to Actual or compensatory of damages necessarily arises from the fact that there is
the office may bring a damages are recoverable in already a final and executory judgment rendered in the
separate action against the quo warranto proceedings principal case of quo warranto.
respondent to recover under the Omnibus Election
damages. Code. RULE 67 EXPROPRIATION
Q: What is expropriation?
Note: If the dispute is as to the counting of votes or on A: The procedure for enforcing the right of eminent domain.
matters connected with the conduct of the election, quo
warranto is not the proper remedy but an election protest Q: What are the requisites of a valid expropriation?
(Cesar v. Garrido, G.R. No. 30705, Mar. 25, 1929) A:
1. Due process of law
Is the claim of damages in quo warranto cases considered 2. Payment of just compensation
a separate special civil action?
3. Taking must be for public use
No, it is an ordinary action for a claim of damages.

Q: What is the power of eminent domain?

Supposing that the petitioner filed a case for quo
warranto against respondent. His petition for quo
warranto was granted. The respondent was ousted from
the office. When the prevailing party filed a case for
damages, 1 year after the entry of the judgment of the
quo warranto court, the respondent interposed a defense
that he cannot be held liable for damages as the
judgment of the quo warranto court was an invalid
A: It is the right of the State to acquire private property for
public use upon the payment of just compensation.
Q: When is expropriation proper?
A: It is proper only when the owner refuses to sell or, if
the latter agrees, agreement as to the price cannot be
reached.

Jurisdiction – exclusively cognizable by RTC. The test in BP
129 as to assessed value of the property is not applied
here.
The nature of the action as a real action has nothing to
do with the jurisdiction of the court, but it has
something to do only with respect to the venue. The
nature of the property is not determinative of
jurisdiction in expropriation proceedings because
expropriation is one not capable of pecuniary estimation.
Why is this so when state is required to pay just
compensation?
This is because the issue to be resolved first by the court
is the right of the plaintiff to expropriate. Only in the
second stage is the fixing of just compensation resolved. A
court cannot simply decide the issue of just
compensation first, as it should assess first the right to
expropriate, which is incapable of pecuniary estimation.
SC held that since the first issue to be resolved is one
incapable of pecuniary estimation, under BP 129, then it
should be the RTC which should have jurisdiction.
In expropriation proceedings, if there is a complaint filed
yesterday, and the plaintiff deposits an amount
equivalent to assessed value today, even if the defending
party has not been notified yet, the plaintiff can proceed
to possess the property subject of expropriation. Let us
say that the DPWH is interested in getting a property of land
for the purpose of expanding a national highway. What it will
do is to simply file a complaint in the RTC where the land is
located. The deposit is made the next day. Immediately, the
DPWH will take over the said property, and the owner thereof
can do nothing about it. Once deposit is made as required
by the Rules or as required by substantive law, the court
issues a writ of possession as its ministerial duty. In
ordinary civil actions, issuance of a writ of possession can be
done only after the court has rendered a decision and such
decision has been entered.
In case of reversion, when will the owner recover the
expropriated property?
After a judgment in favor of owner has become final and
executory. If there is an appeal, possession is not returned,
except when execution pending appeal is granted. Otherwise,
a writ of possession shall be issued upon finality.
Suppose there is a lien over the property? What if there
were informal settlers in the property?
They will all be driven out as a result of the writ of possession
issued even before the expropriation court has determined
whether or not the state has a right to expropriate.
There are now new laws providing for fixing the amount of
deposit to be made, not the one that is always provided for
under Rule 67. The new laws say that deposit should be 100%
of the assessed value. Rule 67 shall govern in cases where the
special laws are not applicable.
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO
POSSESSION OF THE REAL PROPERTY
Q: What is the new system of immediate payment of
initial compensation?
A: RA 8974 provides a modification of sec 2, Rule 67 where the
Government is required to make immediate and direct
payment to the property owner upon the filing of the
complaint to be entitled to a writ of possession. As a relevant
standard for initial compensation, the market value for the
property as stated in the tax declaration or the current
relevant zonal valuation of the Bureau of internal
Revenue (BIR), whichever is higher and the value of the
improvements and/or structures using the replacement
cost method.
Note: RA 8974 applies in instances when the national
government expropriates property for national
government infrastructure projects. Thus, if
expropriation is engaged by the national government for
purposes other than national infrastructure projects, the
assessed value standard and the deposit mode prescribed
in Rule 67 continues to apply.
The intent of RA 8974 to supersede the system of deposit
under Rule 67 with the scheme of immediate payment in cases
involving national government infrastructure projects is
indeed very clear (MCWD v. J. King and Sons, GR 175983, April
16, 2009)
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST
COMPENSATION
Q: What is the new system of immediate payment of
initial just compensation?
A: For the acquisition of right-of-way, site or location for any
national government infrastructure project through
expropriation, upon the filing of the filing of the complaint,
and after due notice to the defendant, the implementing
agency shall immediately pay the owner of the property the
amount equivalent to the sum of (1) 100 percent of the value
of the property based on the current relevant zonal valuation
of the BIR; and (2) the value of the improvements and/or
structures as determined under Sec. 7 of RA 8974 (Sec. 4, RA
8974).
Expropriation by LGUs, under the LGC, it must be alleged in
the complaint that there is an ordinance authorizing the
filing expropriation complaint and a further allegation
that LGU offered to buy the property from the owner,
but the owner refused (there was an attempt by the LGU
to buy the property).
What are the two (2) stages in expropriation
proceedings?
A:
1. Determination of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of the
exercise in the context of the facts involved.
2. Determination of just compensation.
FIRST STAGE
The first stage of the expropriation proceeding is for
purposes of determining the plaintiff’s right to expropriate.
The first decision in resolving this issue is called an order of
condemnation or expropriation, which is a final decision on
the merits. This is appealable.
Certain pleadings are not allowed: Counterclaim, cross-claim
and 3rd party complaint. If defendant believes the filing of
expropriation by the Republic is arbitrary, he cannot sue the
Republic. He cannot file a counterclaim against the Republic.
Is there a way the defendant protect himself in case the
court decides in his favor?
Under Rule 67, even if without a counterclaim, if the court
resolves the expropriation is not meritorious, the court will
award damages in favor of defendant. If there is a dispute
among several defendants as to who is entitled to just
compensation, even if no cross-claim is filed, the court itself
will resolve this issue, even if there are no pleadings relating
thereto. The expropriation court has a very wide discretion in
the matter of payment, or even distribution, of just
compensation that will be fixed during the 2nd stage where
the court will appoint commissioners, who will then tell the
court the amount of just compensation to be paid to the
various defendants.
POSSESSORS WITH JUST TITLE
SC also ruled that if the Republic has a Torrens title over
certain properties, but the said properties were in the
possession of private individuals claiming possession under a
just title, the Republic cannot simply cause their ejection, but
Republic can simply file an expropriation proceeding against
them. There is nothing wrong if the Republic will file a
complaint for expropriation to oust the possessors from the
property, although these properties are already in the title of
the government.
DEFAULT
Supposing the defendant does not answer within the period of
default, the court, upon motion of the plaintiff, may declare
the defendant in default. But in the default order issued in
expropriation proceedings, the defendant is in default only
during the first stage of the proceedings, and is lifted
automatically in the 2nd stage. The defendant, if declared in
default, will not be able to participate during the first stage of
the proceedings where the right of the plaintiff to expropriate
will be determined by the court. The first stage ends, if
favorable to plaintiff, with the court issuing an order for
condemnation or order of expropriation. Once that order is
entered, or even if there is an appeal from that order, the
expropriation court will now go to the second stage, the fixing
of just compensation. During the 2nd stage, the defendant is
allowed again to participate in the proceedings the fixing of
just compensation. Unlike in ordinary civil actions, if the
defendant is in default, the defendant will not be able to
participate during the entire proceedings, unless the order of
default is lifted or the order of default is set aside.
SECOND STAGE
The fixing of just compensation is not solely the discretion of
the court. Court MUST appoint commissioners to determine
such compensation. If the court has not followed this
procedure, there is ground to question the decision of just
compensation by said court. Commissioners must be
appointed in order to help the court in fixing the just
compensation to be paid. This is another deviation from
ordinary procedures. Note in ordinary procedure, trial by
commissioners is discretionary; unlike in expropriation, the
appointment of commissioners in the second stage is
mandatory. The judgment rendered by the expropriation
court will be void if the court does not follow the mandatory
requirement of appointing of commissioners.
Q: May the court dispense with the assistance of
commissioners in the determination of just
compensation in expropriation proceedings?
A: No. The appointment of commissioners in expropriation
proceedings is indispensable. In such cases, trial with the aid
of commissioners is a substantial right that may not be done
away with capriciously or for no reason at all (MERALCO v.
Pineda, G.R. No. L-59791, Feb. 13, 1992).
Note: Objections to the order of appointment must be filed
within 10 days from service of the order and shall be resolved
within 30 days after all the commissioners received the copies
of the objections (Sec. 5)
Q: What is just compensation?
A: Just compensation is equivalent to the fair market value of
the property at the time of its taking or filing of complaint
whichever comes first. It is the fair and full equivalent for the
loss sustained by the defendant.
Q: What is the formula for the determination of just
compensation?
JC = FMV + CD – CB
If CB is more than CD then,
JC = FMV
Where:
JC – Just compensation
FMV – Fair market value
CD – Consequential damages
CB – Consequential benefits
Note: Sentimental value is not computed.
Q: What is the reckoning point for determining just
compensation?
A:The value of just compensation shall be determined as of
the date of the taking of the property or the filing of the
complaint, whichever came first. (Sec. 4)
GR: When the taking of the property sought to be
expropriated coincides with the commencement of the
expropriation proceedings, or takes place subsequent to the
filing of the complaint for eminent domain, the just
compensation should be determined as of the date of the
filing of the complaint. (City of Iloilo v. Hon. Lolita Contreras-
Besana, G.R. No. 168967, Feb. 12, 2010).
Note: Typically, the time of taking is contemporaneous with
the time the petition is filed. (NAPOCOR v. Co, G.R. No
166973, Feb. 10, 2009)
XPNs:
1. Grave injustice to the property owner
2. The taking did not have color of legal authority
3. The taking of the property was not initially for
expropriation
4. The owner will be given undue increment advantages
because of the expropriation
Based on past jurisprudence, if the state has expropriated a
piece of land and had paid just compensation based on the
court’s decisions, but the state did not push through with the
project alleged in the complaint, there is nothing we can do
about it on ground of res judicata. The case can no longer be
reopened. But that was old jurisprudence. Recently, the
decision on Mactan-Cebu International Airport cases, the last
of which was decided in 2010, the SC held that in the case of
the public purpose of the expropriation being unfulfilled,
the former owners can rightfully file a complaint in the
RTC for the reversion of the property and reconveyance
of the property expropriated, the amount of payment of
which shall be based on the just compensation paid at the
time of expropriation (the purpose being to return to the
government the amount of just compensation paid to
them).
In another case, there was a land owner who donated a tract
of land to the government. The government introduced
improvements with tolerance of the owner, and the value of
the property increased. The donor, seeing that the
improvements increase the value of his property, changed his
mind and sought to recover the donated property by filing a
case for unlawful detainer against the government.SC held
that unlawful detainer is not the remedy. There was a de
facto expropriation that happened when the government took
over the property. What the owner can do is to file an
ordinary action for the recovery of just compensation.
In other words, if we follow the reasoning of the SC,
expropriation could be de jure expropriation, it could also be
de facto expropriation. If the government actually occupies a
piece of land and introduces improvements therein, with the
tolerance of the owner of the property, that is effectively an
expropriation of the property. And the only remedy of the
land owner is to file an ordinary case for the recovery of just
compensation. There will still be a need to fix the amount of
just compensation.
We follow the same procedure if the subject of expropriation
is personal property. But there are laws fixing the amount to
be deposited if the government wants to take possession of
the personal property right away.
APPEAL
Supposed defendant appealed the first final order, may
the court proceed with the 2nd stage?
Yes. An appeal from the first final order will not prevent the
court from proceeding to the 2nd stage to fix the amount of
just compensation.
If the defendant during appeal asks the court to
withdraw the deposit made, will that mean he is
withdrawing his appeal or shall the appeal continue?
The appeal shall continue. SC held that defendant is allowed to
withdraw the money since technically it is his as it is intended
to pay partly his just compensation, this will not mean that
the appeal is being withdrawn.
Thus, immediately, you can see why expropriation is a special
civil action. It consists of 2 stages. And for each stage, there
is a final order of judgment. Thus, for each final order of
judgment, an appeal can be had, meaning there can be 2
appeals in an expropriation case. Thus, it is possible that there
can be multiplicity of appeals in expropriation cases, which is
not allowed in ordinary civil actions.
Because of the possibility of multiple of appeals in
expropriation proceedings, the requirements of appeal are
changed. In ordinary civil proceedings, the period to appeal is
15 days, and what needs to be filed is just a notice to appeal.
In expropriation proceedings, since there could be multiple
appeals, the period to appeal is extended to 30 days, and
together with notice of appeal, appellant is also required to
file a record on appeal. Failure to file record to appeal means
the appeal is not perfected.
Q: City of Iloilo (petitioner) represented by Mayor Treñas
filed a complaint for eminent domain against Javellana
seeking to expropriate two parcels of land. Mayor Treñas
filed a motion for issuance of writ of possession alleging
that it had deposited 10% of the amount of compensation
of which the court issued. A writ of possession was
subsequently issued, and petitioner was able to take
physical possession of the properties. After which, the
expropriation proceedings remained dormant. 16 years
later, Javellana filed an ex parte motion/manifestation,
where he alleged that when he sought to withdraw the
money, he discovered that no deposit was made. Thus,
Javellana filed a complaint for recovery of possession,
fixing and recovery of rental and damages. The City of
Iloilo argues that Javellana could no longer bring an action
for recovery since the subject property was already
taken for public use. The trial court in its orders and
amended orders maintained that the assailed orders
issued by it were interlocutory in character and as such
are always subject to modification and revision by the
court anytime. Is the order of expropriation final?
A: Expropriation proceedings have two stages. The first phase
ends with an order of dismissal, or a determination that the
property is to be acquired for a public purpose. The second
phase consists of the determination of just compensation.
Both orders, being final, are appealable.
An order of condemnation or dismissal is final, resolving the
question of whether or not the plaintiff has properly and
legally exercised its power of eminent domain. Once the first
order becomes final and no appeal thereto is taken, the
authority to expropriate and its public use can no longer be
questioned. Thus, it has become final, and the petitioner’s Note: It is commenced by a complaint setting forth the date
right to expropriate the property for a public use is no longer and due execution of the mortgage; the names and residences
subject to review. (City of Iloilo v. Hon. Lolita Contreras- of the mortgagor and the mortgagee; a description of the
Besana, G.R. No. 168967, Feb. 12, 2010). mortgaged property; date of the note or other documentary
evidence of the obligation secured by the mortgage, the
May Congress enact a law providing that a 5,000 square amount claimed to be unpaid thereon; and the names and
meter lot, a part of the UST compound in Sampaloc, residences of all persons having or claiming an interest in the
Manila, be expropriated for the construction of a park in property subordinate in right to that of the holder of the
honor of former City Mayor Arsenio Lacson? As mortgage (Sec. 1).
compensation to UST, the City of Manila shall deliver its
5-hectare lot in Sta. Rosa, Laguna originally intended as a JUDICIAL VS.EXTRA-JUDICIAL FORECLOSURE
residential subdivision for the Manila City Hall Judicial Foreclosure Extra-judicial Foreclosure
employees. Explain. Governed by Rule 68 Governed by Act 3135
A: Yes, Congress may enact a law to expropriate property but There is only an equity of Right of redemption exists
it cannot limit just compensation. The determination of just redemption except when the
compensation is a judicial function and Congress may not mortgagee is a bank
supplant or prevent the exercise of judicial discretion to
Requires court intervention No court intervention
determine just compensation. Under Sec. 5, Rule 67 of the
necessary
Rules of Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners. (2006 Bar Mortgagee need not be given Mortgagee is given a special
Question) a special power of attorney. power of attorney in the
mortgage contract to
foreclose the mortgaged
property in case of default
RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE
Note: A mortgagee may bring a personal action for the
Another multi-stage special civil action – it has 3 stages amount due, instead of a foreclosure suit, in which case, he
will be deemed to have waived his right to proceed against the
Q: What is foreclosure of Real Estate Mortgage (REM)? property in a foreclosure proceeding. (Movido v. RFC, G.R.
A: It is the remedy used for the satisfaction of any monetary No. L-11990, May 29, 1959)
obligation, which a person owes to another, by proceeding
against the property used to secure said obligation. Judicial foreclosure of real estate mortgage. Rule 68 deals only
with real estate mortgage. Here, the court is involved.
Note: There is no judicial foreclosure of a chattel mortgage. judgments were appealed in the CA up to the SC, then such
period is extended until the finality of the said judgments,
Extra-judicial foreclosure of real mortgage is governed by which could take many years. If an appeal is perfected on
special law, the Real Estate Mortgage Law. We deal only with time, there can be no entry of judgment. This is the reason
the notary public or the court sheriff. There is a circular why mortgagees are discouraged from engaging in judicial
issued by the SC concerning extra-judicial real estate foreclosures.
mortgage, so we follow that SC circular when it comes to
extra-judicial foreclosure. In the circulars, the mortgagee will Q: Distinguish equity of redemption from right of
not need to file a complaint, but instead will be dealing with redemption.
notary public or sheriff. There will also be public auction, A:
period of redemption, and consolidation of title by RoD. The Equity of Redemption Right of Redemption
only time when the purchaser in this foreclosure needs to go
Right of the defendant Right of the debtor, his
to court is when the purchaser needs to recover possession of
mortgagor to extinguish successor in interest or any
the property. He will have to go to court in order to petition
the mortgage and retain judicial creditor or judgment
for the issuance of a writ of possession.
ownership of the property creditor of said debtor or
by paying the debt within any person having a lien on
In extra-judicial foreclosure of mortgage, the period of 90-120 days after the the property subsequent to
redemption is similar to Rule 39, 1 year from registration of entry of judgment or even the mortgage or deed of
the certificate of sale. This period of redemption is one of the after the foreclosure sale trust under which the
distinctions of judicial under Rule 68 and extra-judicial but prior to confirmation property is sold to redeem
foreclosure of mortgage. the property within 1 year
from the registration of
Redemption in judicial foreclosure is called equity of the Sheriff’s certificate of
redemption. It is redemption just the same. Period of foreclosure sale
redemption is between 90 to 120 days from entry of Governed by Rule 68 Governed by Secs. 29-31,
judgment. Such short period is actually misleading, as it can Rule 39
be without a definite end. The counting must be
commenced from ENTRY of judgment or final order.
There are 3 judgments or final orders to be rendered in
judicial foreclosure. For each stage, there could be an
appeal in each final order. The counting starts upon entry
of all three judgments or final orders. Thus, if one or two
Note: There is no right of redemption in judicial foreclosure
sale after the confirmation of sale except those granted by
banks or banking institutions in favor of non-judicial persons
as provided by the General Banking Act (Government
Insurance System v. CFI of Iloilo, G.R. No. 45322, July 5, 1989).
In extra-judicial foreclosure, the mortgagor has the right to
redeem the property within one year from the registration of
the deed of sale. However, Sec. 47 of the General Banking Act
provides that in case of extra-judicial foreclosure, juridical
persons shall have the right to redeem the property until, but
not after, the registration of the certificate of foreclosure
sale which in no case shall be more than 3 months after
foreclosure, whichever is earlier.
The pendency of the action stops the running of the right of
redemption. Said right continues after perfection of an appeal
until the decision of the appeal. (Consolidated Bank and Trust
Corp. v. IAC, G.R. No. 73341, Aug. 21, 1987)
A mortgagee can only foreclose extra-judicially under
the Real Mortgage Law if he is given an SPA to do so by
the mortgagor. Otherwise, he must make use of judicial
foreclosure of mortgage. If mortgagee files a complaint for
judicial foreclosure, the first problem is jurisdiction.
SC held that foreclosure of REM is always cognizable under
the RTC. It is not capable of pecuniary estimation.
Notwithstanding the nature of foreclosure of a real estate,
the SC used the reasons in expropriation. SC held that a
judicial foreclosure of a real estate mortgage is incapable of
pecuniary estimation since in the first stage, the court
determines the right of plaintiff to foreclose, which is
incapable of pecuniary estimation.
Rule 68 already tells who should be the plaintiff as well as who
to implead defendant. The defendants should be the debtor
and the mortgagor. The debtor is different from mortgagor.
And debtor must also implead as co-defendants persons who
might have interests or liens subsequent to the mortgagee.
By implication, the owner of a piece of land can validly
mortgage his land more than once. He can mortgage the land
to A, then to B, and then C.
If the mortgage loans are all defaulted, the defendant, if he
has not given any authority to foreclose the mortgage, is sure
to be impleaded as a defendant in the complaint for judicial
foreclosure of a real estate mortgage. It is the first
mortgagee who judicially forecloses the mortgage and if he
follows the Rules, the first mortgagee should implead the
debtor, the mortgagor and the subsequent mortgagees.
Does it mean to say that the debtor is an indispensible
party?
Yes. The mortgagor is an indispensable party, whose property
is sought to be foreclosed. Remember that a mortgage is a
collateral contract. There must always be a principal contract
coupled with a contract of real estate mortgage. Thus, we
should always implead the mortgagor, who is an indispensable
party in the recovery of the indebtedness.
How about the mortgagor, is he an indispensible party?
Yes. He is also an indispensible party as it is his property that
will be foreclosed. He might lose his property if it is
foreclosed to satisfy the obligation incurred by the debtor.
Supposing the mortgagor files an answer and sets up the
defense that the mortgage insofar as he is concerned is
void due to lack of consideration thereto, is this a valid
argument against the foreclosure?
It is untenable. In civil law, where there is a collateral under an
accessory contract, the consideration under the principal
contract serves automatically as the consideration for the
accessory contract. The mortgagor only has himself to blame,
setting up his property as security for the benefit of the
debtor without compensation.
Subsequent lien holders are necessary parties, so they will
lose their equity of redemption incase the plaintiff wins the
case.
The only reason why subsequent mortgagees should be
impleaded under the Rules is to protect the 1st mortgagee,
assuming that he wins the case, from these subsequent lien
holders (subsequent mortgagees) from exercising their equity
of redemption. If the subsequent mortgagees are not
impleaded, and there is a decision in favor of the 1st
mortgagee, the subsequent mortgagees will not lose their
equity of redemption. Meaning, they do not start to count
the 90 to 120 days period from entry of judgment so as to bar
these subsequent lien holders from exercising their right to
equity of redemption. That is the only reason why Rule 68
says that subsequent lien holders should be impleaded,
because they are necessary parties, so that they will lose
their equity of redemption if ever the 1st mortgagee will win
the case.
In an indispensible party is not impleaded, the court will order
plaintiff to amend his complaint and include said party. Failure
to implead an indispensible party despite order of the court
will result in the dismissal of the case.
STAGES OF JUDICIAL FORECLOSURE
FIRST STAGE
In the first stage, the court determines the liability of the
debtor, and the court will order the debtor to pay his
indebtedness within a 90- to 120-day period from entry of
judgment. The mortgagor is not the one ordered to pay the
secured indebtedness, it is the debtor who must pay.
But inn our given facts, we do not expect the debtor to pay,
because the property anyway does not belong to him. He will
leave the problem to the mortgagor. If there is no payment,
and the judgment is not appealed, it will be entered. The entry
will not cut off the equity of redemption. The equity of
redemption shall exist until after the entry of the 2nd
judgment.
If the debt is paid, the proceedings become academic. There is
no more reason for the mortgagee continue his complaint if
the debt is paid. It is the obligation of the mortgagee to cancel
the mortgage if the obligation is finally settled. But if the
obligation is not paid, the proceedings will go to the 2nd stage.
SECOND STAGE
The foreclosure court orders the sale of the mortgaged
property at public auction. The court will issue an order
directing the sheriff to sell the property in a public auction
under Rule 39, as well as in the Mortgage Law.
If the property is sold to the highest bidder, do we now cut
off the equity of redemption?
We do not cut off as of yet the equity of redemption even
when the property has been sold at public auction. What the
court will do next after the public auction is conducted is to
resolve the motion for the confirmation of the validity of the
auction sale. This is the second final order of confirmation. It
is appealable. When an appeal is seasonably filed, the final
order of confirmation is not entered, the equity of
redemption will still continue to run. It will not be interrupted
until the 2nd judgment is entered. If 2nd final order is
entered, that will not mark the end of the proceedings. That
will only mark the beginning of the 3rd stage.
THIRD STAGE
Deficiency Judgment
If the proceeds of the auction sale are not enough to pay off
the indebtedness, the court will be determining if there is any
deficiency and issue another final order authorizing the
recovery of the deficiency.
The recovery of the deficiency will be governed by Rule 39,
because the property/collateral has already been sold at public
auction. We are going to apply, for purposes of recovery of
deficiency, execution of judgment. The recovery of
deficiency is the third final order. If there is no satisfaction
of the deficiency through voluntary payment, the foreclosing
mortgagee will have to avail of Rule 39. He can move for the
issuance of a writ of execution.
But in that 3rd stage, do not forget that the only one who is
liable now is the debtor. The mortgagor will not be liable for
any deficiency, because the mortgagor is not the debtor. The
mortgagor is liable only to the extent of the value of his
collateral. He cannot be held personally liable for the value of
the deficiency, unless he makes himself solidarily liable
together with the debtor. So in the recovery of deficiency,
only the principal debtor is held liable, but not the mortgagor
of the property.
Since we are going to apply Rule 39, there will be a levy on
execution of properties of the debtor. If these are sold at
public auction, there will be another round of legal
redemption, 1 year from registration of the certificate of sale
in the RoD, but not because of the foreclosure, but because of
the issuance of the foreclosure court of a writ of execution.
Q: What is deficiency judgment?
A: It is the judgment rendered by the court holding the
defendant liable for any unpaid balance due to the mortgagee
if the proceeds from the foreclosure sale do not satisfy the
entire debt.
Q: What are the instances when the court cannot render
deficiency judgment?
A: where the debtor-mortgagor is a non-resident and who at
the time of the filing of the action for foreclosure and during
the pendency of the proceedings was outside the Philippines,
then it is not procedurally feasible. It is by nature in personam
and jurisdiction over the person is mandatory.
In one case decided by the SC, the debtor secured his
indebtedness with a real estate mortgage to his own
property. The lender/mortgagee obligated the debtor to
issue post-dated checks for the payment of the
obligation. The mortgagees filed criminal cases since the
checks he got from the mortgagor were dishonored upon
presentation. During the pendency of the criminal cases,
since the principal obligation remained unpaid, the
mortgagee availed of the special civil action for judicial
foreclosure of mortgage of the mortgagor’s property.
The mortgagor, previously summoned in the criminal
cases, sought for the dismissal of the foreclosure case,
claiming that the civil aspect of BP 22 should not be
separated from the criminal aspect as it is automatically
carried with the criminal case, and that mortgagee has
split his causes of action in filing the special civil action
for judicial foreclosure. Is the mortgagor correct?
In an earlier case, the SC upheld the mortgagor. The special
civil action for judicial foreclosure was dismissed. There was
really splitting of causes of action. The criminal cases
stemmed from the issuance of the debtor of the checks,
which were dishonored. In a mortgage relationship, there are
effectively 2 contracts entered into between the mortgagor
and mortgagee. The principal contract, usually a loan, and an
accessory contract of mortgage. If the mortgagee files a
separate complaint for the recovery of the loan without
foreclosing the mortgage, he can do so. The filing of a
separate complaint for the purpose of recovering the loan will
be considered as a waiver of the collateral arrangement. The
mortgagee, if he does this, is deemed to have abandoned the
mortgage. He is deemed to have converted his secured loan to
an unsecured loan. The ordinary civil action of the loan will
bar a second complaint for the judicial foreclosure of
mortgage.
In a 2011 decision, involving the same set of facts, the SC
changed its course. SC held that the existence of a criminal
case for violation of BP 22 is not a ground to conclude
that the mortgagee has abandoned his mortgage lien.
Notwithstanding the criminal case for violation of BP 22
pending before the MTC, the mortgagee can still
institute a judicial foreclosure of the mortgage.
Q: Arlene borrowed P1 million from GAP Bank (GAP)
secured by the titled land of her friend Gretchen who,
however, did not assume personal liability for the loan.
Arlene defaulted and GAP filed an action for judicial
foreclosure of the real estate mortgage impleading
Arlene and Gretchen as defendants. The court rendered
judgment directing Arlene to pay the outstanding
account of P1.5 million (principal plus interest) to GAP. No
appeal was taken by Arlene. Arlene failed to pay the
judgment debt within the period specified in the
decision. At the foreclosure sale, the land was sold to
GAP for P1.2 million. The sale was confirmed by the court,
and the confirmation of the sale was registered with the
Registry of Deeds on January 5, 2002.

On January 10, 2003, GAP filed an ex-parte motion with
the court for the issuance of a writ of possession to oust
Gretchen from the land. It also filed a deficiency claim
for P800,000 against Arlene and Gretchen. The
deficiency claim was opposed by Arlene and Gretchen.
1. Resolve the motion for the issuance of a writ of
possession.
2. Resolve the deficiency claim of the bank.
A:
1. In judicial foreclosure by banks such as GAP, the
mortgagor or debtor whose real property has been sold
on foreclosure has the right to redeem the property
within 1 year after the sale (or registration of the sale).
However, under Sec. 47 of the General Banking Law of 2000,
the purchaser at the auction sale has the right to obtain
a writ of possession after the finality of the order
confirming sale. The motion for writ of possession,
however, cannot be filed ex parte. There must be a
notice of hearing.
2. The deficiency claim of the bank may be enforced
against the mortgage debtor Arlene, but it cannot be
enforced against Gretchen, the owner of the mortgaged
property, who did not assume personal liability of the loan.
(2003 Bar Question)
INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY
JUDGMENT
Q: What are the instances when the courts cannot render
deficiency judgment?
A: When the:
1. Case is covered by the Recto Law (Art. 1484, NCC);
2. Mortgagor is a non-resident and is not found in the
Philippines, unless there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with the
probate court under Sec. 7, Rule 86; and
4. Mortgagee is a third person but not solidarily liable with the
debtor.
If the mortgagee holds a chattel mortgage, he will have to
foreclose it under the provisions of the Chattel Mortgage Law
via an extra-judicial foreclosure of chattel mortgage. The
problem of the mortgagee in a chattel mortgage is similar to
that of a mortgagee in a real estate mortgage. In mortgage
arrangements, the collateral is usually left to the possession
of the mortgagor. In real estate mortgage, mortgagor
continues to be in possession of the real property. In a chattel
mortgage, chattel is retained by mortgagor. (If mortgagor
loses possession of the personal property, the contract will
not remain a contract of mortgage, but one of pledge.) With
respect to real estate mortgage, the possession of the
collateral by debtor does not give much of a problem.
Mortgagee, if he is the highest bidder, can ask for writ of
possession after the auction sale. The problem by the
mortgagee in a chattel mortgage is that the personal
property must be in his possession before he can extra-
judicially sell the chattel subject to the mortgage.
Mortgagees in a chattel mortgage usually resort to court
action by filing a complaint for replevin and avail of the
provisional remedy of a warrant of seizure or a writ of
replevin. The court can grant the provisional remedy
even before the mortgagor files an answer. Once the
mortgagee gains possession of the chattel, he can proceed
with the process of extra-judicial foreclosure of a chattel
mortgage.
PARTITION
It is a special civil action which could involve both personal and
real properties unlike judicial foreclosure.
owner shall be obliged to remain the co-ownership. Because of
this rule, he may demand at any time the partition of the
property owned in common (Art. 494).
Note: It is commenced by a complaint. (Sec.1, Rule 69)
Q: What are the requisites of a valid partition?
A:
1. Right to compel the partition;
2. Complaint must state the nature and extent of plaintiff's
title and a description of the real estate of which partition is
demanded; and
3. All other persons interested in the property must be joined
as defendants (Sec. 1, Rule 69)

A complaint for partition is predicated on the theory that

Who may file and who should be made defendants?
plaintiff and defendant are co-owners of the properties
A: The action shall be brought by the person who has a right
subject of litigation. The basis of a complaint of partition is
to compel the partition of real estate ( Sec. 1, Rule 69) or of an
that the plaintiff is allegedly a co-owner of the property
estate composed of personal property, or both real and
together with other co-owners who are impleaded as
personal property (Sec. 13, Rule 69). The plaintiff is a person
defendants. What is essential in the complaint is that ALL co-
who is supposed to be a co-owner of the property or estate
owners of the plaintiff must be impleaded in the case as
sought to be partitioned. The defendants are all the co-
defendants.
owners.

Q: What is partition?
SC said that all co-owners are indispensable parties. Even if
A: It is a process of dividing and assigning property owned in
one is left out, the judgment of partition will never become
common among the various co-owners thereof in proportion
final and executory. So, all of the co-owners MUST be
to their respective interests in said property. It presupposes
impleaded.
the existence of a co-ownership over a property between two
or more persons. The rule allowing partition originates from a
well-known principle embodied in the Civil Code, that no co- Q: What is the effect of non-inclusion of a co-owner in
an action for partition?
A:
1. Before judgment – not a ground for a motion to dismiss.
The remedy is to file a motion to include the party.
2. After judgment – makes the judgment therein void because
co-owners are indispensable parties.
Note: Creditors or assignees of co-owners may intervene and
object to a partition affected without their concurrence. But
they cannot impugn a partition already executed unless there
has been fraud or in case it was made notwithstanding a
formal opposition presented to prevent it. (Sec. 12, Rule 69)
Can co-owners agree among themselves to partition
without going to court?
Yes. If they were able to agree among themselves, then they
do not need to go to court anymore. The only time they go to
court is the time when they cannot agree in the partition. But
even if they cannot agree at the start, and therefor there is
now a complaint for partition now filed in court, during the
pendency of the case, they can file agree voluntarily on how
to partition that property. And if they want, they can submit
the agreement of partition to the court. If the court approves
the agreement of partition, that will be a decision on the
merits by the court. It is a partition in the form of a
compromise agreement duly approved by the court. So even
during the pendency of the case, there nothing to prevent the
plaintiff and the defendants from entering voluntarily into a
voluntary partition. They may not allow the court to decide
how the property will be divided.
But if the parties insist in partition to be done by the court, it
will involve a 2-stage proceeding.
Partition is a two-stage proceeding.
First proceeding – the court will issue an order for partition,
Second proceeding –the court may appoint commissioners
to determine how the property will be divided among the co-
owners.
There could be a third stage if there is no agreement on the
system of accounting for the properties; the court will order
the co-owner who has been managing the property to submit
his accounting to the court for its approval, but he furnishes a
copy to show how he has spent the income and how he has
kept the income as a fund for the preservation of the
property.
What are the two aspects of partition proceedings?
A:
1. Existence of co-ownership; and
2. Accounting or how to actually partition the property.
Note: During the trial, the court shall determine whether or
not the plaintiff is truly a co-owner and there is co-ownership
and that partition is not legally proscribed, the court will issue
an order of partition. It directs the parties to partition the
property by proper instruments of conveyance, if they agree
among themselves.
If they do agree, the court shall then confirm the partition so
agreed and such is to be recorded in the registry of deeds of
the place in which the property is situated (Sec 2, Rule 69).
There always exists the possibility that the parties are unable
to agree on the partition. Thus, the next stage is the
appointment of commissioners.
What are the stages in an action for partition which could
be the subject of appeal?
A:
1. Order determining the propriety of the partition
2. Judgment as to the fruits and income of the property
3. Judgment of partition (Riano, Civil Procedure: A
Restatement for the Bar, p. 596, 2009 ed.)
ORDER OF PARTITION AND PARTITION BY AGREEMENT
Q: What is an order of partition?
A: The order of partition is one that directs the parties or co-
owners to partition the property
Q: When does the court issue the order of partition?
A: During the trial, the court shall determine whether or not
the plaintiff is truly a co-owner of the property, that there is
indeed a co-ownership among the parties, and that a partition
is not legally proscribed thus may be allowed. If the court so
finds that the facts are such that a partition would be in
order, and that the plaintiff has a right to demand partition,
the court will issue an order of partition.
Note: The court shall order the partition of the property
among all the parties in interest, if after trial it finds that the
plaintiff has the right to partition (Sec. 2, Rule 69). It was held
that this order of partition including an order directing an
accounting is final and not interlocutory and hence,
appealable; thus, revoking previous contrary rulings on the
matter. A final order decreeing partition and accounting may
be appealed by any party aggrieved thereby.
When is partition by agreement proper?
A: The parties may make the partition among themselves by
proper instruments of conveyance, if they agree among
themselves. If they do agree, the court shall then confirm the
partition so agreed upon by all of the parties, and such
partition, together with the order of the court confirming the
same, shall be recorded in the registry of deeds of the place in
which the property is situated (Sec. 2, Rule 69).cc
If you happen to read the provisions in the NCC on co-
ownership, it would seem that if there is a complaint for
partition filed by one co-owner against the other co-owners,
it seems the other co-owners cannot set up a very
meritorious defense. When one of the co-owners wants to
leave, that is a right given him by substantive law. Nobody can
stop him from leaving the co-ownership.
In one recent case, the SC said that here could be a good
defense in a complaint for partition. Even if the court finds
property is co-owned, and one co-owner decides to leave, the
court cannot simply issue a decision in favor of the
plaintiff/co-owner that will lead to the dissolution of the co-
ownership. SC cited the provision in the Family Code citing
Article 159, which substantially says that if there are co-
owners of a property by reason of their right to inheritance
from a predecessor in interest, and one of them is a minor I suggest that you read provisions of the NCC on the propriety
residing in the property, the court cannot subject the of a partition among co-heirs if one of them is a minor who is
property to partition and the co-ownership cannot be residing in the property owned in common. It seems that the
dissolved until the minor shall be capacitated. That would be a co-ownership shall continue to exist for 10 years if there is a
good defense in a complaint for partition. minor residing in that property. That property cannot be
simply be ordered to be divided by the court, even if there is a
FC Art. 159. The family home shall continue complaint for partition.
despite the death of one or both spouses or
of the unmarried head of the family for a
period of ten years or for as long as there is
a minor beneficiary, and the heirs cannot
partition the same unless the court finds
compelling reasons therefor. This rule shall
apply regardless of whoever owns the property
or constituted the family home.

NCC Articles related to partition among heirs

Art. 238. Upon the death of the person who has set up the
family home, the same shall continue, unless he desired
otherwise in his will. The heirs cannot ask for its partition
during the first ten years following the death of the
person constituting the same, unless the court finds
powerful reasons therefor.
Art. 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share
is concerned.
Nevertheless, an agreement to keep the thing undivided
for a certain period of time, not exceeding ten years,
shall be valid. This term may be extended by a new
agreement.
A donor or testator may prohibit partition for a period which
shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by
law.
No prescription shall run in favor of a co-owner or co-heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.
SECTION 6. - Partition and Distribution of the Estate
SUBSECTION 1. - Partition
Art. 1078. Where there are two or more heirs, the whole
estate of the decedent is, before its partition, owned in
common by such heirs, subject to the payment of debts of
the deceased. (n)
Art. 1081. A person may, by an act inter vivos or mortis causa,
entrust the mere power to make the partition after his death
to any person who is not one of the co-heirs.
The provisions of this and of the preceding article shall be
observed even should there be among the co-heirs a minor or
a person subject to guardianship; but the mandatory, in such
case, shall make an inventory of the property of the estate,
after notifying the co-heirs, the creditors, and the legatees
or devisees.
Art. 1082. Every act which is intended to put an end to
indivision among co-heirs and legatees or devisees is deemed
to be a partition, although it should purport to be a sale, and
exchange, a compromise, or any other transaction.
Art. 1083. Every co-heir has a right to demand the division of
the estate unless the testator should have expressly
forbidden its partition, in which case the period of indivision
shall not exceed twenty years as provided in article 494.
This power of the testator to prohibit division applies to the
legitime.
Even though forbidden by the testator, the co-ownership
terminates when any of the causes for which partnership is
dissolved takes place, or when the court finds for compelling
reasons that division should be ordered, upon petition of one
of the co-heirs.
Art. 1084. Voluntary heirs upon whom some condition has
been imposed cannot demand a partition until the
condition has been fulfilled; but the other co-heirs may
demand it by giving sufficient security for the rights
which the former may have in case the condition should
be complied with, and until it is known that the condition
has not been fulfilled or can never be complied with, the
partition shall be understood to be provisional.
FC Art. 159. The family home shall continue despite the death
of one or both spouses or of the unmarried head of the family
for a period of ten years or for as long as there is a minor
beneficiary, and the heirs cannot partition the same unless
the court finds compelling reasons therefor. This rule shall
apply regardless of whoever owns the property or constituted
the family home.
Note: Family Code is a subsequent law, hence the limit is
10 years.

LEASE
Art. 1669. If the lease was made for a determinate time, it
ceases upon the day fixed, without the need of a demand.
Art. 1670. If at the end of the contract the lessee should
continue enjoying the thing leased for fifteen days with
the acquiescence of the lessor, and unless a notice to the
contrary by either party has previously been given, it is
understood that there is an implied new lease, not for
the period of the original contract, but for the time
established in Articles 1682 and 1687. The other terms of
the original contract shall be revived.
Art. 1671. If the lessee continues enjoying the thing after
the expiration of the contract, over the lessor's
objection, the former shall be subject to the
responsibilities of a possessor in bad faith.
Art. 1672. In case of an implied new lease, the obligations
contracted by a third person for the security of the principal
contract shall cease with respect to the new lease.
Art. 1673. The lessor may judicially eject the lessee for any of
the following causes:
Unlawful Detainer and Forcible Entry (Rule 70)
Read NCC articles on lease (especially those relevant to UD)
(1) When the period agreed upon, or that which is fixed for
the duration of leases under Articles 1682 and 1687, has
expired;
(2) Lack of payment of the price stipulated;
(3) Violation of any of the conditions agreed upon in the
contract;
(4) When the lessee devotes the thing leased to any use or
service not stipulated which causes the deterioration thereof;
or if he does not observe the requirement in No. 2 of Article
1657, as regards the use thereof.
The ejectment of tenants of agricultural lands is governed by
special laws.
Art. 1674. In ejectment cases where an appeal is taken the
remedy granted in Article 539, second paragraph, shall also
apply, if the higher court is satisfied that the lessee's appeal
is frivolous or dilatory, or that the lessor's appeal is prima
facie meritorious. The period of ten days referred to in said
article shall be counted from the time the appeal is perfected.
Art. 1675. Except in cases stated in Article 1673, the lessee
shall have a right to make use of the periods established in
Articles 1682 and 1687.
Art. 1147. The following actions must be filed within one year:
(1) For forcible entry and detainer;
Rule 70 FORCIBLE ENTRY (FE) AND UNLAWFUL DETAINER
(UD)
Rule 70 contains 2 special civil actions which are different
from one another, FE and UD.
FE and UD are special civil actions cognizable exclusively in the
MTC following summary procedures. The provisions of Rule 79
are practically a reproduction of summary procedures. They
are initiated by a complaint filed in the MTC.
Both are real action, but we do not follow BP 129 which uses
the assessed value to determine jurisdiction. Under BP 129,
real actions are cognizable by an MTC or an RTC depending
upon the assessed value of the real property involved. FE and
UD are cognizable by an MTC regardless of the assessed value
of the property or other collateral issues that could be raised
like unpaid rentals or recovery of damages. So if there is a
complaint for unlawful detainer with a claim for back rentals
amounting to 1M, the case is still cognizable by the MTC. In
certain instances, the landlord/land owner is interested only
in the recovery of the back rentals. And if he decides to file a
complaint solely for recovery of the 1M back rentals, then the
case is cognizable in the RTC, since the case is no longer one
for unlawful detainer
(2) For defamation.
UD, just like FE, is for the recovery of physical possession of
property. The recovery of money is only an incident to the
principal action.
Q: What is forcible entry?
A: It is entry effected by force, intimidation, threat,
strategy, or stealth; the action is to recover possession
founded upon illegal possession from the beginning.
Note: It is commenced by a verified complaint. (Sec. 1)
Q: What are the requisites of a valid forcible entry?
A:
1. A person is deprived of possession of any land or building by
force, intimidation, threat, strategy, or stealth; and
2. Action is brought within 1 year from the unlawful
deprivation. (Sec. 1)
Q: What are the questions to be resolved in an action for
forcible entry?
A:
1. Who has actual possession over the real property;
2. Was the possessor ousted therefrom within one year from
the filing of the complaint by force, intimidation, strategy,
threat or stealth; and
3. Does the plaintiff ask for the restoration of his possession
(Dizon v. Concina, G.R. No. 23756, Dec. 27, 1969)
Q: What is unlawful detainer? A: No. The amount of rents and damages claimed does not
A: It is unlawful detention by a person who has acquired affect jurisdiction of the MTCs because the same are only
possession rightfully, but who detains the property after the incidental or accessory to the main action (Lao SengHian v.
right to keep possession has ended. Lopez, G.R. No. L-1950, May 16, 1949).
Note: If only rents or damages are claimed in an ordinary
Note: It is commenced by a verified complaint. (Sec. 1) action, the action is personal and the amount claimed
determines whether it falls within the jurisdiction of the RTC
or the MTC.
Q: What are the requisites of a valid unlawful detainer?
A:
Q: Distinguish forcible entry from unlawful detainer.
1. Possession of any land or building is unlawfully withheld
A:
from a lessor, vendor, vendee, or other person after the
expiration or termination of the right to hold possession by Forcible Entry Unlawful Detainer
virtue of any contract express or implied; (Detentacion) (Desahucio)
2. Action is brought within 1 year after such unlawful Possession of the land by the Possession is inceptively
deprivation or withholding of possession; and defendant is unlawful from lawful but it becomes illegal
3. Demand to pay or comply with the conditions of the lease the beginning as he acquires by reason of the termination
and to vacate is made upon the lessee. (Sec. 1) possession by force, of his right to the possession
intimidation, strategy, of the property under his
threat contract with the plaintiff.
Q: Is formal contract a prerequisite in unlawful detainer?
or stealth.
A: The existence of a formal contract is not necessary in
No previous demand for the Demand is jurisdictional if
unlawful detainer. Even if there is no formal contract between
defendant to vacate the the ground is non-payment
the parties, there can still be an unlawful detainer because
premises is necessary. of rentals or failure to
implied contracts are covered by ejectment proceedings.
comply with the lease
Possession by tolerance creates an implied promise to vacate
contract.
the premises upon the demand of the owner (Peran v. CFI of
Sorsogon, G.R. No. 57259, Oct. 13, 1983). The plaintiff must prove that The plaintiff need not have
he was in prior physical been in prior physical
possession of the premises possession.
Q: Does the amount of rents and damages prayed for in
until he was deprived thereof
an action for forcible entry and unlawful detainer affect
by the defendant.
the jurisdiction of the courts?
The 1 year period is generally Period is counted from the
counted from the date of date of last demand or last
actual entry on the land. letter of demand.
Usually in UD, the contract involved is a contract of lease.
There is a land lord-tenant relationship, the tenant does not
DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION pay rental, there is a written demand to vacate and to pay
REINVINDICATORIA back rentals, and if tenant fails to pay, then there could be a
Q: What are the possessory actions on real property? complaint for UD.
A:
Accion Accion Publiciana Accion But, these remedies appear to have been modified by the
Interdictal Reinvindicatoria decisions of the SC. For instance, in a past case, about 30
years ago, there was a case involving a contract of lease on a
Summary action A plenary action An action for the
commercial property. There was a stipulation in the contract
for the recovery for the recovery recovery of
which states that if the tenant does not pay rentals, for
of physical of the real right of ownership, which
instance, 3 months, the land lord will send a letter demanding
possession where possession when necessarily
that the tenant must vacate the property and pay the back
the dispossession the dispossession includes the
rentals for 3 months. If the tenant still failed to pay, the land
has not lasted has lasted for recovery of
lord can extra-judicially take over the property. Under that
for more than 1 more than 1 possession.
stipulation, the land lord does not have to go to court in order
year. year.
to recover physical possession of the property. What the land
All cases of RTC has RTC has lord will do is to go to the premises, throw out the things of
forcible entry and jurisdiction if the jurisdiction if the the tenant, change the locks of the doors of the property, and
unlawful detainer value of the value of the accept a new tenant. When the tenant challenged the validity
irrespective of the property exceeds property exceeds of the stipulation in the SC, the SC at that time held that the
amount of P20,000 or P20,000 or stipulation was valid. The SC held that the contract was one of
damages or unpaid P50,000 in Metro P50,000 in Metro lease with a resolutory condition. When the tenant fails to
rentals sought to Manila. Manila. pay, he loses his right to possess the property.
be recovered MTC has MTC has
should be brought jurisdiction if the jurisdiction if the
The latest decision involving this kind of stipulation in a
to the MTC. value of the value of the
contract of lease was last 2009/10, one of the parties was By
property does not property does not
the Bay, Inc. It also involved a lease of a commercial property,
exceed the above exceed the above
with essentially the same set of facts involving the same
amounts. amounts.
stipulation, that the land lord can take over the property
extra-judicially if tenant failed to pay upon written demand to
pay back rentals and vacate. The SC affirmed it past decision,
that the lease contract is one with a resolutory condition.
As of now, it seems that if you are lawyering for the land lord,
and you want to protect the land lord without a need to go to
court file a case for unlawful detainer, all you have to do is to
incorporate a stipulation in the contract of lease authorizing
the land lord to take over extra-judicially the possession of
the property. SC said this is a valid stipulation, there is
nothing wrong with it. Under our system, a contract is the law
between the parties. There is nothing wrong if the tenant
agrees in a contract of lease to be ejected without a court
order by virtue of a written stipulation in the contract of
lease. These contracts have been accepted as valid by the SC.
So, such stipulation is a valid stipulation in a lease contract.
But in the event that the contract of lease does not contain
such stipulation, if the tenant has failed to pay rentals for
several months, the only recourse of the land lord is to file a
complaint before the MTC for unlawful detainer.
Supposing the land lord of a contract without that
stipulation physically enters the property, ejects the
tenant, throws out the things of the tenant and starts to
occupy the property. The land lord is now in possession
of the property. Can the tenant file a case against the
land lord for forcible entry?
Yes. When the land lord forces his way into the rented
property (subject to a contract of lease without the
resolutory condition), and the land lord acquired the property
through force, intimidation, strategy or stealth, that is
forcible entry.
Is there anything improper if the tenant files a case for
unlawful detainer or forcible entry against the owner of
the property?
There is nothing wrong from the legal point of view, because
what is involved in unlawful detainer or forcible entry is not
ownership, it is physical possession of the property. So the
defendant in a case for FE or UD may be the owner of the
property when he is in unlawful possession of his own
property, depending upon the circumstances of the case.
What makes FA and UD ‘special’ as a special civil action?
FE and UD are governed by summary procedures. But that
fact alone is not the most significant reason why FE and UD
are characterized as special civil actions. It is due to the
provision of immediate enforcement of a decision in favor
of the plaintiff under Sec. 19 Rule 70 that makes FE and
UD a special civil action. The decision is immediately
executory, although it is appealable. But even if appealed,
the decision is immediately executory. The appeal shall not
stop the court in performing in its ministerial duty to execute
the decision in a case of FE or UD. The execution of the
decision here is a matter of right on the part of the
plaintiff, and not a matter of discretion of the court.
Why the radical change from the procedural rules that we
had in ordinary civil actions?
This is because of the provision found in Section 4 Rule 39.
Under Rule 39, the general principle is that we cannot execute
as a matter of right a judgment that has not been entered.
Generally, what can be executed as a matter of right is a
judgment duly entered.
There is an exception to this general rule in Section 4 Rule 39,
rendering the judgment as executory as a matter of right,
although appealable. The first sentence in Section 4 states:
“Judgments in actions for injunction, receivership, accounting
and support, and such other judgments as are now or may
hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not be stayed by an
appeal taken therefrom, unless otherwise ordered by the trial
court.” There are very few judgments that are executory as a
matter of right, and the phrase “and such other judgments
as are now or may hereafter be declared to be
immediately executory” includes FE and UD.
SEC. 4. Judgments not stayed by appeal.—
Judgments  in actions for injunction,
receivership, accounting and support, and
such other judgments as are now or may
hereafter be declared to be immediately
executory, shall be enforceable after their
rendition and shall not be stayed by an appeal
taken therefrom, unless otherwise ordered by
the trial court. On appeal therefrom, the
appellate court in its discretion may make an
order suspending, modifying, restoring or
granting the injunction, receivership, accounting,
or award of support.
The stay of execution shall be upon such
terms as to bond or otherwise as may be
considered proper for the security or protection
of the rights of the adverse party.
The fact is that a decision in favor of the plaintiff is
immediately executory as a matter of right, although the
aggrieved defendant could immediately appeal the said
decision, is there no contradiction in terms? Why?
There is no contradiction. This is because the Rules do not say
that simply because the defendant has appealed from the
judgment, the MTC cannot go on with execution of its
judgment. Thus, although appealable, the decision is
immediately executed.
If defendant does not want to be evicted right away on
appeal, Rule 70 requires the defendant can file supersideas
bond duly approved by the MTC [current rentals earned,
referring to the preceding month, according to the contract of
lease or the terms of the decision, plus cost of suit] to the
cashier of the RTC. While the case is on appeal, defendant
should keep on depositing said bond (monthly basis if rent is
paid monthly according to the contract of lease). Failure to do
so, he will be evicted, but the appeal continues.
How is the execution of judgment stayed?
A: Defendant must take the following steps to stay the
execution of the judgment:
1. Perfect an appeal;
2. File a supersideas bond to pay for the rents, damages and
costs accruing down to the time of the judgment appealed
from; and
3. Deposit periodically with the RTC, during the pendency of
the appeal, the adjudged amount of rent due under the
contract or if there be no contract, the reasonable value of
the use and occupation of the premises (Sec. 19, Rule 70).
Q: When is demand necessary?
A: Unless there exists a stipulation to the contrary, an
unlawful detainer case shall be commenced only after the
demand to pay or comply with the conditions of the lease and
to vacate is made upon the lessee (Sec. 2). The requirement
for a demand implies that the mere failure of the occupant to
pay rentals or his failure to comply with the conditions of the
lease does not ipso facto render his possession of the
premises unlawful. It is the failure to comply with the demand
that vests upon the lessor a cause of action.
Q: In what form should the demand be made?
A: The demand may be in the form of a written notice served
upon the person found in the premises. The demand may also
be made by posting a written notice on the premises if no
person can be found thereon (Sec. 2). It has been ruled,
however, that the demand upon a tenant may be oral
(Jakihaca vs. Aquino, 181 SCRA 67) . Sufficient evidence must
be adduced to show that there was indeed a demand like
testimonies from disinterested and unbiased witnesses.
The RTC is the appellate court in FE and UD cases. If the
RTC decides against appellant/tenant and the tenant
appealed in the CA, what can be done to prevent eviction
on appeal to the CA under Rule 65?
The filing of a supersideas bond cannot be applicable this
time. This process will apply if the decision appealed upon is a
decision of the MTC. If the RTC decides in favor of the land
lord, the judgment will still be executed as a matter of right,
and eviction can be had. The only way to prevent the
immediate eviction of the defendant tenant on appeal to
the CA is to apply for a TRO or writ of preliminary
injunction in the CA against the eviction of the tenant,
subject to filing of a bond if required by the CA.
There are mechanisms resorted to by a tenant in order to
delay an action to recover possession of property
What can the tenant file to protect his right to possess?
~In case of UD, the tenant can file a case for reconveyance or
reversion of tenanted property in the RTC
~He can also file a case for Quieting of Title in the RTC
~Complaint for Recovery of Possession in the RTC
The tenant filed a case for reconveyance of the property
subject to the lease in the RTC. During the pendency of
the case, the land lord filed a case for FE or UD to recover
of possession of the property subject to the lease. The
tenant asked the RTC to issue a writ of injunction or TRO
against the MTC, in order to prevent it from trying the
case for FE or UD. Is this allowed?
No. This is a settled issue. The tenant shall not be allowed to
cause the injunction of the case in the MTC. Although these 2
cases filed in different courts involve the same property, they
do not involve the same issue. FE and UD involve the issue of
physical possession of the property. In reconveyance or
quieting of title, the issue is also possession, but it is what is
called in the NCC as a real right of possession, not mere
physical possession of the property. The SC had made it very
clear that we can have a case for FE or UD filed by the land
lord against the tenant pending in the MTC, and at the same
time, a case for reconveyance to reacquire the same property
subject to the lease pending before the RTC. SC held that
there is no litis pendencia here. Also, RTC cannot enjoin MTC
from trying the complaint for FE or UD, as MTC has exclusive
jurisdiction over cases of FE or UD.
Can the court grant injunction while the case is pending?
A: The court may grant preliminary injunction, in accordance
with the provisions of Rule 58, to prevent the defendant from
committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry
or unlawful detainer may, within five (5) days from the filing
of the complaint, present a motion in the action for forcible
entry or unlawful detainer for the issuance of a writ of
preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty
(30) days from the filing thereof (Sec. 15, Rule 70).
Note: Prior demand to vacate and to pay is jurisdictional in
unlawful detainer, but not in all cases.
If the tenant had failed to pay rents for 3 months, and the
land lord immediately filed a case for UD without a prior
demand to vacate and to pay, the MTC does not acquire
jurisdiction over the case. A demand to vacate and to pay is
jurisdictional in FE or UD. But not in all cases.
IMPLIED NEW LEASE
In the NCC there are provisions governing the
relationship of land lord and tenant once the lease has
expired. – If the tenant had remained in unlawful possession
by tenant was retained after 15 days from the end of the
lease, there is an implied new lease, but such implied new
lease will be on a month-to-month, day-to-day or quarterly
basis, depending on the previous contract of lease as to period
of payment.
Art. 1670. If at the end of the contract the
lessee should continue enjoying the thing
leased for fifteen days with the
acquiescence of the lessor, and unless a
notice to the contrary by either party has
previously been given, it is understood that
there is an implied new lease, not for the
period of the original contract, but for the
time established in Articles 1682 and 1687.
The other terms of the original contract shall
be revived.
At the end of the lease contract until the 15th day, the tenant
is deemed to be in unlawful possession of the leased property.
There is no need for the land lord to send a demand to vacate
to make the tenant an unlawful possessor, as he became so
from the operation of the NCC. Within the 15-day period, the
land lord can properly file a case for unlawful detainer against
the tenant by virtue of the termination of the lease. The NCC
itself calls the tenant as an unlawful possessor if he does not
surrender the property after the lease has already
terminated. The NCC has a caveat. If the tenant, after the
termination of the lease, remains in possession of the
property for the next 30 days from the termination of the
lease, and there is no action filed by the land lord in court, the
unlawful possession by the tenant will be reconverted to a
lawful possession because of the implied new lease. The
implied new lease is not for the same period stipulated in the
old contract of lease. It will be on a month-to-month, day-to-
day or quarterly basis, depending on the previous contract of
lease as to period of payment
Propriety of the awarding of damages in FE and UD.
There is a conflict in jurisprudence as to extent of damages
that could be awarded. The Section 1 of Rule 70 authorizes
awarding of damages, but it does not place a limit on the kind
of damages to be awarded. In Sec. 17, there is a clear
statement as to award of damages being a reasonable amount
as compensation for the use of the property if no amount is
stipulated in the lease contract.
SECTION 1. Who may institute proceedings,
and when.—Subject to the provisions of the next
succeeding section, a person deprived of the
possession of any land or building by force,
intimidation, threat, strategy, or stealth, or a
lessor, vendor, vendee, or other person against
whom the possession of any land or building is
unlawfully withheld after the expiration or
termination of the right to hold possession, by
virtue of any contract, express or implied, or the
legal representatives or assigns of any such
lessor, vendor, vendee, or other person may at
any time within one (1) year after such unlawful
deprivation or withholding of possession, bring
an action in the proper Municipal Trial Court
against the person or persons unlawfully
withholding or depriving of possession, or any
person or persons claiming under them, for the
restitution of such possession, together with
damages and costs.
SEC. 17. Judgment.—If after trial the court finds
that the allegations of the complaint are true, it
shall render judgment in favor of the plaintiff for
the restitution of the premises, the sum justly
due as arrears of rent or as reasonable
compensation for the use and occupation of
the premises, attorney’s fees and costs. If it
finds that said allegations are not true, it shall
render judgment for the defendant to recover
his costs. If a counterclaim is established, the
court shall render judgment for the sum found in
arrears from either party and award costs as
justice requires.
There is a decision by the SC which held that Section 1 should
be implemented if fully proven in court. Moral damages,
temperate damages, as well as other forms of damages may
be awarded beside interest and the actual rent.
The greater number of SC decisions adhere to Section 17 Rule
70. There is a limit as to the award of damages that could be
had in MTC, and the MTC had always followed strictly the
provisions of Section 17. The award of damages is based on
the amount stated in the contract as rentals or if none, a
reasonable amount for the use of the property during the
tenantship.
Rule 71 CONTEMPT
What is contempt?
A: It is a defiance of the authority, justice or dignity of the
court; such conduct as tends to bring the authority and
administration of the law into disrespect or to interfere with,
or prejudice litigant or their witnesses during litigation (Halili
v. CIR, G.R. No. L-24864, Nov. 19, 1985)

In what instances may the court resolve issue of
ownership?
A: When the defendant raises the issue of ownership, the
court may resolve the issue of ownership only under the
following conditions:
(a) When the issue of possession cannot be resolved without
resolving the issue of ownership; and
(b) The issue of ownership shall be resolved only to determine
the issue of possession (Sec. 16).
Note: It is commenced by a verified petition with supporting
particulars and certified true copies of documents or papers
involved therein (Sec. 4).
Q: What are the kinds of contempt?
A:
1. Direct or indirect, according to the manner of commission.
2. Civil or Criminal, depending on the nature and effect of the
contemptuous act.

Note: The assertion by the defendant of ownership over the

Q: Distinguish direct from indirect contempt?
disputed property does not serve to divest the inferior court
A:
of its jurisdiction. The defendant cannot deprive the court of
jurisdiction by merely claiming ownership of the property Direct Contempt Indirect Contempt
involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA Committed in the presence Not committed in the
742; Perez vs. Cruz, 404 SCRA 487) .If the defendant raises the of or so near a court. presence of the court.
question of ownership and the issue of possession cannot be Summary in nature Punished after being charged
resolved without deciding the question of ownership, the and heard
issue of ownership shall be resolved only to determine the If committed against: IF COMMITTED AGAINST:
issue of possession (Sec. 3, RA 7691). 1. RTC – fine not exceeding 1. RTC – FINE NOT
P2,000 or imprisonment not EXCEEDING P30,000 OR
exceeding 10 days or both. IMPRISONMENT NOT
2. MTC – fine not exceeding EXCEEDING 6 MONTHS OR interest in the right to be
P200 or imprisonment not BOTH protected
exceeding 1 day, or both. 2. MTC – fine not exceeding Proof required is proof Proof required is more than
P5,000 or imprisonment not beyond reasonable doubt. mere preponderance of
exceeding 1 month or both. evidence
Remedy: Certiorari or Remedy: Appeal (by notice If accused is acquitted, there If judgment is for
prohibition (or you could of appeal) can be no appeal. respondent, there can be an
follow the old jurisprudence, appeal
file a petition for habeas
corpus on the ground that
the confinement is illegal.
Q: What is the purpose of the power to contempt?
Dean Jara)
A: The reason for the power to punish for contempt is that
AKA Contempt in facie AKA Constructive contempt
respect of the courts guarantees the stability of their
curiae (in front of the judge)
institution. Without such guarantee, said institution would be
resting on shaky foundation (Cornejovs.Tan, 85 Phil. 772).

Q: What is the nature of contempt power?

Distinguish criminal contempt from civil contempt. A: The power to punish for contempt is inherent in all courts;
A: its existence is essential to the preservation of order in
Criminal Contempt Civil Contempt judicial proceedings and to the enforcement of judgments,
Punitive in nature Remedial in nature orders and mandates of the courts, and, consequently, to the
Purpose is to preserve the Purpose is to provide a due administration of justice.
court’s authority and to remedy for an injured suitor
punish disobedience of its and to coerce compliance Q: What are the dual aspects on the power to punish
orders with an order for the contempt?
preservation of the rights of A:
private persons 1. Primarily, the proper punishment of the guilty party for his
Intent is necessary Intent is not necessary disrespect to the courts; and
State is the real prosecutor Instituted by the aggrieved 2. Secondarily, his compulsory performance of some act or
party or his successor or duty required of him by the court and which he refuses to
someone who has pecuniary perform.
 2. Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including the
Contempt is the one that we can consider as a special civil act of a person who, after being dispossessed or
action for the following reasons: ejected from any real property by the judgment or
process of any court of competent jurisdiction, enters
Contempt is a special civil action where one can be sent to
or attempts or induces another to enter into or upon
jail whereas the case is civil in character.
such real property, for the purpose of executing acts of
ownership or possession, or in any manner disturbs the
There is no need to file a case, especially in direct
possession given to the person adjudged to be entitled
contempt. In ordinary cases, if there is no complaint, the
thereto;
contender does not know who the plaintiff is, and he is
appearing before a court before a plaintiff can be identified.
3. Any abuse of or any unlawful interference with the
But in direct contempt, it is clear that the plaintiff is the
processes or proceedings of a court not constituting
court. A contender would practically have no chance to win in
direct contempt under section 1 of this Rule;
this instance.

4. Any improper conduct tending, directly or indirectly,

The complainant is the court, and the one who will decide
to impede, obstruct, or degrade the administration of
the case is still the complaining court.
justice;

What are the acts which are deemed punishable as

indirect contempt?
A:After a charge in writing has been filed, and an opportunity
given to the respondent to comment thereon within such
period as may be fixed by the court and to be heard by
himself or counsel, a person guilty of any of the following acts
may be punished for indirect contempt:
1. Misbehavior of an officer of a court in the
performance of his official duties or in his official
transactions;
5. Assuming to be an attorney or an officer of a court,
and acting as such 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 by virtue of an
order or process of a court held by him (Sec. 3).
Note: Failure by counsel to inform the court of the death of
his client constitutes indirect contempt within the purview of
Sec. 3, Rule 71, since it constitutes an improper conduct
tending to impede the administration of justice.
Q: How may an action for indirect contempt be
commenced?
A:
1. By order or other formal charge by the court requiring the
respondent to show cause why he should not be punished for
contempt (motu propio); or (Show cause order)
2. By a verified petition with supporting particulars and
certified true copies of the necessary documents and papers
(independent action) (Sec. 4). (Separate petition)
Note: The first procedure applies only when the indirect
contempt is committed against a court or judge possessed and
clothed with contempt powers.
The second mode applies if the contemptuous act was
committed not against a court or a judicial officer with
authority to punish contemptuous acts. (Nazareno v. Barnes,
G.R. No. L-59072, Apr. 25, 1984)
The court does not declare the respondent in default since the
proceeding partakes the nature of a criminal prosecution
(Fuentes v. Leviste, G.R. No. L-47363, Oct. 28, 1982).
Indirect contempt is initiated through:
1. show cause order
2. independent action, which the court may consolidate with
the main case
If there is a separate petition for indirect contempt filed,
although it arises out of a pending case or is related to a
pending case, the petition is still an independent case, and
what the court usually does is to consolidate the pending case
with the petition to cite respondent in contempt of court.
Penalty in Contempt Cases
The penalty may be payment of fine or imprisonment.
Q: What are the procedural requisites before the accused
may be punished for indirect contempt?
A:
1. A charge in writing to be filed;
2. An opportunity for the person charged to appear and
explain his conduct; and
3. To be heard by himself or counsel. (Regalado v. Go, G.R.
No. 167988, Feb. 6, 2007)
NOTE: The rules on contempt under Rule 71 apply to contempt
committed against persons or entities exercising quasi-
judicial functions or in case there are rules for contempt
adopted for such bodies or entities pursuant to law, Rule 71
shall apply suppletorily (Sec 12, Rule 71)
Because of the nature of direct contempt proceedings where
there is no initiatory proceeding filed, the remedy of the
contender is different from the remedy of the contender in
indirect proceedings.
Citation for indirect contempt is not immediately
executory, according to current jurisprudence. That is why BP 129 has done away with bond in cases of contempt. But, a
there is a remedy provided for in the Rules bond is still required to be posted in APPEALING the
judgment of contempt in order to suspend the execution
Q: Lawyer Mendoza, counsel for the accused in a criminal thereof.
case, was cited for direct contempt by Judge Tagle and
was sentenced to 10 days imprisonment. Lawyer Mendoza
was placed in prison immediately. Lawyer Mendoza What is the remedy against direct contempt and its
manifested his readiness to post a bond and to appeal the penalty?
order by certiorari to stay its execution but Judge Tagle A:
said that the order is immediately executory. Is Judge
1. The penalty for direct contempt depends upon the court
Tagle correct?
which the act was committed;
A: No. An order of direct contempt is not immediately
a. If the act constituting direct contempt was
executory or enforceable. The contender must be afforded
committed against an RTC or a court of equivalent
a reasonable remedy to extricate or purge himself of the
or higher rank, the penalty is a fine not exceeding
contempt. Under Sec. 2, Rule 71, of the Rules of Court, a
2,000 pesos or imprisonment not exceeding 10
person adjudged in direct contempt by any court may not
days, or both;
appeal therefrom, but may avail himself of the remedies of
b. If the act constituting direct contempt was
certiorari or prohibition. The execution of the judgment shall
committed against a lower court, the penalty is a
be suspended pending resolution of such petition, provided
fine not exceeding 200 pesos or imprisonment not
such person files a bond fixed by the court which rendered
exceeding one (1) day, or both(Sec. 1)’;
the judgment and conditioned that he will abide by and
perform the judgment should the petition be decided against c. If the contempt consists in the refusal or
him (Tiongco v. Judge Salao, A.M. No. RTJ-06-2009, July 27, omission to do an act which is yet within the power
2006). of the respondent to perform, he may be
imprisoned by order of the court concerned until
he performs it.
Contender’s remedy in indirect contempt is an ordinary
appeal as in criminal cases. In indirect contempt, if
contender is found guilty, he has the right to appeal. 2. A person adjudged in direct contempt may not appeal
therefrom. His remedy is a petition for certiorari or
prohibition (Rule 65) directed against the court which
In Direct Contempt, the remedy is Rule 65 or Habeas
adjudged him in direct contempt (Sec. 2). Pending the
Corpus.
resolution of the petition for certiorari or prohibition,
the execution of the judgment for direct contempt shall
be suspended. The suspension however shall take place
only if the person adjudged in contempt files a bond
fixed by the court which rendered the judgment. This
bond is conditioned upon his performance of the judgment
should the petition be decided against him.
What is the remedy against indirect contempt and its
penalty?
A:
1. The punishment for indirect contempt depends upon the
level of the court against which the act was committed;
(a) Where the act was committed against an RTC or a
court of equivalent or higher rank, he may be
punished by a fine not exceeding 30,000 pesos or
imprisonment not exceeding 6 months, or both;
(b) Where the act was committed against a lower
court, he may be punished by a fine not exceeding
5,000 pesos or imprisonment not exceeding one
month, or both. Aside from the applicable penalties, if
the contempt consists in the violation of a writ of
injunction, TRO or status quo order, he may also be
ordered to make complete restitution to the party
injured by such violation of the property involved
or such amount as may be alleged and proved (Sec.
7);
(c) Where the act was committed against a person or
entity exercising quasi-judicial functions, the
penalty imposed shall depend upon the provisions
of the law which authorizes a penalty for contempt
against such persons or entities.
(2) The person adjudged in indirect contempt may appeal
from the judgment or final order of the court in the same
manner as in criminal cases. The appeal will not however
have the effect of suspending the judgment if the
person adjudged in contempt does not file a bond in an
amount fixed by the court from which the appeal is
taken. This bond is conditioned upon his performance of the
judgment or final order if the appeal is decided against (Sec.
11).
Quasi-judicial bodies that have the power to cite persons
for indirect contempt pursuant to Rule 71 of the Rules of
Court can only do so by initiating them in the proper RTC.
It is not within their jurisdiction and competence to
decide the indirect contempt cases.
Q: May a non-party be held for contempt?
A: No, unless he is guilty of conspiracy with any one of the
parties in violating the court’s orders(DesaEnt., Inc. v. SEC,
G.R. No. L-45430, Sept. 30, 1982).
Q: Ray, through Atty. Velasco, filed a complaint for
quieting of title against Chiz. Chiz, however, interposed
the defense that the documents relied upon by Ray and
Atty. Velasco were forged and falsified. Finding that the
said documents were indeed forged and falsified, Judge
Victoria cited Ray and Atty. Velasco for direct contempt
and ordered them to serve 10 days of detention at the
Municipal Jail. Ray and Atty. Velasco filed a motion for
bail and a motion to lift the order of arrest. But they
were denied outright by Judge Victoria. Is Judge Victoria
correct?
A: No. Direct contempt is a contumacious act done facie
curiae and may be punished summarily without hearing.
Indirect or constructive contempt, in turn, is one perpetrated
outside of the sitting of the court.
Here the use of falsified and forged documents is a
contumacious act. However, it constitutes indirect
contempt not direct contempt. The imputed use of a
falsified document, more so where the falsity of the
document is not apparent on its face, merely constitutes
indirect contempt, and as such is subject to such
defenses as the accused may raise in the proper
proceedings. Thus, following Sec. 3, Rule 71, a contender
may be punished only after a charge in writing has been
filed, and an opportunity has been given to the accused
to be heard by himself and counsel.
Moreover, settled is the rule that a contempt proceeding is
not a civil action, but a separate proceeding of a criminal
nature in which the court exercises limited jurisdiction.
Thus, the modes of procedure and the rules of evidence in
contempt proceedings are assimilated as far as
practicable to those adapted to criminal prosecutions.
Thus, the judge erred in declaring summarily that Ray and
Atty. Velasco are guilty of direct contempt and ordering their
incarceration. He should have conducted a hearing with notice
to Ray and Atty. Velasco (Judge Espanol v. Formoso, G.R. No.
150949, June 21, 2007).
CONTEMPT AGAINST QUASI-JUDICIAL BODIES
Q: What is the rule on contempt against quasi-judicial
bodies?
A: The rules on contempt apply to contempt committed
against persons or entities exercising quasi-judicial
functions or in case there are rules for contempt adopted
for such bodies or entities pursuant to law, Rule 71 shall
apply suppletorily. Quasi-judicial bodies that have the power
to cite persons for indirect contempt can only do so by
initiating them in the proper RTC. It is not within their
jurisdiction and competence to decide the indirect
contempt cases. The RTC of the place where contempt
has been committed shall have jurisdiction over the
charges for indirect contempt that may be filed(Sec. 12).
If one was found guilty of contempt, it is possible other laws
or Rules may be applicable. For example, a lawyer may be
sanctioned under the Code of Professional Ethics. Other laws
may also apply in certain instances although contender was
not found guilty of contempt.
Relate this to the modification under Rule 65. A lawyer
may be cited for indirect contempt, even if there is no show-
cause order, at the discretion of the court. In Rule 65, under
the principle of res ipsa loquitur, the lawyer who files a
patently unmeritorious pleading under Rule 65 can be
cited in indirect contempt, even without a show cause
order.
Note: The punishment is imposed for the benefit of a
complainant or a party to a suit who has been injured aside
from the need to compel performance of the orders or
decrees of the court, which the contemnor refuses to obey
although able to do so. In effect, it is within the power of
the person adjudged guilty of contempt to set himself
free.

In execution of judgment, Contempt is not a usual recourse to

execute a judgment. But, contempt is the only recourse Ordinary Action Special Special Civil
whenever there is a writ or process (like a writ of Proceeding Action
mandamus or prohibition) that is issued by the court that To protect or Involves the Civil Action
is subsequently disobeyed by the contender/respondent. enforce a right or establishment of a subject to specific
We do not use contempt in Rule 39 when it comes to prevent or redress right, status, or rules.
execution of judgments for money or delivery of property. a wrong fact
But when the judgment is about issues in special civil actions,
Involve 2 or more May involve only Involves two or
the only remedy will be a citation for contempt.
parties – plaintiff one party – only more parties
and defendant petitioner
Q: When shall imprisonment be imposed? Governed by Governed by Ordinary rules
A: When the contempt consists in the refusal or omission ordinary rules, special rules, apply primarily but
to do an act which is yet in the power of the respondent supplemented by supplemented by subject to specific
to perform, he may be imprisoned by order of the court special rules ordinary rules rules
concerned until he performs it. Indefinite incarceration
Initiated by a Initiated by a Some are initiated
may be resorted to where the attendant circumstances
complaint, and petition and by complaint,
are such that the non-compliance with the court order is
parties respond parties respond while some are
an utter disregard of the authority of the court which has
through an answer through an initiated by
then no other recourse but to use its coercive power. When a
opposition petition
person or party is legally and validly required by a court to
Heard by courts of Heard by courts of
appear before it for a certain purpose, and when that
general limited jurisdiction
requirement is disobeyed, the only remedy left for the court
jurisdiction
is to use force to bring the person or party before it.
 Issues or disputes Issues are
are stated in the determined by law
pleadings of the
parties
Adversarial Not adversarial
Based on a cause Not based on a Some special civil
of action cause of action action have no
(except habeas cause of action
Corpus)
SPECIAL PROCEEDINGS
Do not rely so much in the enumeration of the special
proceedings in our RoC as some of them are no longer
applicable. Like constitution of a family home, there is no such
proceeding now, a family home is constituted now under the
NCC by operation of law. There is no more need for a judicial
declaration to consider a home as a family home. There is also
no more judicial recognition of illegitimate children. This
concept has been changed also by the FC, where recognition
takes place by operation of law.
Under the present set up, the rules on adoption incorporates
two other special proceedings. Thus presently, we can file a
petition for adoption, plus a petition for change of name, plus
a petition for correction of entry. But the rule is that if there
is a petition for adoption which encompasses tw0 other
proceedings, that petition should also comply with
jurisdictional requirements on change of name and correction
of entries of the records of the local civil registrar.
The 3 most important special proceedings which are often the
source of bar questions, which are asked usually, would be
settlement of estates of deceased persons, habeas corpus
(inclusive of Amparo and Habeas Data) and the adoption.
What makes a proceeding a special proceeding or a
special action that is entertained by the court?
The definition given in the rules is a very clear and simple
definition. A special proceeding is one that is commenced for
the purpose of establishing a right, status or a particular fact.
Intrinsic in this definition of special proceedings therefore is
the conclusion that special proceedings generally are not
designed to be adversarial. There is no contest between 2
contending parties. All you have to do is to look for the
particular fact or status or right which the petitioner seeks to
establish and to be declared by the court.
SETTLEMENT OF ESTATES OF DECEASED PERSONS
With respect to settlement of estates in the concept of
special proceedings, we have to go back to Rule 1 to appreciate
the meaning of a special proceeding.
At the end, the conclusion that we derive from this special
proceeding is that there is a person who is dead. The principal
fact that is sought to be established in settlement of estates
first is that a person is dead. We cannot settle the estate of a
person who is still alive. But because settlement of estate
usually carries with it the concept of probate of a will, there is
some complication because under the NCC, under substantive
law, a will can be submitted for probate during the lifetime of
the testator. So, it is not correct to assume, that when there
is a petition for a probate of a will, the testator is already
dead.
Under substantive law, the testator himself, during his
lifetime, can file a petition in the RTC for the probate of the
will. The complication arises because when it is the testator
who files a petition for the probate of his own will during his
lifetime, and that will is admitted to probate, it is allowed by
the RTC, that will be the end of the probate proceedings.
There will be no settlement of estates that will follow. That is
the only fact that needs to be established in a probate of a will
while the testator is still alive. What he seeks from the court
is a mere declaration that the will has been executed in
accordance with the formalities of the NCC. When the will is
admitted to probate, where the petitioner is the testator
himself, the admission to probate will mark the end of the
special proceedings. No settlement of estate will follow.
Q: What is probate?
A: Probate is the act of proving before a competent court the
due execution of a will by a person possessed of testamentary
capacity, as well as the approval thereof by said court, (also
known as Allowance of Will).
Q: Why is probate necessary?
A: To settle all questions concerning the capacity of the
testator and the proper execution of his will, irrespective of
whether its provisions are valid and enforceable. (Fernandez v.
Dimagiba, G.R. No. L-23638, Oct. 12, 1967)
Q: What is the nature of a probate proceeding?
A:
1. IN REM- It is binding upon the whole world.
2. MANDATORY- No will shall pass either real or personal
property unless it is proved and allowed in the proper court.
Note: However, a will may be sustained on the basis of
Article 1080 of the NCC which states that, “if the
testator should make a partition of his property by an
act inter vivos or by will, such partition shall stand in so
far as it does not prejudice the legitime of the forced
heir. (Mang- Oy v. CA, L-27421, 1986)
3. IMPRESCRIPTIBLE- because of the public policy to obey
the will of the testator
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- the probate
of the will is mandatory. The presentation and probate of the
will is required by public policy. It involves public interest.
(Fernandez v. Dimagiba, L- 23638, 1967)
Q: Does the probate court look into the intrinsic validity
of the will?
A:
GR: The jurisdiction of probate court is limited to the
examination and resolution of the extrinsic validity of a will.
XPNS: Principle of practical considerations wherein the court
may pass upon the intrinsic validity of the will:
1. If the case where to be remanded for probate of the will, it
will result to waste of time, effort, expense, plus added
anxiety; as in the case of absolute preterition (Nuguid v.
Nuguid, G.R. No. L-23445, June 23, 1966).
2. Where the entire or all testamentary dispositions are void
and where the defect is apparent on its face (Nepomuceno v.
CA, G.R. No. L-62952, Oct. 9, 1985).
Note: Principle does not apply where the meat of the
controversy is not the intrinsic validity of the will.
NOTE: The decree of probate is conclusive with respect to the
due execution of the will and it cannot be impugned on any of
the grounds authorized by law, except by fraud, in any
separate or independent action or proceeding.
WHO MAY PETITION FOR PROBATE
Q: Who may file petition for allowance of will?
A:
1. Executor (Sec. 1, Rule 76);
2. Devisee or legatee named in the will (Sec. 1, Rule 76);
3. Person interested in the estate; e.g. heirs
Note: An interested party is one who would be
benefited by the estate, such as an heir, or one who
has a claim against the estate such as a creditor.
(Sumilang v. Ramagosa, G.R. No. L-23135, Dec. 26, 1967)
4. Testator himself during his lifetime (Sec. 1, Rule 76); or
5. Any creditor – as preparatory step for filing of his claim
therein.
Q: Who are the people entitled to notice in a probate
hearing?
A:
1. Designated or known heirs, legatees and devisees of the
testator resident in the Philippines at their places of
residence, at least 20 days before the hearing, if such places
of residence be known.
2. Person named executor, if he not the petitioner.
3. To any person named as co-executor not petitioning, if
their places of residence be known.
4. If the testator asks for the allowance of his own will, notice
shall be sent only to his compulsory heirs. (Sec. 4, Rule 76)
We compare that to a probate of a will where the testator is
already dead. Since the testator is already dead, the
petitioner could be somebody else interested in his estate, like
an heir, devisee, legatee or creditor of the decedent. In this
second kind of probate of a will where the testator has died,
when the will is admitted to probate, that will not be the end
of the proceedings. In fact, that will mark the beginning of the
settlement of estate of the deceased person. That is the time
when we apply the rules in special proceedings in settlement
of estate of deceased person.
You should be wary about the differences between probate of
a will when the testator is still alive, and the probate of a will
when the testator has already died. When the testator has
already died, the admission to probate of that will not be the
proceedings, it will be the start the settlement of estate.
We should also relate settlement of estate of decease persons
to Rule 107, the Rule on Absentees. When the law speaks
about settlement of estates of deceased persons, the
inference that we derive is that the fact that is sought to be
established is that a person is dead. That is not necessarily
true insofar as probate of will or intestacy is concerned. We
have to relate it to the provisions of the NCC and FC on
absentees, and also the provisions of special proceedings on
absentees in Rule 10.
Even if the testator is not in fact dead, even if the problem is
that the heirs, legatees, devisees and creditors are not certain
whether or not the testator is dead, therefore, the court
cannot simply issue an order declaring he is dead. Under our
present rules, if there are antecedent facts that are proven by
clear and convincing evidence, we can apply the presumption
of death under the NCC, then we can commence a special
proceeding for the settlement of his estate. If we go through
the provisions of Rule 107 on absentees, the first essential is
that a person has left properties without somebody in charge
or without an administrator, and that his whereabouts are
unknown. And then, he has disappeared for at least 2 years.
On the second year of his absence, there could be a petition
for the declaration of his absence. In other words, being
absent is a status under our procedural laws.
This person who has been declared an absentee cannot be an
absentee forever. So there must come a time when the said
status as an absentee could be utilized in order to settle his
estate, and this is the situation contemplated in Rule 107. If
there is enough proof of facts that will allow the court to
conclude that the absentee is already dead, although he is not
actually dead, we can commence proceedings. But the court
will not issue an order declaring the absentee as presumptively
dead. A court does not have any authority at all to issue an
order declaring a person dead by presumption. We just
capitalize on the presumption given in the NCC, that under
circumstances, a person is presumably dead. Using that
presumption, the remedy of the spouse, heirs, or any
interested person is to file a petition for the settlement of
the estate.
So, there could be a petition for the settlement of estates of
a person who is certainly dead. The court will declare that this
person is actually dead, and this can be easily proven by
submission of a certificate of death. But if a certificate of
death cannot be issued or the civil registrar is unwilling to
issue a certificate of death because there is no certainty of
the person’s death, but the antecedent facts proven before
the courts show that we can now make a disputable
presumption that the person is dead, the remedy is to file a
petition for the settlement of his estate.
So it is not always correct to say that in settlement of estates
of deceased persons, that person must be proven to have
really died. That is not what the law requires. What the law
requires is simply the demonstration or proof of certain facts
upon which this disputable presumption of death will be used
in order to settle his estate.
Supposing there are certain facts which will lead to the
conclusion that this person is presumably dead. There are
proceedings initiated for the settlement of his estate.
While the proceedings are going on, or even after the
closure of the settlement proceedings, the person
suddenly reappears. Will the settlement of his estate be
negated?
Not so. He can recover what is left of his properties. Because
in settlement proceedings, we always involve the payment of
his indebtedness to his creditors. If the debts has already
been paid, this person is not allowed to file for the recovery
of the money or other properties that may have been
delivered to the creditors or to the heirs of his estate.
But the procedure that is outlined in our Rules is about
settlement of estate of deceased persons. So that is the first
particular fact that will be established in settlement of estate
of deceased persons. The court will issue an order, let us say,
in admitting the will to probate, the court will make a finding
that the testator is already dead. Then, there will also be a
finding as to the formal validity of the will.
With respect to the jurisdiction, the RoC is not expected to
give us the standard in determining the jurisdiction of courts
in settlement proceedings. The courts will rely on what BP 129
provides. In BP 129, there are 2 courts which are given
authority to take cognizance of estate proceedings, the MTC
and the RTC, depending upon the gross value of the estate,
the same amount used as a standard in ascertaining the
jurisdiction of MTC or RTC in money claims. But it is the
gross value of the estate that will be the principal factor.
Unlike in action reinvindicatoria, the assessed value of the
property will be the standard that will be determining the
jurisdiction of court.
Which court has jurisdiction over the estate of the
deceased?
A:
Regional Trial Court Metropolitan Trial Court
Gross value of the estate Gross value of the estate does
exceeds 500,000 (within not exceed 500,000/400,00
Metro Manila) or 400,000
(outside Metro Manila)
State the rule on venue in judicial settlement of estate
of deceased persons.
A:
Resident Non-Resident
Court of the province/city Court of the province/city
where the deceased resided wherein he had the estate
at the time of death,
whether a citizen or alien
In special proceedings, one Rule that you should always bear in
mind is that when a court entertains a special proceeding, that
court, RTC or MTC, acts with a very limited jurisdiction. So, if
the settlement is in the RTC, although the RTC is
characterized as a court of general jurisdiction under BP 129,
when an RTC tries a proceeding for settlement of the estate,
the RTC acts with a limited jurisdiction. The same is true with
the rest of special proceedings. When the RTC acts as a
habeas corpus or amparo or habeas data court, the RTC acts
with a very limited jurisdiction. In other words, what can be
resolved by the RTC in these special proceedings will only be
the issue that is raised in the petition. It cannot be expanded.
For instance, when the RTC acts as a settlement court, and
there is a dispute between a stranger and the executor,
concerning the ownership of a piece of land which the
executor claims to be owned by the estate of the deceased,
and which according to the stranger is owned by him, the
settlement court has no authority to rule on that issue. Title
of this real property has to be resolved in an independent
proceeding, an ordinary action of accion reinvindicatoria.
To illustrate why a habeas corpus, amparo or habeas data
court has limited jurisdiction, in a petition for habeas corpus,
if the habeas corpus court makes a finding that the petitioner
has been unlawfully deprived of his liberty by the respondent,
the habeas corpus court cannot award damages for unlawful
deprivation of liberty. It is enough for the habeas corpus court
to say that there was unlawful deprivation of liberty. But the
court cannot go further by awarding damages in favor of the
petitioner. That is always the rule that we follow in special
proceedings. Any court in a special proceeding acts within a
limited jurisdiction. The jurisdiction is limited to the issue that
should be resolved by the special proceeding involved.
Q: May probate courts determine issues of ownership in
a proceeding for the settlement of estate of decedent?
Explain.
A:
GR: No, because probate courts are courts of limited
jurisdiction.
XPNS:
1. Provisionally, for the sole purpose of including the property
in the inventory, without prejudice to its final determination
in a separate action;
2. When all the parties are heirs of the decedent and they
agreed to submit the issue of ownership to the probate court,
provided that no rights of third persons are prejudiced;
3. If the question is one of collation or advancement; or
4. If the parties consent to the assumption of jurisdiction by
the probate court and no rights of third parties are
prejudiced. (Agpalo, Handbook on Special Proceedings, pp. 10-
12, 2003 ed.)
Q: The probate court ordered the inclusion of a parcel of
land registered in the name of Richard in the inventory
of the properties of the deceased Anna. Richard opposed
the inclusion arguing that the probate court cannot
determine the issue of the ownership of the parcel of
land inasmuch as the same was registered in his name. Is
Richard correct?
A: Yes. In probate proceedings, if a property covered by
Torrens title is involved, the presumptive conclusiveness of
such title should be given due weight, and in the absence of
strong compelling evidence to the contrary, the holder
thereof should be considered as the owner of the property in
controversy until his title is nullified or modified in an
appropriate ordinary action, particularly, when as in the case
at bar, possession of the property itself is in the persons
named in the title (Luy Lim v. CA, G.R. No. 124715, Jan. 24,
2000).
It is not also correct to assume that when a person dies, his
estate can be settled only through this special proceeding of
settlement of estate. It is very clear from the Rules that if a
person dies, the heirs can agree among themselves to settle
his estate without going to court through the scheme of
extra-judicial partition. They can agree to divide among
themselves what has been left by the decedent. They can do
so voluntarily. But there are certain essentials like there must
be no will that has been left by the decedent, that there are
no creditors, and that all heirs are of age, or if some are
minors or incapacitated, they are properly represented
properly by a guardian.
If a person dies, he has left sizable properties, and the spouse
and the children are in good terms, there is no will, and there
are no creditors, then the surviving spouse and the children
can simply execute what is called a deed of extra-judicial
partition. If there is one heir, then he will just institute a
document called an affidavit of self-adjudication. The deed of
extra-judicial partition or affidavit of self-adjudication will
have to be registered with the Office of the Registry of
Property, especially when there are properties involved, in
order to enable the parties or the only heir to get a title in
their or his own name. By virtue of the presentation of the
deed of extra-judicial partition or affidavit of self-
adjudication, if there are titled properties that have been left,
the title of the deceased will be cancelled, and a new one will
be issued in the name of his heirs or only case, as the case
may be.
What protection do we give to the creditors, if there are
any, or even to the Republic of the Philippines?
Insofar as the Republic of the Philippines, the interest of the
state will be in recovering taxes arising from the death of the
person if he left sizable properties. Insofar as creditors are
concerned, they are interested in getting full payment of
their respective claims. The protection given by our Rules is
that when it comes to taxes due, the RoD will not accept for
registration an deed of extra-judicial partition or affidavit of
self-adjudication unless the interested parties present to the
civil registrar a certification from the BIR that taxes have
been paid. So that solves the problem of the state. It may
always be able to recover the taxes due, because if the BIR
does not issue this certification, the civil registrar also will not
accept for registration the deed of extra-judicial partition or
affidavit of self-adjudication.
The situation of the creditors, if there are any, entails a
bigger problem, because the RoD has the ministerial duty to
accept a deed of extra-judicial partition or affidavit of self-
adjudication for registration. The RoD simply cannot compel
the parties to that deed of extra-judicial partition or affidavit
of self-adjudication to present proof that there are really no
creditors of the estate. The RoD will have to rely on the say
so of the parties who have signed the deed of extra-judicial
partition or affidavit of self-adjudication. And in that deed or
affidavit, the parties are required to state that there is no
will, and that there are no debts. So if these parties are telling
a lie, they know that there are creditors but they state
otherwise, then the creditors will be at the losing end. They
need protection for their claims.
What the law provides is that if the estate settled consists of
both personal and real properties, before the RoD will accept
these documents for registration, the interested parties must
file a bond equivalent to the value of the personal properties.
Again, the parties can easily avoid this requirement by simply
stating in the deed that there are no personal properties
involved, so they need not pay the bond. If there are no
personal properties of the estate, then there is no
requirement for the interested parties to submit a bond to
the RoD.
So if the estate consists purely of real titled properties, the
RoD will admit the documents for the registration, he will
cancel the title of the decedent and issue new ones in the
name of the interested parties. But at the back of the title of
the new owners, there is annotated a lien, that the property is
subject to the claims of any creditors within a period of 2
years. The 2-year period, according to jurisprudence, is really
extended by another 2 years. The SC ruled that if there is a
title carrying this annotation, a person interested in the
property, like an heir who has been deprived of his share, or
even a creditor, can file an ordinary civil action for the
annulment of the writ of extra-judicial partition within 4
years from the discovery of fraud. So that 2-year period, if
we apply that decision of the court, will be extended to
another 4 years, and the 4-year period shall be counted from
the discovery of fraud. It is fraudulent for the heirs or
interested parties to extra-judicially partition the estate of a
deceased person without including all the heirs. So an heir so
excluded can always contend that there was fraud in the
execution of that document, and he has a period of 4 year
within which to file an ordinary action for the setting aside or
annulment of the deed of extra-judicial partition.
Q: What is the effect of an extra-judicial partition
executed without the knowledge and consent of the
other co-heirs?
A: It shall not prejudice the co-heir who had no knowledge nor
consented to the same. He shall have the right to vindicate his
inheritance. Such heir or such other person deprived of his
lawful participation payable in money may compel the
settlement of the estate in courts for the purpose of
satisfying such lawful participation. (Sec. 4, Rule 74)
Q: What is the effect of an extra-judicial partition
executed without the knowledge and consent of the
other co-heirs?
A: It shall not prejudice the co-heir who had no knowledge nor
consented to the same. He shall have the right to vindicate his
inheritance. Such heir or such other person deprived of his
lawful participation payable in money may compel the
settlement of the estate in courts for the purpose of
satisfying such lawful participation. (Sec. 4, Rule 74)
TWO-YEAR PRESCRIPTIVE PERIOD
Q: When does the two year period rule apply?
A: After the expiration of two years from the extra-judicial
partition, distributees or heirs are barred from objecting to an
extra- judicial partition. The two year prescriptive period
applies only:
1. To persons who have participated or taken part or
had notice of the extra-judicial partition; and
2. When all the persons or heirs of the decedent have
taken part in the extra-judicial settlement or are
represented by themselves or through their guardians.
Note: It is only a bar against the parties who had not taken
part in the extra-judicial proceedings, but not against third
persons not parties thereto. (Herrera, Remedial Law III-A, 39)
Q: Does the two year period apply for a claim of minor or
incapacitated person?
A: If on the date of the expiration of the period of two years
prescribed, the person authorized to file a claim is a minor or
mentally incapacitated, or is in prison or outside the
Philippines, he may present his claim within one year after
such disability is removed. (Sec. 5, Rule 74)
The deed of extra-judicial partition or affidavit of self-
adjudication should also be published, once a week for three
consecutive weeks, before the RoD will admit it for purposes
of registration.
When is extra judicial settlement by agreement between
the heirs allowed? (Substantial Requisites)
A:
When the decedent:
1. Left no will and no debts; and the heirs are all of age; and
2. Of the minors are represented by their judicial or legal
representatives duly authorized for the purpose.
Q: What are the requisites before an extra-judicial
settlement of estate could be resorted to as evidence of
its validity? (Procedural Requisites)
A:
1. Settlement is made in a public instrument or by affidavit of
adjudication in the case of a sole heir;
Note: In case of disagreement of heirs, they may state their
oppositions in an ordinary action of partition.
2. Filed with the Register of Deeds;
3. Fact of settlement must be published in a newspaper of
general circulation once a week for 3 consecutive weeks; and
4. Bond filed equivalent to the value of personal property.
(Sec. 1, Rule 74)
Note: While the Rules of Court provide that the decedent
must not have left any debts, it is sufficient if any debts he
may have left have been paid at the time the extra-judicial
settlement is entered into (Guico v. Bautista, G.R. No. L-
14921, Dec. 31, 1960). It is a disputable presumption that the
decedent left no debts if no creditor files a petition for letters
of administration within two years after the death of the
decedent.
Q: What is a bond?
A: It is the value of the personal property certified by the
parties under oath and conditioned upon payment of just
claims under Section 4, Rule 74.

Note: The amount of bond required under Section 2 is
determined by the COURT whereas in Section 1 the amount is
EQUAL TO THE VALUE OF THE PERSONAL PROPERTY as
established by adjudication.
Q: When is a bond required to be filed in extra-judicial
settlement of estate?
A: When personal property is involved, a bond is required. On
the other hand, if it is a real property, it is subject to a lien in
favor of a creditor for 2 years from distribution and such lien
cannot be substituted by a bond. (Sec. 1, Rule 74)
Note: The same provision on the bond and lien also applies in
summary settlement of estate. (Sec. 2, Rule 74)
Q: Is a public instrument necessary for the validity of the
extra-judicial settlement?
A: No, the requirement of public instrument is not
constitutive of the validity but is merely evidentiary in nature
(Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947) . Even a
private instrument, oral agreement of partition or
compromise agreement entered into without previous
authority from the court is valid. However, reformation of the
instrument may be compelled.
Note: Public instrument is required in transfer and
registration of title to the heirs.
Q: Why is publication of the extra-judicial settlement
necessary?
A: To notify and bind the whole world of the extra-judicial
settlement and give the concerned parties a chance to come
forward and challenge the same (Sec. 1, Rule 74).
Note: Publication alone does not suffice to bind the excluded
heirs to the extra-judicial settlement unless he did not
participate in the proceedings.
Q: What is the effect if the provisions on notice or
participation requirement under Sec. 1, Rule 74 have been
strictly complied with?
A: It bars distributees or heirs from objecting to an extra-
judicial partition after the two-year prescriptive period to
question such partition. (Sec. 4, Rule 74)
But if the parties cannot settle extrajudicially, then the only
recourse will be to go to court, so that the court will decide
the manner by which the properties of the estate should be
divided among the heirs. In this situation, the parties are not
required file a case for settlement of the estate. There is still
another option given in these special civil actions. The special
civil action of Partition under Rule 69 is also available as a
remedy in order to divide the estate of the decedent.
If you go back to partition, partition as a special civil action is
predicated on the theory that there are several co-owners of
the same property, and one of the co-owners decide to leave
the co-ownership. This is related to settlement of estates
because under substantive law, when a person dies, the heirs
automatically become co-owners of the estate of the
decedent. So if there is a co-ownership created by operation
of law, any one of the co-owners can decide to leave the co-
ownership by simply availing of the special civil action for
partition.
But a special civil action of partition as given in Rule 69 is not
in rem. It cannot prejudice persons who have not participated
in these proceedings. So if there is an heir or creditors who
has not been impleaded in this special civil action for partition,
that deed of partition duly approved by the court will not have
the effect of a judgment in rem. That is always the advantage
of a settlement proceeding as a special proceeding, the
judgment and final orders of the court in a settlement
proceeding are in rem. They will be enforceable against any
person who might have an interest in the properties of the
estate. That is the only advantage of settling the estate of a
deceased person through a petition for probate of a will, or if
there is no will, through a petition for the issuance of letters
of administration.
In settlement proceedings, we have to determine whether
there is a will or none. Under substantive law, whose
provisions are practically reproduced in the RoC, before the
will would be a basis for the division or giving of the properties
of the estate to the heirs, devisees or legatees, the will must
be admitted to probate. If not admitted to probate, it could
not be the proper basis for the division, even if the parties will
state in their agreement that they have divided the estate in
accordance with the provisions of the last will and testament.
The SC has repeatedly held that if there is a will, that will
must be submitted to the court for probate, so that it can be
a source of a right given to an heir, a devisee or legatee.
Without an order from the court allowing or admitting the will
for probate, a person who benefited from the provisions of
that will cannot enforce his right. There must always be first
an order coming from the court admitting the will or allowing
the probate of the will.
In order to appreciate the scope of an order of a court
admitting a will to probate, read Rule 39, that is the effect of
a judgment in rem in Section 47(a).
SEC. 47. Effect of judgments or final orders .—
The effect of a judgment or final order rendered
by a court of the Philippines, having jurisdiction
to pronounce the judgment or final order, may
be as follows:
(a) In case of a judgment or final order
against a specific thing, or in respect to the
probate of a will, or the administration of the
estate of a deceased person, or in respect to
the personal, political, or legal condition or
status of a particular person or his
relationship to another, the judgment or
final order is conclusive upon the title to the
thing, the will or administration, or the
condition, status or relationship of the
person; however, the probate of a will or
granting of letters of administration shall
only be prima facie evidence of the death of
the testator or intestate;
 (b) In other cases, the judgment or final
order is, with respect to the matter directly
adjudged or as to any other matter that could
have been raised in relation thereto, conclusive
between the parties and their successors in
interest by title subsequent to the
commencement of the action or special
proceeding, litigating for the same thing and
under the same title and in the same capacity;
and
(c) In any other litigation between the
same parties of their successors in interest, that
only is deemed to have been adjudged in a
former judgment or final order which appears
upon its face to have been so adjudged, or which
was actually and necessarily included therein or
necessary thereto.
Rule 39 gives us the effect of a judgment in rem. A judgment
admitting a will to probate is a judgment in rem. It is binding
upon anybody who might have interest in the estate. In fact,
the NCC says that an order of a court admitting the will to
probate is conclusive insofar as the formal requirements of a
will are concerned.
Supposing that a will is admitted to probate, can the
oppositors appeal from that order?
Yes.
If there is an appeal from an order of the court allowing a will,
we cannot apply the statement in Rule 39 that probate of a
will is conclusive insofar as the formal elements are concerned
because that order, if there is an appeal going on, will not be
entered. That provision in Rule 39 presupposes that an order
admitting the will has been entered. It has become final and
executory. ‘
But before it is entered, do we have the presumption
that the formal requisites of the will have been
satisfied?
Yes. But the presumption is not a conclusive presumption,
merely disputable. Under our Rules on Evidence, there is a
disputable presumption that the final order or judgment of a
court is presumed to be correct, that is if it has not yet been
entered. Once entered, the period to appeal having expired
without an appeal being perfected, then the disputable
presumption to a conclusive presumption. So once the order
admitting the will to probate is entered, then we are going to
apply the provisions of Rule 39 Section 47. The formal
requisites of the will are conclusive upon anybody who might
have an interest in the estate.
If there is no will, the settlement proceedings will be called
intestate proceedings. If there is a will, it will be called testacy
or probate proceedings. But in our Rules, whether the special
proceeding to settle the estate is testate or intestate, there
should be only one settlement court in our jurisdiction.
So if there is a petition to settle where the decedent died
without a will, praying for letters of administration,
during the pendency proceedings after the letters had
been issued by the court, an heir suddenly appears in
court claiming he has discovered a will of the decedent.
What will happen to the proceedings of intestacy?
The court will change the proceedings from intestacy to
testacy, simply converting from intestate court to testate or
probate court.
There should only be one settlement court. A court that takes
cognizance of settlement of the estate of a deceased person
does so to the exclusion of all other courts. There is a clear
message that in settlement proceedings, we should only have
one settlement court.
But what always happens, as our culture allows to happen, is
when a person dies and in his lifetime was a very wealthy
person, our culture expects that he was maintaining several
different families in different regions. So when he dies, one
family will file settlement proceedings for the estate located,
let’s say in Mindanao, and another family would do so also for
the property found in Cebu, and so forth. We cannot allow this
to happen where several courts take cognizance of the
properties of one decedent. We still have to apply the Rule in
Rule 73, where a court that takes cognizance of the
settlement of the estate of a decedent will do so in exclusion
of other courts. So, it’s just a matter of determining which
RTC has first acquired jurisdiction over the case. The
jurisdiction over the case can be ascertained by determining
the period when these different petitions were filed. Thus, we
will have one settlement court.
The authority of a settlement court will extend to any part of
the country where the decedent left some properties. A
settlement court in Manila will have jurisdiction over
properties left in Cebu or Mindanao. And it is very simple for
the court to acquire jurisdiction over these properties,
because when the court issues letter testamentary or letters
of administration, the administrator is required to submit an
inventory of the estate of the deceased. This inventory must
be complete, an inventory of properties possessed by the
administrator or executor or the properties that have come to
the knowledge of the administrator, though not in his physical
possession. So the settlement court’s authority will be
throughout the country insofar as the properties left behind
by the decedent is concerned.
There is another term used in the Rule aside from letters
testamentary or administration, and it is called letters of
administration with a will annexed.
What is this concept of letters of administration with a
will annexed?
This is the letter issued by the court where there is a will
submitted to probate, but where the executor nominated in
the will has refused to accept the trust or he is not qualified
to accept the trust. So if there is no executor willing to accept
the trust, the court will have to appoint another
administrator. To distinguish an administrator who is usually
appointed where there is no will that is submitted for probate,
we call these letters as letters of administration with a will
annexed.
Letters of administration with a will annexed assume that
there is a will submitted to the court for probate, and that the
court has admitted or allowed the will, but the executor
nominated in the will has refused to accept the position.

In a will, aside from the disposition of the properties, the
decedent usually nominates a person who will act as executor
of the will. This is the reason why in RoC, there is an order of
preference in appointing an administrator. But there is no
order of preference insofar as the appointment of an
administrator in letters of administration with a will annexed.
This is because the court will appoint an administrator despite
the fact that an executor is nominated by the testator in the
will.
You should also note that when a testator names the person
as executor of the estate, that is only a nomination. It is the
court that will appoint him as executor. The proof that he is
now an executor is called letters testamentary; the proof of
the authority of an administrator is called letters of
administration.
We also have the concept of letters of ancillary
administration. In ancillary administration, the antecedent
fact is that a will has been admitted to probate in a foreign
country. The testator must have been a resident of that
foreign country. But the testator also left properties in RP.
So, there is a principal testate proceedings going on in a
foreign country where an executor may have been appointed
in that foreign country. But the authority of the appointed
executor from a foreign court cannot extend to properties
within Philippine territory. The remedy of that executor from
a foreign country is to initiate a proceeding called ancillary
administration proceedings, which be called a reprobate of the
same will of the same will that has been admitted to probate
in a foreign court. That petition for ancillary administration, if
a will has been already admitted to probate in a foreign
country, the same will be submitted to a local court for
another proceeding. The local court will simply rely on the
decision of the foreign court in admitting the will for probate.
If there was no will left by this foreigner, then the ancillary
proceedings will also be an intestate proceeding. It will still be
the local court that will issue letters of ancillary
administration to the administrator appointed by the local
court to take care and to manage the properties left within RP
territory.
There is also another concept called letters of special
administration or a special administrator. These letters are
issued by the court when there is a delay in the appointment
of an administrator or an executor of the estate. If a court
issues letters of administration, and therefore appoints
letters of administration of an intestate estate, or issues
letters testamentary, to the person who will manage the
estate, this is always a final order. The appointment of a
regular administrator is always a final order, never
interlocutory. Since it is a final order, it is appealable. In order
to appreciate in settlement proceedings the difference
between a final order and an interlocutory order in settlement
proceedings, read Rule 109, Section 2.
SEC. 2. Advance distribution in special
proceedings.—Notwithstanding a pending
controversy or appeal in proceedings to settle
the estate of a decedent, the court may, in its
discretion and upon such terms as it may deem
proper and just, permit that such part of the
 estate as may not be affected by the
controversy or appeal be distributed among the
heirs or legatees, upon compliance with the
conditions set forth in Rule 90 of these rules.
FINAL ORDERS
If you go through the provisions of Rule 109, Appeals in
Special Proceedings, right away you will notice that if special
proceedings were governed by the rules of ordinary civil
actions, some of the final orders in special proceedings may
be interlocutory in ordinary civil actions. For instance,
appointing an administrator or executor, if we use the rules in
ordinary civil actions, this appointment will be interlocutory,
because it does not put an end to the case, unlike final order
in ordinary civil actions which put an end to the case. But in
settlement proceedings, what was interlocutory under
ordinary civil proceedings will be a final order in special
proceedings, of which the appointment of an
administrator/executor is a good example. The appointment
of an administrator/executor will not put an end to the
proceedings. In fact, an appointment of an
administrator/executor will mark other proceedings to be
taken by the court in settling the estate. But since special
proceedings are governed by their own rules, and it says that
the appointment of an administrator/executor or admitting of
a will to probate are all final orders and hence appealable. In
fact if we go through the whole process of settlement
proceeding, although it is the policy of the RoC to terminate
proceedings speedily, with as much as practicable a period of 2
years from institution of the settlement proceedings, Rule 109
negates this state policy because of the Rule in 109 that all
final orders are appealable. In the course of reading special
proceedings, there are several final orders that can be issued
by the settlement court, and all these final orders can be
appealable. The settlement proceedings will not be terminated
until all these issues brought on appeal had been resolved by
the appellate court and the records returned to the
settlement court.
If the settlement court appoints Juan dela Cruz today as
administrator of the estate, an heir who dislikes him can
appeal from that order. And while that appeal is going on, Juan
dela Cruz cannot assume the position as administrator of the
estate until the higher court has ruled on the qualifications or
the validity of the order appointing him as administrator. In
the meantime, nobody will be taking care of the estate. The
remedy of Juan dela Cruz is to ask the court to appoint him as
a special administrator. So if his appointment as administrator
is challenged by another heir, he cannot assume the office as
a REGULAR administrator, but the settlement court can
appoint him as SPECIAL administrator. A settlement court has
the authority to appoint a special administrator if there is a
delay in the appointment of a regular administrator. This is
necessary because the estate has to be managed while the
appeal is ongoing.
Will it cause any prejudice to the heirs or creditors if
Juan dela Cruz is appointed as special administrator?
There will be no prejudice to anybody. This is because as
special administrator, Juan dela Cruz is not given all the
powers of a regular administrator. All that he can do is to
manage the properties of the estate, to preserve the estate.
He will not be able to entertain claims of creditors. That is the
sole prerogative of a regular administrator/executor of an
estate.
Can an oppositor also appeal from the order of the court
appointing Juan dela Cruz as special administrator?
We cannot. Under Rule 109, the appointment of a special
administrator is interlocutory, it is not appealable. The
remedy will be Rule 65, to challenge the appointment as
special administrator. But it will not give the oppositors any
undue advantage, since we have learned under Rule 65, the
assumption of Juan dela Cruz as special administrator will not
be prevented, unless the higher court issues a writ of
preliminary injunction or TRO. Without these injunctive writs,
Juan dela Cruz can start with the performance of the office of
a special administrator.
The great difference between a special administrator and a
regular administrator of an estate is that a regular
administrator is empowered to entertain claims of creditors to
be filed against the estate, while a special administrator
cannot. In fact, the statute of non-claims given in Rule 86 will
only come to life after the appointment of a regular
administrator/executor. We cannot talk about statute of non-
claims if the court has only appointed a special administrator.
Let us assume that there is already a regular
administrator/executor appointed by the settlement court.
Whether there is an executor or administrator, their duties
are the same. Both should submit to the court within a period
of 3 months a complete inventory of the properties of the
estate that have come to their possession or to their
knowledge, and then they will have to do an accounting within
a period of 1 year. They have to preserve and manage the
estate, and they will have to comply with the orders of the
settlement court.
The duties of administrator/executor outlined in the Rules are
practically the duties of any fiduciary given in the RoC, similar
any person who occupies a fiduciary position under the Rules
like a trustee of an express trust, the guardian of an
incompetent of a minor. They have all these common duties
like to preserve the estate, to submit an inventory, to submit
an accounting, and to obey the orders issued by the court.
STATUTE OF NON-CLAIMS
Rule 86 SEC. 5. Claims which must be filed
under the notice. If not filed, barred;
exceptions.—All claims for money against the
decedent, arising from contract, express or
implied, whether the same be due, not due, or
contingent, all claims for funeral expenses and
expenses for the last sickness of the decedent,
and judgment for money against the decedent,
must be filed within the time limited in the
notice; otherwise they are barred forever,
except that they may be set forth as
counterclaims in any action that the
executor or administrator may bring against
the claimants. Where an executor or
administrator commences an action, or
prosecutes an action already commenced by the
deceased in his lifetime, the debtor may set
forth by answer the claims he has against the
 decedent, instead of presenting them
independently to the court as herein provided,
and mutual claims may be set off against each
other in such action; and if final judgment is
rendered in favor of the defendant, the amount
so determined shall be considered the true
balance against the estate, as though the claim
had been presented directly before the court in
the administration proceedings. Claims not yet
due, or contingent, may be approved at their
present value.
Once the administrator/executor has assumed office, the
first thing that he should do under Rule 86 is to ask the court
to issue a Notice to Creditors. This will be published. This is a
notice to all the creditors of an estate to submit their claims
within a period of not less than 6 months nor more than 12
months from the first publication of the Notice to Creditors.
This period of not less than 6 months nor more than 12 months
within which creditors should file their claims is called the
Statute of Non-Claims. Rule 86 spells out the concept and the
consequences of the Statute of Non-Claims. It is a very short
prescriptive period.
The publication of the Notice to Creditors is jurisdictional
insofar as creditors are concerned, because this notice serves
as a prescriptive period.
So if there is a creditor of the estate, like PNB, from
whom the decedent borrowed 2M in a clean loan
(unsecured) during his life time. Can PNB file an ordinary
action for the recovery of indebtedness against the
estate of the estate on the theory that under the law,
when a natural person dies, the law creates an artificial
person, called the estate of the deceased, to take the
place of his person?
Although it is true that when a natural person dies, under the
NCC creates another person to take his place, an artificial
person called estate of the deceased. But the law does not
allow the artificial person to be a defendant in a suit for
recovery of money. What the law requires is for PNB to file a
claim within a period of not less than six months to 12 months
from the first publication of the Notice to Creditors.
So you will not find any ordinary civil action commenced by a
creditor against the estate of a deceased creditor. That simply
is not allowed by the Rules. But you can find a complaint,
ordinary civil action, where the action is Creditor vs. Estate of
Deceased Debtor, but the circumstances are different from
one another. When you meet a case captioned thusly, the
debtor must have died after the institution of that action. If
the debtor is already dead, the creditor will not be allowed an
ordinary civil action for the recovery of the indebtedness. The
only recourse of the creditor after the death of the debtor is
to file a claim in the settlement court within the period so
provided by law.
Why do we make a distinction as to whether the debtor is
dead before the commencement of the action or during
the pendency of an ordinary civil action for the collection
of money?
The answer is found in Rule 3 Section 16 and Section 20.
SEC. 16. Death of party; duty of counsel.—
Whenever a party to a pending action dies, and
the claim is not thereby extinguished, it shall be
the duty of his counsel to inform the court
within thirty (30) days after such death of the
fact thereof, and to give the name and address
of his legal representative or representatives.
Failure of counsel to comply with this duty shall
be a ground for disciplinary action.
The heirs of the deceased may be allowed to
be substituted for the deceased, without
requiring the appointment of an executor or
administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal
representative or representatives to appear and
be substituted within a period of thirty (30) days
from notice.
If no legal representative is named by the
counsel for the deceased party or if the one so
named shall fail to appear within the specified
period, the court may order the opposing party,
within a specified time, to procure the
appointment of an executor or administrator for
the estate of the deceased and the latter shall
immediately appear for and on behalf of the
deceased. The court charges in procuring such
appointment, if defrayed by the opposing party,
may be recovered as costs.
SEC. 20. Action on contractual money claims.
—When the action is for recovery of money
arising from contract, express or implied, and
the defendant dies before entry of final
judgment in the court in which the action was
pending at the time of such death, it shall not
be dismissed but shall instead be allowed to
continue until entry of final judgment. A
favorable judgment obtained by the plaintiff
therein shall be enforced in the manner
especially provided in these Rules for
prosecuting claims against the estate of a
deceased person.
In Rule 3, Section 20, if the debtor in a claim for money dies
during the pendency of the case, RoC provides that the case
will be prosecuted until final judgment. But what Rule 3
requires is that there will be substitution of parties, and if
there are no heirs willing to act as the defendant, it is
ultimately the administrator/executor who will be named as
the substitute defendant. This is the only instance where we
can have an ordinary civil action for the recovery of money
where the defendant is the estate of the deceased debtor
represented by the administrator/executor.
Remember the antecedent facts: The debtor died during the
pendency of the case. At the time the action was commenced,
the debtor was still alive. If the debtor is already dead, a
creditor cannot file an ordinary civil action for the recovery of
the indebtedness. The creditor must file a claim in the
settlement court within the Statute of Non-claims.
In the same facts of the problem involving PNB with an
unsecured 2M loan, we assume that PNB made a promissory
note, which was signed by the now deceased debtor. So, the
unsecured loan of 2M was put into writing. The obligation is
now reduced into writing. Under the NCC, if there is a money
claim supported by a written document, prescription period is
10 years. The creditor can enforce his claim within 10 years.
But suddenly, here is Rule 86 giving PNB a very short period
for which to enforce the claim.
Will it not defeat substantive law? Are we not reducing
the prescriptive period enjoyed by PNB from 10 years to
12 months? Can RoC defeat substantive law?
There is really a conflict in the RoC and NCC in this instance.
What the SC said is that the provisions of Rule 86 will prevail
over the NCC. We reduce the prescriptive period contained in
the NCC which is 4 years, 6 years or 10 years are shortened to
6 months to 12 months from first printing of the Notice to
Creditors. The justification given by the SC is that the statute
of non-claims as contained in the Rule 86 is not a product of
the SC. It is just a copy of the old civil procedure. At that
time, the old code of civil procedure was also a substantive law
insofar as prescription was concerned. SC went further by
saying, even under the NCC on the chapter of prescription, it
is provided that the NCC provisions will be without prejudice
to periods of prescription that are found in special or other
laws. In other words, the period of prescription given in the
NCC is the general law on prescription. If there are other laws
on prescription which contravene the NCC, then the NCC will
have to give way over the provisions of the other laws. Rule 86
is just an exact copy of the period of prescription that was
contained in the old code of civil procedure, which has not
been repealed by the provisions of the NCC. We still maintain
this statute of non-claims as a prescriptive period, not less
than six months nor more than 12 months from the date of
first publication of the Notice to Creditors.
If you read Rule 86 on the statute of non-claims, the
consequence is that the claim will be barred forever if it is not
submitted within this period to the settlement court.
But the RoC do not require all creditors to submit their claims
within this statute of non-claims. You have also to take into
account the provisions of Rule 87. If there are creditors but
their claims are not for money, and instead involve recovery
of real or personal property, they are not covered by the
statute of non-claims. Or if these creditors claim, although
for money, stem out of a tort committed by decedent during
this lifetime, they are not governed by the statute of non-
claims.
So we have to limit the concept of these claims to the
provisions of Rule 86. What are these money claims? “All
claims for money against the decedent, arising from
contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses
and expenses for the last sickness of the decedent, and
judgment for money against the decedent,” as provided
for in Section 5 of Rule 86. So that excludes claims arising
from a crime or delict or tort. These claims must be claimed
within the period of non-claims. Otherwise, they are barred
forever.
In our example, where the debtor dies during the pendency of
an action for the recovery of the loan, the
administrator/executor has taken his place as a substitute
defendant. If the administrator/executor subsequently loses
the case, the creditor will have an award in his favor for
payment of 2M. Even if that award is supported by a final and
executory judgment, the creditor should still file a claim
against the estate within 6 months and 12 months, in the
period for statute of non-claims. Otherwise, the claim will be
barred.
If you read Rule 86 on the statute of non-claims, claims for
money supported by a final judgment should still be submitted
as a claim before the settlement court. In short, the judgment
creditor cannot make use of Rule 39. He cannot move for the
issuance of a writ of execution. If a trial court issues a writ of
execution, that writ is void. We cannot issue a writ of
execution against an estate that is being settled in a
settlement court. It is the settlement court that has the
authority to determine who the creditors are and what claims
will be approved and paid in the settlement proceeding. And
that cannot be interfered with by any other court.
If you will notice, in the Rule on settlement of estates, there
is no instance by which a writ of execution can be enforced
against the estate of the deceased person. That is prohibited
under our system. Except the instance that is contemplated in
Rule 39, when there is already a writ of execution issued
against a defendant who is still alive, and there is a levy on
execution on the properties of this defendant, and thereafter,
the defendant died. The levy on execution can continue and
the properties can be sold at public auction. This is the only
known instance where there could be a writ of execution and a
levy on execution against the estate of the recently deceased
judgment debtor/defendant in Rule 39. The general rule is we
cannot enforce a judgment against a deceased judgment
debtor by using a writ of execution and levy on the properties
of his estate under Rule 39.
Although Rule 86 operate as a period of restriction, Rule 86
recognizes that certain creditors do not have to submit their
claims against the estate. And even if they do not submit
their claims, their claims will not be barred, they can still
enforce their claims. This involves creditors who hold a
security, a mortgage, a pledge or any other security
arrangement, contractual in character, that has been entered
into during the life the deceased debtor. So, a mortgagee, a
pledgee or any other creditor who holds a security is not
required to submit a claim against the estate. He does not
participate in the settlement proceeding, but he can still
enforce his claim. In fact, under Rule 86, the secured creditors
are given 3 options. The first is that they just abandon their
security. So if the creditor is a mortgagee at the same time,
and he uses the first option, he will convert himself from a
secured creditor to an unsecured creditor. He gives up the
mortgage, so he will be able to participate in the proceedings.
This does not seem to be very practical. Why should a secured
creditor convert himself into an unsecured creditor when
there is no certainty that he is going to be paid? But that is
the first option given to secured creditors.
The second option relies on the collateral. Foreclose the
mortgage. And if there is any deficiency, with respect to the
deficiency, submit a contingent claim within the statute of
non-claims. So in this second option, the mortgage is not
abandoned, but foreclosed instead, and the creditor is
required to file a contingent claim for any deficiency.
In the third option, the secured creditor will rely entirely on
his security. He can foreclose the mortgage. But if there is a
deficiency, he can no longer recover the deficiency against
the estate. He will have to be satisfied with what he received
in the foreclosure of the mortgaged property.
There could be some questions pertaining to this rule on
secured creditors in Rule 86. Remember that the
mortgagor/pledger is already dead. And if in the mortgage,
the mortgagee is given a special power of attorney to extra-
judicially foreclose the mortgage, the administrator/executor
or any one of the heirs can bring out this issue, if the
mortgagor is already dead, does it not follow that the SPA
given to the mortgagee to foreclose extra-judicially will be
extinguished. Because what the mortgagor gives to the
mortgagee is a SPA to extra-judicially foreclose a mortgage, a
contract within a contract. In essence, a contract of agency is
created, authorizing the mortgagee to extra-judicially
foreclose the security.
Supposing the administrator challenges the authority of
the mortgagee to extra-judicially foreclose the
mortgage, on the ground that under the NCC the death
of the principal extinguishes the agency. Is the
administrator correct?
No. The SC said we do not apply that principle in agency
through a case of secured credit and security consists of a
mortgage, pledge or any other form of contractual security
arrangement. And the SC said that the death of the
mortgagor will not extinguish the agency, since the agency
falls in the concept in the civil code called an agency coupled
with an interest. So if the mortgagor dies, the mortgagee still
retain the right to extra-judicially foreclose the security. So,
we do not take away the right of the mortgagee to extra-
judicially foreclose the security even if the mortgagor is
already dead. That is the reason why in Rule 86, the
mortgagee is given the 3 options: to abandon the mortgage,
foreclose the security and recover the deficiency by filing a
contingency claim within the statute on non-claims or rely
solely on the foreclosure of the security and forget about the
deficiency.
We said that a court will not accept even for filing an ordinary
complaint for the recovery of money arising from a contract if
the defendant was already dead, even if we implead as
defendant the estate of the deceased defendant. Even if the
court accepts it for filing, it will be subsequently dismissed
because the filing is not the proper filing for the
commencement of a complaint. How do we expect creditors to
file a claim? In our example, do we expect PNB to file an
action against the administrator/executor for the recovery of
the loan? So, in filing a claim for money, what do we expect
the creditors to submit if they are not expected to file an
ordinary claim in court?
A claim in settlement proceedings is just in the form of an
affidavit where the creditor asserts his claim and then gives
the circumstances surrounding the claim, and then he
presents already together with his affidavit proof of the
existence of his claims. So these claims are not commenced
with the filing of a complaint. Since these claims are
commenced by the filing of an affidavit, the SC ruled that
claimants for money do not require a certification for non-
forum shopping. Said certification is not required since an
affidavit can hardly be considered an initiatory pleading. Such
certification is required only in initiatory pleadings.
Supposing that the settlement court is an RTC. Therefore
we assume that the estate is sizable. A creditor files a
claim, submits his affidavit, saying that the decedent
owed him money by way of a loan but only the sum of
200k. Can the RTC as a settlement court entertain that
claim, although it is not within the jurisdictional amount
given to an RTC under BP 129?
Yes. The amount of the claim of the creditor will not
determine the jurisdiction of the settlement court. This is
only an incident of the exercise of the settlement court of its
authority to entertain the petition for the settlement of
estate. As long as the settlement court has jurisdiction
because of the GROSS VALUE OF THE ESTATE, the
settlement court will have the authority to resolve ALL
incidents that are brought before it in relation to the
liquidation of the estate of the deceased person.
Under the Rules also, if there are 10 claimants for money, and
they all have submitted their claims in the form of an
affidavit, the Rules expect the administrator/executor to
respond to the claims, so he can contest or accept the
genuineness or validity of the claims.
If the administrator/executor does not respond at all,
can the court declare the administrator/executor in
default?
No. Because, the claim is not in the form of a complaint, only
in the form of an affidavit. So there is no default if the
administrator/executor does not respond to the claim.
If the administrator/executor contests the claim, he is
expected to reduce his contest formally in writing, stating the
defenses that the administrator/executor wishes to set up
when that particular claim is filed. If the
administrator/executor admits the claim, he will simply state
that he is not contesting the claim. So it is very likely that the
administrator/executor will collude or conspire with a creditor
who has filed a claim by simply telling the court that he is
admitting the genuineness of a particular claim. There is
mechanism given in the Rules for this situation. If the
administrator/executor admits a claim for money, the heirs
can submit their opposition to the admission of the claim, in
which case, the claim will become a contested claim.
If there are contest given by the administrator/executor to
the 10 claims submitted by the creditors, then the court will
have to try these 10 claims, as if there is a full blown trial, to
be taken up in the settlement court. The court can easily
avoid conducting a hearing in cases of contested claims by
using another provision in the Rule 86, that is to appoint
commissioners in order to hear the claims of the creditors.
In Rule 109, the order for each and every claim is considered
as a final order. So if the court eventually denies all the 10
claims, and the creditors feel aggrieved, expect the creditors
to appeal to the CA or SC as the case may be. There will be 10
appeals emanating from the same proceedings. While these
appeals are going on, the settlement court will have to wait
until they are finally adjudicated. So that is why although the
policy of the state is to speedily dispose of settlement
proceedings, by providing in the Rules a clear period within
which a settlement proceedings should be terminated and
closed, it is Rule 109 that will necessarily cause a delay in the
closure of settlement proceedings, because of the number of
appeals that can be taken in each and every final order that
can be granted by the settlement court. Under the Rules, the
resolution of each money claim is a final order.
Let us assume that all claims had been resolved and
granted by the court, and the administrator/executor
does not appeal. The final order became final and
executory, it will now be entered. Can the creditors,
whose claims have been approved, file in the settlement
court a motion for execution under Rule 39?
No. The settlement court is not bound to issue or to order an
execution of its own final order, even if the final order is
favorable to a creditor with a claim for money.
Does the judgment creditor have any other recourse?
None. He cannot make use of Rule 39.
The only recourse, if we can call it a recourse, available to a
judgment creditor who has filed a claim for money is to wait
for the court to issue another order directing the
administrator/executor to pay all these claims. Until that
order is issued, the administrator/executor has no authority
to voluntarily pay off the claims of the judgment creditors,
although they have already been approved.
Insofar as creditors of an estate subject of settlement are
concerned, even if they have won their respective claims,
there is guarantee that they are going to be paid. It is also
possible that they will not be paid at all if the estate is
insolvent. There are more liabilities than assets, then the
settlement court will be forced to make use of the provisions
in the NCC on preference and concurrence of credits.
A creditor cannot tell himself that since his claims had been
approved by the court, all that he needs to do is to wait for
the full payment. There is no assurance that a creditor in a
settlement proceeding could even be paid. If he is going to be
paid, there is no assurance that he will get the full amount of
his claim, it could only be a part. This is when the court will
start to use the NCC provisions on preference and
concurrence of credits.
In preference and concurrence of credits, there are credits
that are more preferred than other credits. There is need to
pay these preferred creditors before the rest of the creditors
can be paid. And the Rules are very clear in saying that when
there are more assets that liabilities in the estate, the estate
being insolvent, the settlement court is duty-bound to
observe the preference and concurrence of credits.
So, always have in mind that judgment creditor in a
settlement proceeding cannot make use of Rule 39. No writ of
execution, no levy on execution. And, we cannot say with
certainty that a duly approved claim of a creditor will lead to
payment in full. There could be full payment, partial payment
or no payment at all, depending on the financial condition of
the estate that is being settled.
How about the heirs? Can these heirs enter into
possession of some of the properties under liquidation?
They may not. The purpose of a settlement proceeding is
primarily to protect the state and most of the creditors of the
deceased. Until the creditors of the decedent are fully
satisfied, the heirs cannot take over possession and control
any of any properties of the estate. The entity that has full
control of the estate of a deceased person is the settlement
court, probate court or intestate court as the case may be.
So how will the surviving spouse and minor children
survive?
There are some provisions in the Rules and the NCC that
during the pendency of the settlement proceedings, the
surviving spouse and the children will be entitled to allowances
determine by the court. And it is the duty of the
administrator to comply with the order of the court directing
him to give allowances to the surviving spouse and minor
children.
What the settlement court is prohibited from doing is to allow
the surviving spouse and the heirs to take over possession and
control over properties of the estate before the creditors are
fully paid or the estate has been exhausted for the payment
of these creditors.
Supposing that the statute of non-claims has already
expired, and the court has already resolved the validity
of these claims, but the administrator/executor reports
to the court that there are not much liquid assets of the
estate. Can the court authorize the
administrator/executor to pay creditors whose claims
had been approved through the mechanism known as
accion en pago (pay using properties belonging to the
estate)?
Generally, dacion en pago is not allowed in settlement cases. A
court will not allow or authorize an administrator/executor to
settle a monetary obligation with properties of the estate.
The procedure outlined in the Rules where assets are enough
to pay, but the assets are not in cash is for the
administrator/executor to ask the convert for authority to
convert the hard assets (properties) into liquid assets (cash)
by selling the properties of the estate.
The order of preference is to sell personal properties first.
Generally, this is the rule followed by the settlement courts.
If we are going to sell properties in order to generate cash to
pay off creditors, we sell first personal properties. And then,
if the proceeds are not enough still, the court can authorize
the sale, mortgage or encumbrance of real properties. So, the
Rules seem to allow only a sale of personal property, but not
mortgage or encumbrance of personal properties of the
estate. But the Rules are very clear that in the case of real
property, there could be a sale, mortgage or encumbrance, if
so directed by the court.
The authority of the administrator/executor to sell
properties, whether real or personal, does not stem from his
authority as an administrator/executor. He should get a
special order from the settlement court authorizing him to sell
particular pieces of properties. And it is the court that will
determine under what conditions under which the contract of
sale should be had, and if signed by the
administrator/executor.
Can the administrator/executor, after he has obtained
an authority to sell properties of the estate, sell these
properties in a private sale or public auction sale?
Yes to either, as long as the court authorizes the sale in either
a private or public sale of these properties. The settlement
court has almost complete discretion in determining the
cognizance for the disposition of the properties of the estate
for the purpose of generating money with which the
administrator/executor can pay the claims of creditors.
If the administrator/executor has already amassed
enough cash in order to pay off the creditors, can the
administrator/executor start paying or liquidating in full
the approved claims against the estate?
He cannot still. He needs another order from the court,
directing him, the administrator/executor, to pay creditors
whose claims had already been approved. So, the
administrator/executor should always be relying upon the
directive that will be issued from the settlement court.
If the administrator is directed to pay off already his creditors
because there are already enough funds, and the creditor
neglects to pay the creditors, can the creditors this time make
use of Rule 39, to file a motion for execution?
They still cannot. We do not use Rule 39 in settlement
proceedings. If the administrator/executor disregards the
order of the court directing him to pay his creditors, the
creditors can move to cite him in contempt of court, or the
court can even remove him as an administrator/executor and
appoint another.
If all the creditors have been paid, and there are enough
assets left for distribution to the surviving heirs,
legatees or devisees, if there is a will, the next problem
to be resolved by the court is determining who the heirs
are. We have learned that a settlement court is a court of
very limited jurisdiction. Does it possess authority to
determine who the heirs are?
Yes, that is part of the limited jurisdiction of a settlement
court.
So if the settlement court can determine who the heirs are,
the court is likewise authorized to determine the distributive
share of each of these heirs.
What the settlement court cannot do is to resolve contentious
issues concerning title to or possession of real property. In a
dispute between the estate and a 3rd person concerning the
property, the settlement court has no authority to resolve
that issue. It has to be resolved in an ordinary civil action. The
only recognized exception that is recognized by the SC,
although not contained in the Rules, is that if all the parties
agree to submit this matter/dispute concerning title or
possession of property to the settlement court for resolution.
If there is such an agreement, that will place these parties in
estoppel from challenging later on the resolution of the court.
The declaration by the settlement court as to who the hers
are is another final order that can be appealed to a higher
court. It is not an interlocutory order.
Even if the heirs have already been determined by the
court, the other problem now is how to divide the estate
and distribute the estate among the heirs. If they cannot
agree on the manner of division, can they file a special
civil action for partition?
They cannot if there is a pending settlement proceeding in
court. The partition of the estate, how they will divide the
property, is within the authority of the settlement court to
determine. So if they want the settlement court to have the
ultimate responsibility to divide the property, they can submit
that issue to the settlement court.
If they do not want the settlement court to settle that issue,
the compulsory heirs, the devisees and legatees can agree on
what is usually called in settlement proceedings as a project of
partition. A project of partition is usually agreed upon
voluntarily among the heirs. They sign it and then submit it to
the court for approval. Once approved by the court, the court
will issue another order directed to the administrator called an
order of distribution.
If the administrator/executor neglects to distribute, again the
remedy is not Rule 39, it is simply to cite the
administrator/executor in contempt or the court will ask him
to resign or be removed by the court from that office.
If all the creditors had been paid, and the heirs have
received their distributive shares according to the
project of partition, will the proceedings now be
terminated?
Before termination, there is a final stage before the court will
issue an order of closure, the order which will terminate the
proceeding. It is essential that the court should conduct a
hearing and approve the final accounting of the
administrator/executor. Under the Rules, an
administrator/executor is required to submit an accounting
once a year. If all these submissions have been approved in
the past, then there is no more need to repeat them during
final accounting. If you also again read Rule 109, each and
every approval by the settlement court of an accounting is a
final order. If there is a final accounting submitted and that is
approved by the court, it is a final order. If that is appealed,
the settlement court in the meantime will not issue an order
of closure. When there is already an order of closure, the
period to appeal therefrom has expired, then the order of
closure will be entered. That will mark the end of the
proceedings.
Supposing that after the order of closure has been entered
and the proceedings have been terminated, here comes an
heir who claims that he has been deprived of his distributive
share in the estate, and here comes a creditor who claims he
is a creditor for money but he was unaware that there was a
settlement proceeding.
Can the heir file his own petition for the settlement of
estate for the same decedent? Can the creditor also
commence his own petition for the settlement of the
estate?
No to both remedies. There should be only one settlement
court allowed, and it has already terminated the proceedings.
If there is only one settlement court allowed, but the
settlement proceedings have already been closed, what
remedy do the heir and creditor have, if there is any
remedy at all, that is if we want to life to the principle
that there should be only one settlement court?
The remedy of the heir is to look for reopening of the case. A
proceeding that has already been closed can be reopened by
the same settlement court. This is insofar as the heir is
concerned, if he can show that he has been unjustly deprived
of his estate.
But insofar as the creditor for money is concerned, he does
not have this privileged for asking for reopening, because his
claim for money must have been filed during the running of
the statute of claims. If he has failed to do so, following the
provisions of Rule 86, the creditor’s claim shall be barred
forever.
So, the person who can ask for reopening will be an heir, not a
creditor of the estate.
Remember that a final order in settlement proceedings is
considered a judgment in rem. It binds anybody who might
have an interest upon the estate. That is the rule we are
applying insofar as the creditor is concerned. The order of
closure will be binding upon the creditor, because the
prescriptive period given in the Rules has already lapsed. His
claim is barred forever.
But insofar as the heir is concerned, he can capitalize on a
provision in the Rules which says that aside from publication
of the notice of hearing of the probate of a will, or for the
filing of letters of administration, it also jurisdictional for that
settlement court to give personal notice to the heirs, legatees
or devisees mentioned in the will.
The notice, which is also jurisdictional together with the
publication, refers to a notice by registered mail that must be
strictly adhered to by the settlement court. Otherwise, if not
strictly adhered to insofar as the heir is concerned, he can
always contend that the court has not acquired jurisdiction
over his person. That could be used by this heir deprived of
his share in order to challenge the nature of the order of
closure as a judgment in rem.
The SC has not fixed any period at all within which a motion or
petition for the reopening should be filed. It seems that it is
not possible to fix a period within which a period for
reopening could be filed, because if we place a period of
prescription, the only remedy that will be left to the heir will
be to file his own petition for the settlement of the estate,
which is not allowed under these Rules. So, as of now, there is
really no fixed period within which a petition for the
reopening of the settlement proceedings could be filed.
 IN SUMMARY litigation;
SETTLEMENT b. Has such legal interest in the success
Q: What are the remedies of the aggrieved party in of either of the parties, or an interest
summary or extrajudicial settlement of the estate? against both; or
COMPEL THE Should be brought within 2 years after c. Is so situated as to be adversely
SETTLEMENT settlement and distribution of the affected by the distribution of property
OF ESTATE IN estate in the custody of the court or of an
COURTS GROUNDS: (Section 4, Rule 74) officer.
a. If there is undue deprivation of lawful
participation in the estate; Note: May be availed of after judgment
b. Existence of debts against the estate. but before its finality or appeal by the
aggrieved party.
PETITION FOR On grounds of fraud, accident, mistake,
ACTION FOR It must be availed of within 5 years from
RELIEF and excusable negligence within 60 days
RESCISSION the time the right of action accrues.
(SUMMARY after petitioner learns of the judgment,
(Art. 1149, NCC)
SETTLEMENT) final order or other proceeding to be set
Also applicable in judicial proceedings
aside, and not more than 6 months after
ACTION FOR GR: It is based on an implied or such judgment or final order was
RECONVEYANCE constructive trust which prescribes in 10 entered. (Rule 38.) Also applicable in
OF REAL years from the date of registration or judicial proceedings.
PROPERTY date of issuance of certificate of title or
ACTION TO On the ground of fraud which should be
from actual discovery of fraud if the
ANNUL A DEED filed within 4 years from the discovery
registration was made in bad faith.
OF EXTRA- of fraud.
XPN: If the plaintiff is in possession of
JUDICIAL
the property and did not pass to
SETTLEMENT
innocent purchaser for value and good
OR JUDGMENT
faith, action is imprescriptible.
IN SUMMARY
(Marquez v. CA, G.R. No. 125715, Dec.
SETTLEMENT
29, 1998) Also applicable in judicial
ORDINARY If the order of closure has already
proceedings.
ACTION BUT become final and executory, the heir
REOPENING BY Upon motion of a person who either:
NOT AGAINST must file an independent civil action of
INTERVENTION a. Has a legal interest in the matter in
THE BOND accion reinvindicatoria to recover his
 deprived share.
Note: It must be brought within 10
years from the time the right of action
accrues. [Art. 1144(c)]
Also applicable in judicial proceedings.
After the lapse of two years an ordinary
action may be instituted against the
distributees within the statute of
limitations but not against the bond.
Rule 91 ESCHEAT
The special proceeding after settlement is escheat. Although
escheat comes right after settlement, it does not mean to say
that escheat is an integral part of an estate settlement
proceeding. Escheat proceedings are independent of
settlement proceedings, although the nature of escheat
proceedings contemplated in the Rules is also one where a
person has died and there is no will, and then there are no
persons who claim to be entitled to the estate. But if you read
the last section of escheat, there is another proceeding
contemplated which could be different from escheat. We call
it a reversion proceeding.
Rule 91 SEC. 5. Other actions for escheat.—Until
otherwise provided by law, actions for reversion
or escheat of properties alienated in violation of
the Constitution or of any statute shall be
governed by this rule, except that the action
shall be instituted in the province where the land
lies in whole or in part.
The escheat contemplated in the Rules is one where a person
has died, left no will and there are no person who claim to be
entitled to the estate as heirs or any other capacity
whatsoever.
In an escheat proceedings under these antecedents, is that
the proceeding will be initiated by the Solicitor-General in his
capacity as the lawyer of the Republic. So, it is also an in rem
proceedings. Petition for the escheat of the properties of Juan
dela Cruz. This is also a proceeding in rem because there is no
party impleaded as defendant. It is not also adversarial,
theoretically. The publication requirement is much longer than
the publication requirement in settlement proceedings. If the
escheat court finds the petition sufficient in form and
substance, and the jurisdictional requirements have been met
by proof of publication, the escheat court will declare the
properties of the deceased person as escheated in the name
of the Republic of the Philippines. The provisions of the Rules
on how the properties will be distributed are mere reiterations
of the provisions found in the NCC. You will notice then that
there seems to be no protection at all extended by the Rule of
Escheat to creditors of the deceased, unlike that extended in
settlement proceedings where parties are notified and they
are required to submit their claims within a certain period of
time, or else their claims are barred. There is no such
procedure under escheat proceedings So if the escheat court
has issued an order escheating the properties in favor of the
state, the state will just distribute the properties in
accordance with the provisions of substantive law.

If it turns out that there are creditors of the deceased,
do these creditors have any remedy at all to enforce
their claims, although the estate of the deceased debtor
has not been settled in accordance with settlement
proceedings?
The escheat court in fact will give creditors a very long period
of 5 years within which to file their claim. Within that 5 years,
the escheat court will either approve or deny the claims, and
then order the payment of these claims.
Can the settlement court convert itself into an escheat
court if in the settlement proceedings, there are no
claimants to the estate under settlement there being
only creditors, but no heirs, devisees or legatees?
No. It cannot convert itself into an escheat court. In an
escheat proceeding where decedent had left no will, nor are
there any heirs or creditors, the proceeding should be
commenced by the solicitor-general via an independent
petition for escheat.
It is also incorrect to assume where escheat is applicable only
in situations where the owner is dead. Even if the owner is still
alive, there could be escheat proceedings under certain special
laws, particularly the Law on Unclaimed Balances Act. This law
covers bank deposits that have remained dormant for a period
of at least 10 years. If the depositors of these bank accounts
leave their accounts dormant for a period of 10 years, the
Republic of the Philippines will confiscate these dormant
accounts. So, it is not good to deposit in a bank and keep it
dormant. You should keep on depositing and withdrawing, as
the case may be, so that may prevent the Unclaimed Balances
Act from being implemented in your account.
This dormant bank accounts will also be the subject of escheat
proceedings. The Republic of the Philippines will file a petition
for the escheat of these dormant accounts. And once the
court has granted the petition, the deposits will be turned
over to the national treasury. These dormant accounts might
be in millions of pesos, because they have been dormant for
about 10 years, and it must have kept on earning interest.
Is this not unconstitutional?
SC said it is not unconstitutional. It is merely an exercise of
the Republic of the Philippines will of its police power. It is not
eminent domain since the state is confiscating money without
paying just compensation to the owners. If it were
expropriation or eminent domain, the Republic of the
Philippines will be forced to pay just compensation for these
dormant deposits.
REVERSION
With respect to the reversion, it is also a proceeding in rem
according to the SC. Although, there is a particular individual
who is impleaded for the recovery of properties that are ill-
gotten. The SC said these are also proceedings in rem. And
with respect to a reversion filed by the Sol-Gen involving real
properties, the SC recently ruled on the issue as to whether
proceeding for the recovery of a real property is cognizable by
an MTC or RTC, depending upon the assessed value of the
property based on the standards under BP 129, the SC said
that it is possible that a reversion proceeding involving titled
property will be cognizable by an MTC if the assessed value of
the property is within the jurisdiction of the MTC as embodied
in BP 129. But even if the assessed value of that property is
within the jurisdictional amount assigned to the MTC, the
MTC will have no jurisdiction if it will involve the setting aside
of a judgment or annulment of a judgment that has already
been rendered in the past by the court, more particularly if
that judgment has been a duly entered judgment. SC said
MTC will have no authority over that reversion proceeding
because the reversion will include another aspect, that is
annulment of judgment, over which an MTC does not have any
jurisdiction under BP 129.
Rule 102 HABEAS CORPUS, WRIT OF AMPARO, WRIT OF
HABEAS DATA
If you are asked whether a writ of habeas corpus issued
by a court will release a detainee from detention, that is
if upon issuance of the writ, will that result to the release
of the detainee from detention?
No. A writ of habeas corpus, even if issued by the court, does
not mean the detainee will be released from detention. What
the writ of habeas corpus provides is that the respondent will
be required to present to the court the detainee on a
particular day and period before the court. And after the
detainee had been presented on that particular day and
period, the respondent would have complied with the writ of
habeas corpus. So a petition for habeas corpus, once granted,
does not mean that the detainee will be released from
detention.
What will release the detainee from detention?
Under Section 15, Rule 102, if the writ is issued with a
complimentary order after hearing that will lead to the release
of the detainee from detention. The order in Section 15 is
called an order of discharge or an order of release . So, it is
not the writ of habeas corpus itself that will lead to the
release of the detainee.
Rule 102 SEC. 15. When prisoner discharged if
no appeal.—When the court or judge has
examined into the cause of caption and restraint
of the prisoner, and is satisfied that he is
unlawfully imprisoned or restrained, he shall
forthwith order his discharge from
confinement, but such discharge shall not be
effective until a copy of the order has been
served on the officer or person detaining the
prisoner. If the officer or person detaining the
prisoner does not desire to appeal, the prisoner
shall be forthwith released.
It is the order of discharge or release that will be issued by
the court after conducting a hearing, which could be a
summary hearing, after a return was submitted by the
respondent to the court. So that is a complementary order
issued by the habeas corpus court that will now authorize the
detainer to release the detainee.
With respect to jurisdiction, the provisions of the law creating
the Family Court, the Constitution as well as BP 129 have long
been the subject of discussions, because under the law
creating a Family Court, the court has exclusive original
jurisdiction over petitions for custody of children and habeas
corpus in relation to custody of children. The intention of the
law is quite clear by merely reading the substantive law
creating the Family Court. The family court has exclusive
original jurisdiction over petitions for habeas corpus in
relation to custody of a minor. And of course, in the
Constitution, the SC has also original jurisdiction over
petitions for habeas corpus, together with certiorari,
prohibition, mandamus, etc. And then, under BP 129, the CA is
likewise vested with original jurisdiction over the same
petitions. That includes habeas corpus. The RTC likewise has
original jurisdiction over petitions for habeas corpus.
So, there seems to be an inconsistency or conflict between
the Constitution, BP 129 and the law creating a Family Court
which assigned to a family court exclusive original jurisdiction
over petitions for habeas corpus in relation to custody of a
minor.
The SC has already settled this issue. The SC has already ruled
that notwithstanding the provisions of the Family Court Law
assigning exclusive original jurisdiction to a family court over
petitions for habeas corpus in relation to custody of a minor,
the SC, CA and the RTC still exercise jurisdiction over
petitions for habeas corpus.
From a procedural point of view, habeas corpus is limited to
only two instances. The first is when there is unlawful
detention, which deprives a person of his liberty. And the
second situation is when the lawful custody of the person is
withheld.
If there is a detainee who complains that his detention is
unlawful, he will file a petition for habeas corpus. Rule 102
provides that the petition can be filed by a person on behalf
of the detainee. Our problem in habeas corpus is that
jurisprudence is to the effect that when there is another
person who files a petition for habeas corpus on behalf of the
detained person, this has been construed very restrictively by
the SC. The SC has ruled several times in the past that a
stranger who files a petition for habeas corpus on behalf of a
detainee should show or demonstrate his personality or his
standing as to why he is interested in the release of the
detainee. So there must be a relationship between the
petitioner and the detainee, if the petition is not filed by the
detainee himself.
If the petition is sufficient in form and in substance, the
habeas corpus court can right away issue the writ of habeas
corpus. There is no need for the court to hear the side of the
respondent. So if we stop at these principles of habeas
corpus, it would seem that habeas corpus is a prerogative writ
of liberty, it is designed to favor of a detainee who claims that
he is being deprived of his liberty by means of an unlawful
detention.
Q: When is habeas corpus not applicable?
A:
1. When detained under a lawful cause.
2. In case of invasion or rebellion or when public safety
requires it, under Art. III, Sec. 15, 1987 Constitution.
 3. When in case of invasion or rebellion or when public
safety requires it, for a period not exceeding 60 days,
under Art. 7, Sec. 18, 1987 Constitution.
4. If the jurisdiction of the court to try the person
detained appears after the writ is allowed. (Sec. 4, Rule
102).
5. If the person is in custody of an officer under
process issued by a court or by virtue of a judgment or
order of a court of record which has jurisdiction to
issue the process, render the judgment, or make the
order. (Sec. 4, Rule 102).
6. If the person is charged or convicted of an offense in
the Philippines. (Sec. 4, Rule 102).
7. If the person is suffering imprisonment under lawful
judgment. (Sec. 4, Rule 102).
8. In case of three-day retention of a suspect for three
days without charge, pursuant to Sec. 18 of the Human
Security Act.
9. When person is serving final sentence imposed by
court.
10. For asserting or vindicating a denial of right to bail.
11. For correcting errors in appreciation of facts or of
law.
Note: Issuance of a writ of habeas corpus may not lie in order
to revive a settled issue of the validity of the writ of
preliminary injunction issued in an agrarian case allegedly on
the ground of the existence of a tenancy relationship between
the parties arising from their arrest for having assaulted
persons in authority. (Bernarte v. CA, G.R. No. 107741, Oct.
18, 1996).
Loss of the records of the case after petitioner, by his own
admission, was already convicted by the trial court of the
offense charged will bar the issuance of a writ of habeas
corpus. The loss must have occurred prior to the filing of the
information against him. (Feria v. CA, G.R. No. 122954, Feb. 15,
2000).
It has been noted that the ORDER contains a provision
enjoining the prosecution of the Accused in the Criminal Case.
That is error. If the Accused was illegally detained because he
was arrested without a preliminary examination, what should
have been done was to set aside the warrant of arrest and
order the discharge of the Accused, but without enjoining the
Municipal Judge from conducting a preliminary examination
and afterwards properly issuing a warrant of arrest. Habeas
Corpus proceedings are not meant to determine crim inal
responsibility. (Alimpoos v. CA, G.R. No. L-27331, July 30,
1981).
In case of an illegal arrest, the petition for a writ of habeas
corpus will still not prosper if the detention has become legal
by virtue of the filing before the trial court of the complaint
against him and by the issuance of an order denying bail.
(Velasco v. CA, G.R. No. 118644, July 7, 1995).
Habeas Corpus may be had to give retroactive effect to a
previous ruling of the Supreme Court favorable to the accused
when the accused has already served the full term for a crime
which the Court has declared non-existent. (Gumabon v.
Director of the Bureau of Prisons, G.R. No. L-30026, Jan. 30,
1971). However, it will not lie if the penalty of imprisonment
imposed by the court is longer than that allowed by law. Such
error of judgment may be corrected by appeal or by the
President. (Pomeroy v. Director of Prisons, G.R. No. L-14284,
Feb. 24, 1960).
The writ of habeas corpus cannot be issued in cases in which
the Bureau of Immigration has duly ordered the deportation
of undocumented aliens, specifically those found guilty of
illegally entering the Philippines with the use of tampered and
previously cancelled passports. (Tung Chin Hui v. Rodriguez,
G.R. No. 141938, April 2, 2001).
Q: May a wife secure a writ of habeas corpus to compel
her husband to live with her in the conjugal home?
A: No. Marital rights including coverture and living in conjugal
dwelling may not be enforced by the extra-ordinary writ of
habeas corpus. In case the husband refuses to see his wife for
private reasons, he is at liberty to do so without threat of any
penalty attached to the exercise of his right. That is a matter
beyond judicial authority and is best left to the man and
woman’s free choice. (Ilusorio v. Bildner, G.R. No. 139789,
May 12, 2000).
But if we reach the last sentence of Section 4, then the
problems will now come out. Because in the last sentence of
Section 4, it is provided that if a person has been convicted or
charged of a crime, he is under detention by a lawful process
issued by a court, there is no way that he can be released
from detention through a petition for habeas corpus.
Rule 102 SEC. 4. When writ not allowed or
discharge authorized.—If it appears that the
person alleged to be restrained of his liberty is in
the custody of an officer under process issued
by a court or judge or by virtue of a judgment or
order of a court of record, and that the court or
judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ
shall not be allowed; or if the jurisdiction appears
after the writ is allowed, the person shall not be
discharged by reason of any informality or
defect in the process, judgment, or order. Nor
shall anything in this rule be held to
authorize the discharge of a person charged
with or convicted of an offense in the
Philippines, or of a person suffering
imprisonment under lawful judgment.
And then, if we relate Section 4 to Section 13 of Rule 102, we
will meet very strict procedural requirements which the
Rule require the petitioner to comply with so that the court
will be convinced in order to issue a writ of habeas corpus or
an order of discharge. Section 13 apples when a return is
already submitted by the respondent.
Rule 102 SEC. 13. When the return evidence,
and when only a plea.— If it appears that the
prisoner is in custody under a warrant of
commitment in pursuance of law, the return
shall be considered prima facie evidence of
the cause of restraint; but if he is restrained
of his liberty by any alleged private
 authority, the return shall be considered only
as a plea of the facts therein set forth, and
the party claiming the custody must prove such
facts.
You will notice that in Rule 102 although the court can issue
the writ can be issued without hearing the other side as long
as the petition is sufficient in form and substance, there is
nothing in Rule 102 which fixes a date when a return should be
filed in the habeas corpus. So, we rely on the discretion of the
court as to when a return should be filed by the respondent.
So the court can require the respondent to file the return
after 15 days, 20 days or 30 days as the case may be.
If the respondent indeed files a return, Section 13 provides
that if the respondent is a public officer, and he admits that
he is detaining the petitioner, the detainee, but under some
process issued by the court, that return is prima facie
presumed to be correct. That means the detention is correct,
if that is the tenor of the return submitted by the
respondent. But if the detainer is not a public officer, a
private individual, when the return says that the detention by
the respondent private individual is lawful, it is not considered
as presumably correct. It will only be considered as a plea.
Why is this Rule very prejudicial to the detainee? Let us say
the respondent is the chief of the PNP, he is required to file a
return. He submits a verified return saying that they are
detaining petitioner based on court processes authorizing
detention by the PNP. Insofar as the habeas corpus court is
concerned, the detention is presumably lawful. So it is up to
the petitioner to contravene this disputable presumption of
regularity in the performance of service by the PNP. From a
purely evidentiary angle, that will make it hard for the
petitioner to disprove the disputable presumption created in
Section 13, that the detention is prima facie presumed to be
an orderly and lawful detention.
Why do we say this? Because if the respondent has in his
favor that the detention is prima facie proper, then, he does
not have to present any evidence at all about the lawfulness
of the detention. He enjoys a presumption created by law. It
is the burden of the petitioner to disprove that presumption,
to present the quantum of evidence necessary to dispute the
presumption of regularity given in the Rules and by
substantive law.
If the respondent enjoys this disputable presumption that the
detention is lawful, the quantum of evidence required in the
RoC to defeat a disputable presumption is of a much higher
level, that is the level of clear and convincing evidence. But
remember that habeas corpus is not a criminal case. It is a
special civil action akin to an ordinary civil action or even a
special civil action, and the quantum of evidence in ordinary or
special civil actions is just preponderance of evidence. But in
habeas corpus, because the respondent enjoys a disputable
presumption, that the detention is lawful and proper, it will
create a very big burden on the part of the petitioner to
present evidence that will reach the level of clear and
convincing evidence to disprove that disputable presumption.
That has always been the rule that was followed in habeas
corpus cases.
But if the one detaining is not a public officer, a private
individual, then we don’t apply this disputable presumption of
regularity. For instance, if a woman gives birth to an infant in
a clinic, and when she wants to leave the clinic, the clinic tells
the woman that she is allowed to leave, but the infant must be
left behind and will stay there until the woman has fully paid
the medical bills. That could be the subject of habeas corpus,
because the lawful custody of the mother is being unlawfully
withheld from her, as means of leverage against the woman to
enforce payment of hospital bills. And if there is a return
submitted by the owner of the clinic, it is up to him to prove
that the detention is lawful. The quantum will only be
preponderant evidence, which is the same quantum the
petitioner will also be required to submit to court.
In Section 4 also, if you notice, if there is already a conviction
by the court, and the convict is now in jail, a petition for
habeas corpus will not be proper in order to obtain his release.
But, there are several exceptions to this rule. Even if a person
is already convicted of an offense, and the conviction has
become final and executory, and he is now serving sentence,
he can still obtain his release through a petition for habeas
corpus if the situation is covered by the Rule on DNA evidence
(A.M. No. 06-11-5-SC). There is a section on the circular on
DNA evidence entitled post-conviction DNA testing.
(A.M. No. 06-11-5-SC)SEC. 10. Post-conviction
DNA Testing. Remedy if the Results Are
Favorable to
the Convict.—The convict or the prosecution
may file a petition for a writ of habeas
corpus in the court of origin if the results of
the post-conviction DNA testing are
favorable to the convict. In case the court,
after due hearing, finds the petition to be
meritorious, it shall reverse or modify the
judgment of conviction and order the release
of the convict, unless continued detention is
justified for a lawful cause.
A similar petition may be filed either in the Court
of Appeals or the Supreme
Court, or with any member of said courts, which
may conduct a hearing thereon or
remand the petition to the court of origin and
issue the appropriate orders.
If a person is convicted of a crime, he is now in jail because
the judgment has become final and executory. While in jail, he
can move for DNA examination. If the DNA examination
results are favorable to him, in the sense that the findings
create a doubt as to whether or not he is the one who
committed the crime, he can obtain his release through a
petition for habeas corpus. In other words, the judgment of
conviction that has become final and executory can be
overturned by a petition of habeas corpus. Remember that
the judgment is now final and executory, and if we use civil
law, there is now res judicata. But DNA Circular says that in a
post-conviction DNA testing authorized by the court, if the
finding creates a doubt as to whether the detainee’s stay in
jail is still proper, an RTC can entertain a petition of habeas
corpus and overturn a judgment of conviction that has
become final and executory.
There are other instances where a judgment of conviction
although final and executory can be defeated by a petition for
habeas corpus. In one case, there was a judgment of
conviction, serving his sentence. While the convict was
serving sentence, the Congress enacted a law which reduced
the penalty for the crime committed by the convict. Since the
convict has served the sentence as imposed by the new law,
he filed a petition for habeas corpus, saying that he has
already served the sentence, and therefore his stay in jail
constitutes deprivation of his liberty, a case of unlawful
detention. And the court issued the writ of habeas corpus and
ordered the release of the convict. (Robin Padilla case)
So simply because there is a final judgment of conviction, it
does not mean to say that petition for habeas corpus is no
longer available as what Section 4 intends to say as a message.
There are several instances still where a final judgment of
conviction can be overturned, and the convict will be released
from custody.
In habeas corpus also, when it comes to a return filed by
a respondent public officer, if the respondent tells in the
return that he has custody of the detainee a few months
ago, but the detainee has already been released by said
officer, with documentation showing that the detainee
has already been release, what is the effect of this
return upon the petition of habeas corpus?
The SC said that if the detainee has already been released,
and proven by preponderance of evidence, then the petition
for habeas corpus has become moot and academic and the
petition for habeas corpus is going to be dismissed.
Or, in other instances when a public officer submits a return
consisting of one sentence, stating that he does not have the
petitioner in his custody, that is a sufficient return according
to the SC.
In other words, when it comes to habeas corpus, if you look at
it solely from a procedural point of view, the aces are in the
hand of the respondent public officer. He can file a very
simple return that is effectively a general denial, if we are
going to apply the rules for ordinary civil actions. The
statement of denial of custody is a general denial as it does
not give the circumstances upon which he relies upon to
support that denial. That is allowed in habeas corpus. This
because, habeas corpus is not a civil action, and therefore, the
rules of ordinary civil procedure cannot be applied to a
petition for habeas corpus.
There are several procedural defects that a petition of habeas
corpus will have to waive if we rely solely on Rule 102. These
defects were pointed out a while ago. A general denial is
allowed. We cannot compel a respondent to give particulars in
support of that denial.
Another procedural defect is that a person, not a detainee,
who files a petition must show to the court why he is
interested in the release of the detainee. If he cannot show
any interest in the freedom of the detainee, he will be
considered as not having the standing to file the petition for
habeas corpus.

And then, when it comes to evidentiary rules, Section 13 will
always support the stand of the respondent public officer who
is detaining person. Every time that he asserts that the
detention was because of some process issued by a court, his
stand will be presumed, although disputable, to be correct.
Therefore, if the stand of the public respondent is the correct
stand, the habeas corpus court will consider the detention of
the detainee as one that is lawful and proper.
When it comes to appeal, we have a special rule when it comes
to habeas corpus. In spite of the different decisions of the SC
in the past as to the period of appeal in habeas corpus cases,
the SC finally resolved that the period to appeal in habeas
corpus cases is the one found in BP 129. The period of appeal
is 48 hours, not 15 days, not 30 days. And the SC relied solely
on provisions of BP 129. If you read the last chapter on general
provision of BP 129, there really is a 48 hour period in which to
perfect an appeal in habeas corpus cases.
Since there is a respondent in habeas corpus cases, do we
consider that as one in personam or is it one in rem?
This another settled matter. SC held that it is a proceeding in
rem, although there is a particular respondent impleaded in
the action.
If we analyze the effect of authorizing a petition for habeas
corpus in order to obtain the release of a person in jail or
already serving a sentence by virtue of a judgment of
conviction rendered by a competent court, like the rule on
post-conviction DNA testing, we will immediately appreciate
that habeas corpus is a means by which we can attack
collaterally a final and executory judgment. That is why, when
we are talking about Rule 47, annulment of judgments in civil
cases, we said that while annulment of judgment in Rule 47 is
not applicable to a criminal case, the remedy available in a
criminal case is more convenient, because the remedy
available in a criminal case to defeat a final and executory
judgment is simply a petition for habeas corpus.
Why is habeas corpus a collateral attack on a judgment?
Because the relief which the petitioner in habeas corpus seeks
is for the court to issue an order saying that the detention is
unlawful and there is deprivation of liberty. The habeas corpus
court will not determine directly whether or not the conviction
is proper or should be set aside, and that is why it is always a
collateral attack from a judgment.
If you compare habeas corpus to annulment of judgment, we
will readily conclude that annulment of judgment is really a
direct attack against the final and executory judgment
because the relief which the petitioner in Rule 47 seeks is to
declare the judgment null and void, it should be set aside
because of lack of jurisdiction over the subject matter or the
person, or based on extrinsic fraud. That is not what habeas
corpus does.
When the habeas corpus court releases a person on a finding
that his confinement or detention is unlawful. But in declaring
that his confinement is unlawful, the court will effectively say
that there really is something wrong with the judgment that
has been rendered by the court. But the habeas corpus court
does not say that the court did not have jurisdiction over the
subject matter or the person, or that there was fraud
committed during the pendency of the case.
A habeas corpus court, since it is trying a special proceeding,
will also be acting with a very limited jurisdiction. So if there
is a petition for habeas corpus, and there is an allegation that
the petitioner or detainee is being unlawfully detained, and
that he is being deprived of his liberty, the
detainee/petitioner cannot apply for the issuance of
preliminary mandatory injunction in order to compel the
immediate release of the detainee. This is because the court
will be acting in a limited jurisdiction in the sense that what
the court will do only is to determine whether or not there is
unlawful deprivation of liberty. That independent action will
no longer be a special proceeding; it will be an ordinary action
for the recovery of damages. This is to emphasize that a
habeas corpus court is acting like a settlement court, one
having a very limited jurisdiction.
Because of the procedural defects that we have always
encountered when it comes to a petition for habeas corpus,
the SC issued circulars on amparo and habeas data.
So one of the purposes of the circulars on amparo and habeas
data is to remedy the governing rules and the procedure we
usually apply to petitions for habeas corpus. And the concept
of amparo and even habeas data is of a much larger scope
than in habeas corpus. You will note that in the instances
given in Rule 102 in habeas corpus, it is intended to meet the
fact or the situation that there is an actual deprivation of
liberty, actual unlawful detention or there is an actual
unlawful withdrawal of custody.
But in amparo, it is not only limited to an actual violation of a
constitutional right to life, liberty and security. It also covers
a threat to violate a right, which is not possible in habeas
corpus. So if the petitioner simply alleges in habeas corpus
that the respondent has threatened him several times to
deprive him of his right to liberty by unlawfully detaining him,
that will not be a proper ground for habeas corpus. What
habeas corpus requires is an actual deprivation liberty because
of an actual detention. In amparo, what is also covered is a
threat of the right to life, liberty and security. And of course,
in the second part of the second paragraph of amparo,
extralegal killings and enforced disappearances are also
included in the writ of amparo.
SECTION 1. Petition. – The petition
for a writ of amparo is a remedy
available to any person whose
right to life, liberty and security
is violated or threatened with
violation by an unlawful act or
omission of a public official or
employee, or of a private individual
or entity.
The writ shall cover extralegal
killings and enforced
disappearances or threats
thereof.
As late as 2009, there was a criticism hurled at the circular on
amparo on the ground that although amparo appears to favor
the respondents because enforced disappearance and
extralegal killings are included, that there is no meaning given
to the term enforced disappearance in the circular for amparo.
That has been remedied. Congress enacted a law last year
giving a definition of enforced disappearance. And under that
law, enforced disappearance is now considered as a criminal
act, although there are predicate offenses enumerated in that
law. So, we now have a statute which considers enforced
disappearances as a crime.
“Extralegal killings” are killings committed
without due process of law, i.e. without legal
safeguards or judicial proceedings. As such,
these will include the illegal taking of life
regardless of the motive, summary and arbitrary
executions, “salvagings” even of suspected
criminals, and threats to take the life of persons
who are openly critical of erring government
officials and the like. On the other hand,
“enforced disappearances” are attended by the
following characteristics: an arrest, detention or
abduction of a person by a government official
or organized groups or private individuals acting
with the direct or indirect acquiescence of the
government; the refusal of the State to disclose
the fate or whereabouts of the person concerned
or a refusal to acknowledge the deprivation of
liberty which places such persons outside the
protection of law. (Annotation to the Writ of
Amparo)
Q: What are extralegal killings?
A: Killings committed without due process of law, legal
safeguards or judicial proceedings. (Secretary of National
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) These
include the illegal taking of life regardless of the motive,
summary and arbitrary executions, salvaging even of
suspected criminals, and threats to take the life of persons
who are openly critical of erring government officials and the
like.
Q: What are enforced disappearances?
A: An arrest, detention or abduction of a person by a
government official or organized groups or private individual
acting with the direct or indirect acquiescence of the
government; the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such
persons outside the protection of law. (Secretary of National
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)
You will also notice the improvements in the circulars on
amparo and habeas data practically rectifies the stringent
rules that we have always applied to habeas corpus. For
instance, compared to habeas corpus, in a petition for
amparo, there an express acknowledgement in the circular
that anybody can file a petition for a writ of amparo. An NGO
or any stranger can file a petition for a writ of amparo; unlike
in habeas corpus where although the Rules say that the
detainee or any person on this behalf can file, we do not have
that restrictive interpretation that the SC has made in habeas
corpus cases. So, a stranger can file a petition for a writ of
amparo, and he does not have the burden to show why a writ
of amparo should be issued, although the victim is not at all
related to him, he will have the proper standing in court
insofar as the filing of amparo is concerned.
You will notice that there is an order of preference.
Q: Who may file the petition?
A: Any aggrieved party may file the petition. It may also be
filed by any qualified person or entity in the following order:
1. Any member of the immediate family, namely: the spouse,
children and parents of the aggrieved party;
2. Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in the
preceding paragraph; or
3. Any concerned citizen, organization, association or
institution, if there is no known member of the immediate
family or relative of the aggrieved party.
NOTE: The filing of a petition by the aggrieved party
suspends the right of all other authorized parties to file
similar petitions. Likewise, the filing of the petition by an
authorized party on behalf of the aggrieved party suspends
the right of all others, observing the order established herein.
(Sec. 2).
With respect to the return in amparo, if we compare it to
habeas corpus, there is a very big improvement. In amparo
and even in habeas data, there is a very clear statement that a
general denial is not allowed. So if the respondent submits a
return containing a general denial, that will be disregarded by
the court and then the court may cite the respondent in
contempt of court; unlike in habeas corpus wherein a general
denial is allowed.
With respect to the evidentiary rules, what is the
quantum of evidence required in amparo?
You are familiar with the circular which says that although
amparo is being heard by a court, not by a quasi-judicial body,
the evidence required on both parties is merely substantial
evidence. And the respondent cannot capitalize on a
disputable presumption of regularity in the performance of
official duty.
So if the respondent is a public officer, which is an essential
element in a petition for amparo, even if the respondent will
say that he has in his custody or is detaining the petitioner,
and he submits documents showing that the detention is
supported by orders of another court or another body, he
cannot enjoy the presumption of regularity in the
performance of official duty. So, the amparo court will not
look at the detention as a proper and regular detention. It will
still look at the detention as more likely to be an unlawful
detention of the petitioner. And the petitioner in amparo
cases will only be required to reach the quantum of evidence
called substantial evidence, the quantum of evidence applied
only in quasi-judicial bodies. In court proceedings, the usual
quantum of evidence is usually proof beyond reasonable
doubt, preponderance of evidence or clear and convincing
evidence, which should normally be applied to a proceeding for
amparo. But the SC has lowered the quantum in amparo,
although the court is not a quasi-judicial body. The
respondent cannot set up the defense the theory should be
presumed to be proper and regular due to the disputable
presumption of regularity in the performance of official duty.
Last year, the court decided the case entitled Bambico vs.
Nieva (June 2012). The SC clearly spelled out the principle that
in a petition for amparo, there should be an allegation
essential to the succession for the prosecution of the petition
that the respondents or the defendants are agents of the
state; or even if the respondents are only private citizens,
there should be an allegation that these respondents have
been instructed or they have been used by government agents
in causing the enforced disappearance or violation of the
constitutional right of the petitioner. SC said if there is no
such allegation as to the participation of government agents,
the petition for amparo will fail. It will simply be a criminal act
that has been committed by private individuals. That is not a
part of the circular, that when the SC was given a chance to
explain the concept of amparo in relation to conventions
entered into among several states of which the Philippines is a
member, the SC emphasized this essential allegation: that
there should be a participation by the state or by agents of
the state in causing the enforced disappearance of the
petitioner.
Also from another procedural angle, in habeas corpus, a
habeas corpus court has the final say in fixing the submission
of a return. In amparo, there is a 72 hour period fixed in the
circular. And then, if you will notice in the circular on amparo,
there is a long deliberation of prohibited pleadings and
motions, similar to that in summary procedure, small claims
procedure, and even in habeas date. Whereas there are no
prohibited pleadings and motions in Rule 102 with respect to a
petition for habeas corpus.
Another important difference between habeas corpus and
amparo is the express acknowledgment by the court now of
the existence of provisional remedies. In habeas corpus, we
cannot apply for a provisional remedy. But in the circular for
amparo, there are 4 interim reliefs. They are effectively
provisional remedies that could accompany petition for a writ
of amparo. They are Protection Order, Inspection Order (IO),
Production Order and Witness Protection Order (WPO).
The IO and Production Order as interim reliefs in amparo are
available to both petitioner and respondent. But the
Protection Order and WPO` are both available only to the
petitioner. And in these Production Order and IO in amparo,
the amparo court should conduct a hearing before issuing
these orders. The amparo court cannot simply grant a motion
ex-parte for the issuance of these interim reliefs.
You will also notice a big difference in amparo and habeas
corpus. The appeal in amparo cases is always to the SC under
Rule 45. And the issues that could be raised, even if it is the
SC that will be hearing it, could be both issues of fact and
issues of law, although the mode of appeal is under Rule 45.
This is a departure from the usual principle that we apply
when we appeal under Rule 45. The general rule that we apply
in an appeal under Rule 45 to the SC is that we can only raise
questions of law. But when it comes to amparo cases that are
appealed to the SC under Rule 45, the appellant can raise both
questions of fact and questions of law.
You will also notice that in the circular on amparo, there is a
provision which says it can co-exist with other criminal, civil
or administrative proceedings that are filed with the
competent court or body. So there is nothing wrong if a
petition for a writ of amparo involving enforced disappearance
or extralegal killing filed in an amparo court, and there is a
criminal case is filed before an RTC concerning the enforced
disappearance. The two can stand together, but with several
qualifications.
Q: May a separate action be filed after filing a petition
for a writ of amparo?
A: Yes. It does not preclude the filing of separate criminal,
civil or administrative actions. (Sec. 21)
Q: What is the effect if a prior criminal action has been
filed?
A: No petition for a writ of amparo shall be filed. The reliefs
under the writ shall be available by motion in the criminal
case. (Sec. 22)
The procedure under this Rule shall govern the disposition of
the reliefs available under the writ of amparo.
If the criminal case is filed ahead of a petition for amparo, we
can no longer file a petition for writ of amparo as a special
proceeding, but we can ask for the issuance of a writ of
amparo through a motion in that pending case. So in that
sense, amparo now becomes a provisional remedy in that case
filed ahead of a petition for amparo.
Will it not cause prejudice to the movant if we require
the movant to ask for a writ of amparo in the pending
criminal case, given that in a criminal case, in order to
prove the guilt of the accused, the prosecution must
meet the quantum of evidence known as proof beyond
reasonable doubt? Do we not make it difficult for the
movant to convince the court to issue a writ of amparo
since we are filing a motion for a writ of amparo in a
court trying a criminal case?
That is solved by the provisions of the amparo circular. If
there is already an existing criminal case, the petitioner will
no longer be allowed to file a petition for amparo. Instead, he
will be required to file a motion for the criminal court to issue
a writ of amparo, insofar as the criminal court is concerned,
the criminal court will use the quantum of evidence in the
amparo circular, although it is trying a criminal case. In other
words, the criminal court will convict the accused through
proof beyond reasonable doubt, but to convince the court to
issue a writ of amparo concerning enforced disappearance and
extrajudicial killing, the quantum of evidence required of the
movant will be substantial evidence. So we find a situation
where there are two different degrees of proof that will be
used by the court in resolving these issues. The criminal case
will require proof beyond reasonable doubt, but the issuance
of a writ of amparo will require only substantial evidence.
But if the criminal case is filed later than the petition for a
writ of amparo, there will only be a consolidation of cases. The
petition for the writ of amparo will retain its existence as a
special proceeding but it will only be consolidated with the
criminal case.
With respect to habeas data, we practically follow the
procedure that is given in amparo, except that, this time in
habeas data, the circular does not authorize other persons to
file a petition for habeas data. Generally, it is only the
aggrieved party who can file properly a petition for habeas
data. It is only when the records are kept by a government
agency where the immediate family of the relatives of the
victim can file a petition for habeas data. A stranger or an
NGO are not authorized to file a petition for habeas date. And
it is easy to understand why we do not follow the order of
preference followed in amparo. Because in habeas data, it is
concerned with records that are supposed to be confidential.
They are supposed to be known only to the petitioner or to
the aggrieved party. So, he is the only one authorized to file
this petition for habeas data.
We follow the same procedure in amparo, there are prohibited
pleadings and motion. And habeas data can also be used as an
interim relief and as a provisional remedy when a criminal case
has been filed of the petition for habeas data.
PETITION FOR ADOPTION
Q: What is adoption?
A: It is a juridical act, a proceeding in rem, which creates
between two persons a relationship similar to that which
results from legitimate paternity and filiation.
Q: What is the State policy on adoption?
A: It is the policy of the State to ensure that every child
remains under the care of his or her parent/s and be provided
with love, care, understanding and security towards the
full and harmonious development of his personality.
Q: What is a Child Legally Available for Adoption?
A: A Child Legally Available for Adoption refers to a child in
whose favor a certification was issued by the DSWD that
he/she is legally available for adoption after the fact of
abandonment or neglect has been proven through the
submission of pertinent documents, or one who was
voluntarily committed by his/her parent(s) or legal guardian.
(Sec. 2(5), R.A. 9523).
Q: What is the requirement in order that the child may be
declared legally available for adoption?
A: There must be a certification which shall be issued by the
DSWD in lieu of a judicial order, thus making the entire
process administrative in nature. The certification shall be,
for all intents and purposes, the primary evidence that the
child is legally available in a domestic adoption and in an inter-
country adoption proceeding (Sec. 8, Ibid.).
Q: Can minor children be legally adopted without the
written consent of a natural parent on the ground that
the latter has abandoned them?
A: No. Adoption cannot be had without the written consent of
a natural parent who has allegedly abandoned them.
Abandonment cannot be merely presumed, it must be duly
proven. Moreover, there should be proof of emotional
abandonment. (Cang v. CA, GR No. 105308, Sept. 25, 1998).
Q: Is publication of the hearing for adoption necessary
for the adoption to be valid?
A: Indeed, publication of the scheduled hearing for the
petition for adoption is necessary for the validity of a decree
of adoption but not for the purpose merely of taking a
deposition. In taking a deposition, no substantial rights are
affected since depositions may or may not be presented or
may even be objected to when formally offered as evidence at
the trial of the main case later on. The philosophy behind
adoption statutes is to promote the welfare of the child and
every reasonable intendment should be sustained to promote
that objective. (Republic v. Elepano, G.R. No. 92542, Oct. 15,
1991).
Note: The necessary consequence of the failure to implead
the civil registrar as an indispensable party and to give notice
by publication of the petition for correction of entry was to
render the proceeding of the trial court, so far as the
correction of entry was concerned, null and void for lack of
jurisdiction both as to party and as to the subject matter.
(Republic v. CA, G.R. No. 103695, Mar. 15, 1996).
Q: What is the effect of adoption created under the law
of a foreign country?
A: It is entitled to registration in the corresponding civil
register of the Philippines. It is to be understood, however,
that the effects of such adoption shall be governed by laws of
the Philippines. (Marcaida v. Aglubat, G.R. No. L-24006, Nov.
25, 1967)
A petition for adoption could carry with it 2 other special
proceedings for change of name and correction of entries in
the records of the local civil registrar, or it can stand by itself
without the others. In one petition, we may have 3 special
proceedings. And these 3 special proceedings are governed by
different Rules.
Is this not a violation of the RoC? Does not civil procedure
prohibit joinder of causes of action when these causes of
action are governed by different Rules? Well, it does, that is
true. In Rule 2, that is one of the limitations to joinder of
causes of actions. A party may join as many causes of action
he may have, but he should see to it that these causes joined
are not governed by different procedures. If so, there will be
misjoinder of causes of action. The issues misjoined will be
dropped, and the party will be forced to file a separate
ordinary civil action.
Why then does the circular on adoption allow a petition
for adoption change of name and correction of entries
when they are governed by different procedures?
If you read the Domestic Adoption Act, Rule 103 on Change of
Name and Rule 108 on Cancellation Or Correction Of Entries In
The Civil Registry, you will immediately realize that the
procedures to be followed are really different from one
another. Their essentials are different, jurisdictional
requirements are different, but we allow joinder because
these are special proceedings, they are not ordinary civil
actions, and therefore, they cannot be governed by Rule 2 on
the prohibition concerning misjoinder of action.
In special proceedings, we do not apply generally the rules for
ordinary civil actions. They are governed by their own set of
rules. That is why we allow joinder of several special
proceedings, although they are governed by different rules.
In adoption, in the past, there was a 4th special proceeding
which SC allowed to be included in this petition. This was a
declaration of a minor to be considered as legally available for
adoption. The court in the same proceeding can declare that
the child is legally free for purposes of adoption. We do not
have that any more as a special proceeding. A court has no
authority to declare a minor to be legally free for purposes of
adoption. That is now the exclusive authority of the Secretary
of the DSWD. So if the Secretary of Social Welfare issues an
order declaring a minor as legally free for adoption, that
declaration will be binding upon all courts. That is the effect
of giving to the secretary the authority to declare a minor
legally free for purposes of adoption.
But if we look only adoption as a special proceeding, then
there are 2 laws governing adoption in the country. The first
is Inter-Country Adoption Law, and the Domestic Adoption
Act. The Domestic Adoption Act contains its own rules under
this law, and we do not necessarily follow anymore follow the
rules of adoption in the RoC. We should rely solely on what
the Domestic Adoption Act provides, although in most
instances, the provisions of the RoC would still be applicable
because the provisions of the Domestic Adoption Act are
reiterations of the procedures given in the RoC.
What makes it difficult for adopters or proposed adopters to
make use of adoption under the Domestic Adoption Act is the
requirement that the adopter must have resided in the
Philippines continuously for 3 years. That makes it extremely
difficult for any person wishing to adopt to make use of the
Domestic Adoption Act. And the law is very strict in saying
that the 3-year period must be continuous in character. There
are some breaks allowed, but there should be an order by the
adoption court. Because of this difficulty in making adoption
convenient to the adopter, we have the Inter-Country
Adoption Law, which is not judicial in character, purely
administrative in character. Although, we have this inter-
country adoption board (ICAB), this applies only to Filipinos
who are minors, unlike in Domestic Adoption Act, the adoptee
could be an alien or a Filipino. Under the ICAB, this is limited
to Filipinos who have not yet reached the age of majority.
Usually, they are the children declared by the Secretary of
Social Welfare to be legally free for purposes of adoption.
Although we call the proceeding as purely administrative, it is
not the ICAB that issues a decree of adoption, unlike in
domestic adoption where it is the family court that issues a
decree of adoption. The Inter-Country Adoption Act does not
authorize the board to issue a decree of adoption. The ICAB
will only be responsible for the matching for the adopter in
the foreign country and the adoptee who is in the Philippines.
In the process of this matching, it is the responsibility of the
ICAB to determine the qualifications of the adopter, his
financial capability, and also the possibility that the adopter
and adoptee may not like each other once they start living
together.
So who will eventually issue the decree of adoption under
the ICAB?
It is a foreign court. It is the court of the country where the
adopter resides.
The adopter will come to the Philippines only when he is going
to fetch the adoptee. So throughout the life of this
administrative proceeding, it is likely the adopter has not gone
to the Philippines at all. He is an alien residing abroad. He
manifests his intent to adopt a legally free Filipino minor. And
there is an agency that will get in touch with another agency
stationed in the Philippines, and these two agencies will be
getting in touch with one another as to the requirements and
as to the possibility of the adopter adopting the proposed
adoptee. So when the ICAB is finally convinced that the
adoption is for the benefit of the adoptee, the ICAB will
require the adopter to come to the Philippines to fetch the
adoptee. That is the only time when we require the adopter to
come to the Philippines, only for the purpose of fetching the
adoptee. So that after the two had left for abroad, the
adoptee will necessarily will be at the mercy of the adopter.
No one will be able to protect the adoptee once he is allowed
to leave the country. There are remedies concerning
repatriation if the relationship turns out to be sour, but that
will always be to the prejudice of the adoptee.
It is the foreign court where the adopter resides that will
issue the decree of adoption, because it is with that foreign
court where the formal petition for adoption was filed, not in
our family courts nor the ICAB.
Insofar as domestic adoption is concerned, there is also a
separate special proceeding, although related to adoption, it is
always separate from a petition of adoption itself, it is
rescission or revocation of adoption, also governed by the
Domestic Adoption Act. In this separate special proceeding for
revocation of adoption, or rescission of adoption, the
petitioner is the adoptee, and the relief he seeks for the
family court is for the family court to he seeks for the family
court is for the family court to revoke or rescind the decree
of adoption. If you will notice in the Domestic Adoption Act,
this remedy is exclusively available to the adoptee only. If the
adoptee and adopter cannot live together peacefully, the
adoptee is given this remedy to file an independent special for
the revocation or rescission of the adoption.
The venue is where the adoptee resides. But when it comes
to adoption, the venue is the place of residence of the
adopter. It is only the adoptee who can avail of the special
proceeding for the revocation or rescission of the adoption.
The adopter cannot avail of this remedy. So if it is the adopter
who is the victim of abusive conduct by the adoptee, the
adopter cannot go to court for the rescission or revocation of
the decree of adoption. But if it is the adoptee who is the
victim of abusive conduct by the adopter, he can avail of this
remedy.
Is it unfair to the adopter who could a victim of abusive
conduct by the adoptee?
It is not, according to the Domestic Adoption Law as the law
gives to the adopter a remedy. The remedy given is for the
adopter to disinherit the adoptee. That is the only recourse
given to the adopter given under the law if he is a victim of
abusive conduct from the adoptee.
Why the different treatment when it comes to the
availability of remedies by the adopter and the adoptee?
The reason is because these adoption laws are construed to be
in favor of the adoptee, of the minor.
If the adoptee is given this recourse while the adopter is
given remedy to disinherit adoptee, is it not easier for
the adopter to avail of the remedy because what the law
tells us is that what an adopter must do is very simple if
will just disinherit the adoptee?
If you will look at the provisions of the NCC concerning
disinheritance, you will notice that disinheritance must be
contained in a last will and testament. And if that must be
contained in a last will and testament, if the adopter dies, that
will must be submitted for probate, it must be
accepted/allowed by the court in a probate proceeding. There
must be proof that the will has complied with the formalities
contained in the NCC. If by chance the will of the adopter is
not admitted to probate, then that remedy of disinheriting
becomes ineffective, because if the will is not admitted to
probate, there will be no disinheritance, and the adoptee will
continue to be an heir of the adopter. Unlike a revocation or
rescission of a decree of adoption, in which the decree of
adoption will be set aside altogether, there will be no more
relationship between the adopter and adoptee.
RULE 108 CANCELLATION OR CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY
Q: What is the nature of proceedings in Rule 108?
A: It is summary if the entries in the civil register sought to
be corrected are clerical or innocuous in nature. However,
where such entries sought to be corrected or changed are
substantial, the proceedings are adversarial in nature.
(Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986)
Q: What is meant by appropriate adversarial proceeding?
A: One which has opposing parties; contested as distinguished
from an ex parte application, one of which the party seeking
relief has given legal warning to the other party, and afforded
the latter an opportunity to contest it. (Republic v. Valencia,
Ibid.)
Note: Rule 108, when all the procedural requirements
thereunder are followed, is the appropriate adversary
proceeding to effect substantial correction and changes in the
entries of civil register (Lee v. CA, G.R. No. L-118387, Oct. 11,
2001).
Q: What are the requisites of adversarial proceedings?
A:
1. Proper petition is filed where the Civil Registrar and all
parties interested are impleaded;
2. The order of hearing must be published once a week for
three consecutive weeks;
3. Notice must be given to the Civil Registrar and all parties
affected thereby;
4. The civil registrar and any person interested, may within 15
days from notice or from the last date of publication, files his
opposition thereto; and
5. Full blown trial. (Republic v. Valencia, supra.)

The last special proceeding which can be attached to a petition
for adoption is that in Rule 108, correction of entries in the
records of the local civil registrar. For purposes of the Bar, we
should be concerned principally with what entries in the
records of the local civil registrar could be changed
administratively or under Rule 108.
Can there be a change of citizenship?
In the records of civil registry in the certificate, can there be
a change of filiation from legitimate to illegitimate?
Can there be a change of sex or gender?
Can there be a change of name?
In the case of citizenship in the records in the local civil
registry, as entered in the birth certificate of a person, do not
forget the case of Republic vs. Valencia. That is the leading
case where the SC said that the entry in the citizenship from
Chinese to Filipino can be allowed. Although, it is substantial,
that is not a mere clerical error. It is not simply innocuous, we
are changing the citizenship from Chinese to a Filipino. SC said
that it can be done under Rule 108 as long as the court will
conduct a full-blown hearing, different than the hearing
contemplated in Rule 108, which is a summary hearing.
When it comes to change or correction of entry involving a
substantial change, it can be done, so long as a full-blown
hearing is done under Rule 108. There is a need for
respondents the chance to present its own evidence, to cross-
examine the witnesses of the petitioner and they are notified
of everything the court will do in the petition under Rule 108
with respect to citizenship.
With respect to filiation, in the certificate of birth, there is an
item for filiation, whether legitimate or illegitimate. There
was a petition for the correction of filiation of the children
born to a particular woman where the petitioner filed his
petition to correct the entry in that certificate of birth from
legitimate to illegitimate. The petitioner said that she is the
lawful spouse of the person mentioned as the father of the
children, but the children are not hers, but the children of the
mistress of her spouse. They cannot be considered as
legitimate children. They should be considered as illegitimate
children. So the issue to be resolved was that could it be done
under Rule 108 as the change that was going to be involved
was substantial. Changing filiation of the children from
legitimate to illegitimate will mean that the hereditary rights
of these children will be significantly reduced. As legitimate
children, they are entitled to so much of the estate, whereas
as illegitimate children, each will get ½ of what a legitimate
child would get. SC, applying the principle in Republic vs.
Valencia, also said that it could be done as long as the hearing
conducted is not a summary hearing. It is a full-blown hearing
where we notify the Solicitor-General or his representative,
we comply with all the requirements given in Rule 108
concerning publication, where the petition will be filed, to
implead the local civil registrar as a respondent in that
petition. The bottom line is it can be done as long as the
hearing conducted is a full-blown hearing. The process is
adversarial, according to SC.
With respect to gender, we have now a new law authorizing an
administrative change of gender from male to female or vice
versa, enacted last year.
It gives to the local civil registrar the authority to change the
gender of a person. But, the limitation in that law authorizing
the local civil registrar the authority to change the gender of a
person is by reason only of a clerical error or innocuous error.
Before this new law was enacted last year, the SC had already
established certain rules concerning sex change. The general
rule, according to SC is that we do not allow under Rule 108 a
change of sex if the sex change by reason of human
intervention. For instance, if a man decides to become a
female via a medical procedure, and after such operation, he
applies for change of entry of gender from male to female
(Republic vs. Silverio). SC held that is not allowed. If there is
human intervention, that will not be allowed under Rule 108.
That was the general rule until the SC was confronted by the
case of Cagandahan (a hermaphrodite). In the case of
Cagandahan, the SC allowed the change from male to female
because the SC cannot do anything about the problem really.
Even the doctor of the infant could not determine the gender
of the infant. SC called it intersexuality. If the person is
intersexual, and on the birth certificate the infant is made to
appear as female, but as years go by, upon reaching the
teenage years, the features suddenly changes from female to
male, there could be sex change, SC said, because of the
reason of absence of human intervention, by reason of the
constitution form birth of the child. So, we have no sex
change under Rule 108 based on the requirements given by the
SC in the Cagandahan case.
Now, here comes a new law, which authorizes a local civil
registrar, to allow administratively a correction of entry from
male to female, if the entry is proven really to be clerical or
innocuous as the case may be. Under that law, the local civil
registrar or the consul to a foreign country could also use this
prerogative, provided that they are presented with records
from the birth of this individual, which will convince him that
the entry made in the certificate of birth is wrong. In other
words, if the school records or baptismal records of the child
invariably indicates that the child is really a female, but then
the record shows that he is male, and then there is the
certification by a government doctor that there was no human
intervention that was made. According to this new law, the
local civil registrar has the authority to administratively
change the entry concerning the gender of a person.
This new law also enlarges the authority of a local civil
registrar to change entries. Under the old law, the local civil
registrar was authorized to only change administratively the
first name and the nickname. Now it includes therein the
gender, if it is purely clerical or innocuous error, date of birth,
month of birth, but not the year of birth.
Following the procedure in challenging this exercise of the
local civil registrar of his authority under the old law; and in
the new law, which is amendatory in character, it is also the
one followed in the old law. There could be an appeal to the
superior, the Civil Registrar General, there could be an appeal
to the Office of the President, and from there, there could be
a petition for review that could be filed in the CA under the
provisions of Rule 43. Under Rule 43, in the enumeration of
quasi-judicial bodies whose decisions may be brought to CA by
way of petition for review, the enumeration includes the
Office of the President.
So, from the local civil registrar, we can go up to the Civil
Registrar General, then appeal to the Office of the President
following the political law principle of exhaustion of
administrative remedies. So form the Office of the President,
we have nowhere else to go, so the only recourse now is to
make use of Rule 43, file a petition for review in the CA.
ENTRIES SUBJECT TO CANCELLATION OR CORRECTION
UNDER RULE 108, IN RELATION TO RA 9048
Q: What are the entries subject to cancellation or
correction under Rule 108?
A:
1. Births;
2. Marriages;
3. Deaths;
4. Legal separations;
5. Judgments of annulments of marriage;
6. Judgments declaring marriages void from the beginning;
7. Legitimations;
8. Adoptions;
9. Acknowledgments of natural children;
10. Naturalization;
11. Election, loss or recovery of citizenship;
12. Civil interdiction;
13. Judicial determination of filiation; and
14. Change of name. (Sec. 2)
15.Gender (in the case of an intersexual or clearly clerical
or innocuous error in the entry).
Q: May the trial court issue an order declaring the nullity
of marriage under Rule 108 and change the status from
married to single?
A: No, it is proper only in ordinary adversarial proceedings.
(Lim v. Republic, G.R. No. 8932, May 31, 1957)
Q: Within what period may a petition for correction or
cancellation of entries be filed?
A: The law did not fix a period within which the petition for
correction under Rule 108 in relation to Art. 412 of Civil Code
may be filed. Accordingly, such petition may be filed within 5
years from time the petitioner discovered the error or
mistake in the civil registry, and not from the date the birth
certificate was registered in the civil registry. (Lee v. CA,
supra.)
Q: Celine files a petition for cancellation of the birth
certificate of her daughter Jeanie on the ground of
falsified material entries therein made by Celine’s
husband as the informant. The RTC sets the case for
hearing and directs the publication of the order once a
week for 3 consecutive weeks in a newspaper of general
circulation. Summons was served on the Civil Registrar
but there was no appearance during the hearing. The RTC
granted the petition. Jeanie filed a petition for
annulment of judgment before the CA, saying that she
was not notified of the petition and hence, the decision
was issued in violation of due process. Celine opposed
saying that the publication of the court order was
sufficient compliance with due process. Rule.
A: The petition for annulment of judgment before the CA
should be granted. Jurisdiction of the court over a petition for
cancellation of a birth certificate requires reasonable notice to
all interested parties and also publication of the order once a
week for 3 consecutive weeks in a newspaper of general
circulation. In this case, publication of the order is insufficient
because Jeanie, a directly concerned party, was not given
reasonable notice, hence, denied due process. The lower
court, therefore, did not acquire jurisdiction. (Ceruila v.
Delantar, G.R. No. 140305, Dec. 9, 2005).
Alternative Answer:
It should not be granted. The publication of an order of
hearing under Section 4 of Rule 108 cured the failure to
implead an indispensable party. A petition for correction is an
action in rem, an action against a thing and not against a
person. The decision on the petition binds not only the parties
thereto but the whole world. An in rem proceeding is validated
essentially through publication. Publication is notice to the
whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of
any sort against the right sought to be established. It is the
publication of such notice that brings in the whole as a party
in the case and vests the court with jurisdiction to hear and
decide it (Republic v. Kho, G.R. No. 170340, June 29, 2007;
Alba v. CA, G.R. No. 164041, July 29, 2005; Barco v. CA, G.R.
No. 120587, Jan. 20, 2004). (2007 Bar Question)
Q: Helen is the daughter of Eliza, a Filipina, and Tony, a
Chinese, who is married to another woman living in China.
Her birth certificate indicates that Helen is the
legitimate child of Tony and Eliza and that she is a
Chinese citizen. Helen wants her birth certificate
corrected by changing her filiation from "legitimate" to
"illegitimate" and her citizenship from “Chinese" to
"Filipino" because her parents were not married. What
petition should Helen file and what procedural
requirements must be observed? Explain.
A: A petition has to be filed in a proceeding under Rule 108 of
the Rules of Court. A petition to change the record of birth by
changing the filiation from “legitimate” to “illegitimate” and
petitioner’s citizenship from “Chinese” to “Filipino” does not
involve a simple summary correction which could otherwise be
done under the authority of R.A. 9048. Procedural
requirements include: (a) filing a verified petition; (b) naming
as parties all persons who have or claim any interest which
would be affected; (c) issuance of an order fixing the time
and place of hearing; (d) giving reasonable notice to the
parties named in the petition; and (e) publication of the order
once a week for 3 consecutive weeks in a newspaper of
general circulation. (2005 Bar Question)
GUARDIANSHIP
Q: What is guardianship?
A: It is a trust relation in which one person acts for another
whom the law regards as incapable of managing his own
affairs.
Note: Guardianship of minors is now governed by the Rule on
Guardianship of Minors (AM No. 03-02-05-SC) which took
effect on May 1, 2003. While guardianship of incompetents
who are not minors is still governed by the provisions of the
Rules of Court on Guardianship. (Rule 92- 97)
Q: What is ancillary guardianship?
A: It refers to the guardianship in a state other than that in
which guardianship is originally granted.
Q: To what extent does guardianship extend?
A: Conflicts regarding ownership or title to the property in
the hands of the guardian in his capacity as such should be
litigated in a separate proceeding, the court in guardianship
proceeding is concerned solely with the ward’s care and
custody and proper administration of his propertie s (Villoria v.
Administrator of Veteran Affairs, L-9620, June 1957)
Q: What are the general powers and duties of guardians?
A:
1. To have the care and custody of the person of the ward,
and/or the management of his estate;
2. Pay the debts of the ward;
3. To settle accounts, collect debts, and appear in actions for
the ward;
4. Manage the estate of the ward frugally, and apply the
proceeds to the maintenance of the ward;
5. Render verified inventory within 3 months after his
appointment and annually thereafter, and upon application of
interested persons;
6. Render to court for its approval an accounting of the
property for 1 year from his appointment and as often
thereafter as may be required, and upon application of
interested persons
7. Consent to a partition of real or personal property owned by
ward jointly or in common with others. (Secs. 1-8, Rule 96;
Sec. 17, A.M. No. 03-02-05-SC)
Q: What is the order of liability of the ward’s property?
A:
1. Personal estate and income of real estate
2. Real estate
Q: What are the requisites to authorize the guardian to
join in the partition proceedings after hearing?
A:
1. Hearing
2. Notice to relatives of the ward; and
3. Careful investigation as to the necessity and propriety of
the proposed action (Section 5)
CONDITIONS OF THE BOND OF THE GUARDIAN
Q: What are the conditions of the bond of the guardian?
A:
1. To make and return to the court, within 3 months, a true
and complete inventory of all the estate of his ward which
shall come to his possession or knowledge or to the possession
or knowledge of any other person for him;
2. To faithfully execute the duties of his trust, manage and
dispose of the estate according to the rules for the best
interests of the ward, and to provide for the proper care,
custody, and education of the ward;
3. To render a true and just account of all the estate of the
ward in his hands, and of all proceeds or interest derived there
from, and of the management and disposition of the same, at
the time designated by the rules and such other times as the
court directs; and at the expiration of his trust, settle his
accounts with the court and deliver and pay over all the
estate, effects, and moneys remaining in his hands, or due
from him on such settlement, to the person lawfully entitled
thereto; and
4. To perform all orders required by the court (Sec. 1, Rule 94;
Sec.14, A.M. No. 03-02-05-SC).
Q: What is the purpose of the bond?
A: It is for the protection of the property of the minor or
incompetent to the end that he may be assured of an honest
administration of his funds (Herrera, Vol. III-A, p. 282, 2005
ed.)
Note: The bond of the guardian is a continuing one against
the obligors and their estates until all of its conditions are
fulfilled. The mere fact that defendant was removed as
guardian did not relieve her or her bondsmen from liability
during the time she was duly acting as such guardian.
(Guerrero v. Teran, G.R. No. L-4898, Mar. 19, 1909)
Q: Does the requirement of posting a bond extend to
parents who are the legal guardians of their minor
children? Explain.
A:
GR: No, if the market value or annual income of the child is P
50,000 or below.
XPN: If the market value of the property or the annual
income of the child exceeds P50,000, the parent concerned
shall furnish a bond in such amount as the court may
determine, but in no case less than 10% of the value of such
property or annual income, to guarantee the performance of
the obligations prescribed for general guardians (Sec. 16, A.M.
No. 03-02-05-SC).
Q: Who may petition for appointment of guardian for
resident?
A:
1. Any relative;
2. Other person on behalf of the minor;
3. Minor himself is 14 years of age; or
4. Secretary of Social Welfare and Development AND by the
Secretary of Health in case of insane minor who needs to be
hospitalized. (Section 2, AM-03-02-05-SC)
Q: Is court appointment necessary to enable the father
and the mother to exercise joint legal guardianship over
the person and property of minor?
A: No. The father and the mother shall jointly exercise legal
guardianship over the person and property of their minor
without the necessity of a court appointment. In such case,
this Rule shall be suppletory to the provisions of the Family
Code on Guardianship (Section 1, AM -03-02-05-SC)
Q: What would the court do if an issue arises as to who
has the better right or title to the properties conveyed in
the guardianship proceeding?
A:
GR: The issue should be threshed out in a separate ordinary
action as it is beyond the jurisdiction of the guardianship
court.
XPN: When the ward’s right or title to the property is clear
and undisputable, the guardianship court may issue an order
directing its delivery or return.
Q: What are the grounds for the appointment of a
guardian over the person or property, or both, of a
minor?
A:
1. Death, continued absence, or incapacity of his parents;
2. Suspension, deprivation or termination of parental
authority;
3. Remarriage of surviving parent, if the latter is found
unsuitable to exercise parental authority; or
4. When the best interests of the minor so require (Sec. 4,
A.M. No. 03-02-05-SC).
Q: What are the factors to be considered for the
appointment of guardian of minors?
A:
1. Moral character;
2. Physical, mental, and psychological condition;
3. Financial status;
4. Relationship of trust with the minor;
5. Availability to exercise the powers and duties of a guardian
for the full period of the guardianship;
6. Lack of conflict of interest with the minor; and
7. Ability to manage the property of the minor (Sec. 5, A.M.
No. 03-02-05-SC).
Note: The court shall order a social worker to conduct a case
study of the minor and all the prospective guardians and
submit his report and recommendation to the court for its
guidance before the scheduled hearing. (Sec.9, A.M. No. 03-
02-05-SC).
Q: Who may be appointed as guardian of a minor?
A: In default of parents or a court-appointed guardian, the
court may appoint a guardian of the person or property, or
both, of a minor, observing, as far as practicable, the
following order of preference:
1. Surviving grandparent and, in case several grandparents
survive, the court shall select any of them taking into account
all relevant considerations;
2. Oldest brother or sister of the minor over 21 years of age,
unless unfit or disqualified;
3. Actual custodian of the minor over 21 years of age, unless
unfit or disqualified;
4. Any other person, who in the sound discretion of the court
would serve the best interests of the minor (Sec. 6, A.M. No.
03-02-05-SC).
Q: What are the grounds for opposition to petition of For purposes of jurisdiction in guardianship proceedings, do
guardianship of minors? not be of the impression that guardianship proceedings are
A: always cognizable by the family court. If there is a
1. Majority of the alleged minor; or guardianship proceeding involving a minor, that is exclusively
cognizable by a Family Court. But when the guardianship is
2. Unsuitability of the person for whom letters are prayed for
over an incompetent who is not a minor, the competent court
(Sec. 10, A.M. No. 03-02-05-SC).
is an RTC. The competent court is either a family court or an
RTC, depending on who the ward is. If the ward is a minor, we
Q: How may a petition for guardianship of minors or
go to a family court. If the ward is an incompetent of major
incompetents be opposed?
age, then we go to the RTC.
A: Any interested person may contest the petition by filing a
written opposition and pray that the petition be denied, or
If you are asked to explain that this is the rule we follow,
that letters of guardianship issue to himself, or to any
why not just give everything to the family court? After
suitable person named in the opposition (Sec. 10, A.M. No.
all, that is the expertise of the family court, a
03-02-05-SC; Sec. 4, Rule 9).
guardianship action. Why do we leave to an RTC the
guardianship of an incompetent who is a minor?
The rest of the special proceedings like guardianship for
That fault is traceable to the Congress in enacting the law
instance, the guardian has the same duties as that of an
creating the Family Court. In that law, the family court was
administrator/executor because both are fiduciaries. The
given exclusive original jurisdiction over petitions for
main difference between a guardian and
guardianship involving a minor. The Congress failed to notice
administrator/executor is that a guardian has the authority
that there could also be guardianship involving a non-minor,
by himself alone to pay the indebtedness of his ward. The
that is if the ward is an incompetent. So, the SC applied
administrator/executor does not have that authority. In
literally this rule of exclusive original jurisdiction given to a
settlement proceedings, we speak about statute of non-
Family Court. It has authority only when the guardianship
claims. There is no statute of non-claims in guardianship.
involves a minor. But when the guardianship is over an
incompetent who is not a minor, it still an RTC that has
The substantive law gives to the guardian the authority jurisdiction under the provisions of BP 129.
whether or not the claim against the ward is valid and
therefore should be paid by him. He does not need express
When it comes to termination of guardianship. When the
authority from the court to be able to pay a valid
guardianship is via the family court by reason of minority, and
indebtedness incurred by the ward.
the minor reaches the age of majority, there is no need for
the family court to issue an order directing that the
guardianship has ended. The guardianship automatically ends
if the minor reaches the age of majority. By operation of law,
he is no longer a minor.

But when the guardianship is by reason of incompetency,

there is a need for RTC to issue an order saying that the
incompetency has ended, and there must be a hearing
conducted by the court. There must be a finding by the court
that the incompetent person is now competent and therefore,
the guardianship should be terminated.