JARA NOTES

REMEDIAL LAW

INTRODUCTION

Procedure always begins with substantive law. It is impossible to talk about procedure
without touching on substantive law.

The important substantive law in relation to procedure is the Constitution, the Judiciary
Reorganization Act of 1980, the Judiciary Reorganization Act of 1948, and their amendatory
laws. These substantive laws provide for the jurisdiction of the courts these are the laws that
created the courts, which resolve actual controversies between litigants.

We have an integrated judicial system, with the Supreme Court being the only
constitutional court. Take note that the Sandiganbayan is only a constitutional mandated court.

JURISDICTION

Jurisdiction - is the power and authority of the court to hear, try and decide a case, but also
the power to enforce its determination, as the judgment or decree is the end for which
jurisdiction is exercised, and it is only through the judgment and its execution that the power of
the court is made efficacious and its jurisdiction complete

The Constitution, BP 129 AND THE Judiciary Act of 1984

The jurisdiction of the Supreme Court given in the Constitution and not in BP 129. But
the Judiciary Act of 1948 also speaks of the Jurisdiction of the Supreme Court. The question
arises, didnt BP 129 repeal the Judiciary Act of 1948? The answer is NO. the repealing clause of
BP 129 only repealed the provisions of the Judiciary Act of 1948 which are inconsistency with
the provisions of BP 129. It is not possible for BP 129 and the Judiciary Act of 1948 to conflict
because BP 129 speaks nothing about jurisdiction of the Supreme Court. Besides, in BP 129 Sec.
9 there is a qualifying phrase there which provide that the Court of Appeals possesses appellate
jurisdiction over cases allocated in BP 129, except those falling within the appellate
jurisdiction of the Supreme Court in accordance with the Constitution, 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.

Notice that in the Constitution and in the 1948 Judiciary Act and the Judiciary
Reorganization Act of 1980, jurisdiction is classified as original and appellate. BP 129 however,
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does not use the term concurrent this is one of the purpose why BP 129 was created , to do
away concurrent jurisdiction. But although this was the purpose, we cannot really do away with
concurrence, and by implication, it still applies.

An example is, under the Constitution, the Supreme Court exercise original jurisdiction
over public ministers and consuls. BP 129 GRANTS the same to the Regional Trial Court, Since
the Constitution does not use the word exclusive, and BP 129 also does not use the term
exclusive, hence both courts exercise concurrent jurisdiction.

Another example is, the vesting of the Constitution unto the Supreme Court of original
jurisdiction over certiorari, prohibition, mandamus, quo warranto and habeas corpus cases. BP
129 grants to the Court of Appeals original jurisdiction over the same cases whether or not in
aid of its appellate jurisdiction. Hence, reading the Constitution and BP 129, three courts have
original jurisdiction over certiorari, prohibition, mandamus, quo warranto and habeas corpus
cases, the Supreme Court, Court of Appeals and the Regional Trial Court. This simply means
coordination and congruence in these courts when it comes to these cases. The conclusion
therefore is, the three courts exercise original and concurrent over the above mentioned cases
although BP 129 does not mention the term concurrent.

The petitioner in any if these cases is given three choices, he may go directly to either
the Supreme Court the Court of Appeals or the Regional Trial Court, Should this be the
interpretation in light of BP 129? Under rule 65, Sec. 4 the petitioner is not given much choice
because the Supreme Court has included this rule of Hierarchy of Courts.

The petitioner should first file the petition with the Regional Trial Court or the Court of
Appeals. In other words, the Supreme Court does not want to be overwhelmed with certiorari,
prohibition, mandamus, quo warranto and habeas corpus cases although it has original
jurisdiction.

CA: WHETHER OR NOT in aid of its appellate jurisdiction

Also under BP 129 as to the original jurisdiction of the Court of Appeals over certiorari,
prohibition, mandamus, whether or not in aid of its appellate jurisdiction, the qualifying
phrase whether or not in aid of its appellate jurisdiction is NOT found in the constitution.
Similarly under BP 129, this phrase is NOT found in the original jurisdiction of the Regional Trial
Court over the same cases.

So why is there such a qualifying phrase? Take note of the Judiciary Act of 1948, where
the Court of Appeals was also given original jurisdiction to try certiorari, prohibition and
mandamus but only in aid of its appellate jurisdiction. When BP 129 was enacted, it desired to
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give the Court of Appeals original jurisdiction whether or not it is in exercise of its appellate
jurisdiction, hence the change.

Does the law still use the qualifying phrase in aid of its appellate jurisdiction in
allocating the power to try certiorari, prohibition, and mandamus? The answer is YES. When it
comes to the Sandiganbayan which tries certiorari, prohibition and mandamus cases, but only
in aid of its appellate jurisdiction.

The appellate jurisdiction of the Supreme Court

The judiciary Act of 1948 when it comes to the appellate jurisdiction of the Supreme
Court, there seems to be an inconsistency between the constitutional provisions on this matter,
and that contained in the Judiciary Act of 1948. The Constitution says, that the Supreme Court
shall have the power to review, revise, modify or affirm on appeal or on certiorari as the law or
the Rules of Court may provide, cases involving . : then there is an enumeration of five
instances, such as the constitutionality or validity of a treaty, law, executive order; where
jurisdiction of an inferior court is in controversy and so on. In the Judiciary Act of 1948, it is
expressly provided that the appellate jurisdiction over these cases is exclusive.

In other words, while the Constitution gives the Supreme Court appellate jurisdiction
over these cases, the Constitution does not tell us whether the appellate jurisdiction is
exclusive. Unlike the Judiciary Act of 1948. It seems that the appellate jurisdiction of the
Supreme Court over the cases mentioned in the Constitution, that is the power to review,
revise, modify, or affirm on appeal in cases mentioned in the Constitution in NO LONGER
EXLUSIVE. It is plainly the appellate jurisdiction of the Supreme Court. It means to say, there is
nothing wrong, if the Court of Appeals, for instance, decides to take cases brought to it on
appeal. After all, the decisions of the Court of Appeals can still be reviewed by the Supreme
Court through a petition for review on certiorari under Rule 45.

CA: Original and Exclusive jurisdiction; annulment of judgment of RTC

In the enumeration of cases cognizable by the Court of Appeals, BP 129 makes use of
the descriptive words original and exclusive when it comes to the authority of the court of
appeals to annul judgment of the Regional Trial Court. So BP 129 says that the Court of Appeals
exercises original and exclusive jurisdiction to annul judgment rendered by the Regional Trial
Court. When the law says original and exclusive, well, the message is simple. It is only the Court
of Appeals that can try and decide at the first instance a case involving the annulment of a
decision rendered by the Regional Trial Court.
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 In other words, a petition to annul a judgment rendered by a Regional Trial Court and
filed before the Supreme Court will not be entertained by the Supreme Court. The Supreme
Court does not have jurisdiction to entertain at first instance a petition to annul judgment of
the Regional Trial Court. It is only the Court of Appeals which is vested with authority to annul a
judgment by the Regional Trial Court.

Since the Court of appeals can annul a judgment rendered by the Regional Trial Court,
then does it follow that the Court of Appeals can also annul the judgment rendered by the
Metropolitan Trial Court? The answer is NO. The annotation of jurisdiction when it comes to
annulment of judgment rendered by trial courts in BP 129 to the Court of Appeals is limited to
judgment rendered by the Regional Trial Court. It does not extend to annulment of judgments
rendered by an inferior court, by the Metropolitan Trial Court.

Now for purposes of annulment of judgment, all you have to do is to turn your Rules of
Court to Rule 47.

RTC: Annulment of judgment of MTC

Does it mean to say that a decision of an inferior court, the Metropolitan Trial Court, is
immune for annulment because BP 129 speaks only about the Court of Appeals, annulling
judgment of the Regional Trial Court. Well, if you read Rule 47, the answer is NO. In the last
section of Rule 47, it is provided that annulment of judgment rendered by an inferior court ,
Metropolitan Trial Court, is cognizable by the Regional Trial Court.

Where did the Supreme Court get the idea that a judgment rendered by an inferior
court would also be the subject of a petition to annul the judgment and confer it upon a
Regional Trial Court? If you read BP 129, there is nothing mentioned in BP 129 about the
annulment of judgment rendered by an inferior court, BP 129 speaks only about annulment of a
judgment rendered by the Regional Trial Court. So it would be logical, and others will agree,
that since BP 129 speaks only about annulment of a judgment of the Regional Trial Court, there
is no such thing as annulment of judgment rendered by an inferior court.

But again, here comes Rule 47, the last section, which tells us that there could be a
petition for the annulment of a judgment rendered by an inferior court. What is the justification
for including this section in Rule 47? Considering that jurisdiction is substantive law, is not a
matter of procedure, over which the Supreme Court has authority, then the justification is that
BP 129 the Regional Trial Court is a court of General Jurisdiction. And the court of general

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jurisdiction, the Regional Trial Court can try and decide all kinds of cases and controversies,
which are not allocated especially to other courts.

RTC: Court of General Jurisdiction

What is now the justification in saying that a Regional Trial Court, is a court of General
Jurisdiction? Does BP 129 say so? the answer is NO. BP 129 does not tell us expressly that the
Regional Trial Court is a court of general jurisdiction. Although BP 129 does not tell us expressly
that the Regional Trial Court is a court of general jurisdiction, in allocating to the Regional Trial
Court jurisdiction over various cases, in BP 129 there is a mention that the Regional Trial Courts
shall have exclusive original jurisdiction over all types of cases, over all issues which are not
especially allocated to other courts. That is the justification for considering that the Regional
Trial Court is a court of general jurisdiction.

Section 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original
jurisdiction:

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or
body exercising jurisdiction or any court, tribunal, person or body exercising judicial or
quasi-judicial functions;

In this context, the Supreme Court cannot be considered as a court of a general

jurisdiction. The supreme court is a court of limited jurisdiction. If we are going to follow also BP
129, the Court of Appeals is a court of limited jurisdiction. Municipal Trial Courts, Metropolitan
Trial Courts are also courts of limited jurisdiction. It is only Regional Trial Court that is
considered as a court of general jurisdiction under BP 129, because of the vesting of allocation
of authority unto Regional Trial Court, over all kinds of cases that have not been especially
allocated to other courts. We do not find a similar vesting upon the Supreme Court, the Court
of Appeals or inferior courts.

JURISDICTION: Substantive or Procedural?

We must also consider in relation to jurisdiction, that it is axiomatic in procedure that

jurisdiction is a matter of substantive law. We have come across this axiom several times that
jurisdiction is a matter of substantive law. That is not a very accurate statement of the principle
of jurisdiction.

It is jurisdiction over the subject matter, or the nature of action, that is the matter of
substantive law. But when it come to the jurisdiction over the person of the parties, the
jurisdiction over the person of the plaintiff, jurisdiction over the person of the defendant,
jurisdiction over the res, or jurisdiction over the issues, these aspects of jurisdiction are no
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longer substantive in character. They are pure procedural. So what is covered only by
substantive law, when it come to jurisdiction is jurisdiction over the subject matter, or the
nature of the case. The other aspects of jurisdiction over the person of the litigants, jurisdiction
over the issues, jurisdiction over the res or the thing involved, is a matter of procedure. That is
why we find in the Rules of Court provisions concerning service of summons, for service of
summons affects jurisdiction of a court over the person of the defendant. That is no longer the
turf of substantive law. BP 129 allocates jurisdiction unto various courts enumerated in the law,
and this refers to jurisdiction over subject matter of the litigation, or over the nature of the
case.

MTC: No appellate Jurisdiction

While the Courts of Appeals and the Supreme Court exercise appellate jurisdiction the
same is true with the Regional Trial Court. The Regional Trial Courts also exercise original and
appellate jurisdiction. In our judicial system there is only one court which exercise plainly
original jurisdiction. It is not given appellate jurisdiction. That is the Municipal Trial Court or
Metropolitan Trial Court.

It is hard to understand why a Metropolitan Trial Court cannot be conferred appellate

jurisdiction just like the Regional Trial Court or the Court of Appeals or the Supreme Court. Its
because there is no court lower than the Metropolitan Trial Court so it cannot be allocated
appellate jurisdiction power to review decisions rendered by other courts.

Appellate jurisdiction of the SC compared to the CA

When it comes to appellate jurisdiction, you will notice that the appellate court jurisdiction of
the Court of Appeals is much broader than the appellate jurisdiction of the Supreme Court.
Generally, when you are faced with a problem on appeal, your first instinct should always be
that the proper appellate court is the Court of Appeals. If you go through BP 129 or the
Constitution, the Supreme Court exercises appellate jurisdiction over various instances. In fact,
when a decision is rendered by a quasi judicial body, chances are the decision of this quasi
judicial body or agency is reviewable not by the Supreme Court but the Court of Appeals, as a
general rule. So your first instinct whenever it comes to a question of appellate jurisdiction is
that, the Court of Appeals exercises appellate jurisdiction. For this matter, you have to read Sec.
9 of BP 129, which tells us the scope of the appellate jurisdiction of the Court of Appeals,
compared to the appellate jurisdiction of the Supreme Court.

RTC: Purely original jurisdiction: original and exclusive jurisdiction

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 Now we go the Regional Trial Court. The original jurisdiction of a Regional Trial Court is
divided by BP 129 into two parts. PURELY ORIGINAL jurisdiction, and then ORIGINAL and
EXCLUSIVE jurisdiction. So the jurisdiction of the Regional Trial Court when it comes to purely
original jurisdiction is limited to cases of certiorari, prohibition, mandamus, quo warranto,
habeas corpus, and its original jurisdiction over cases involving ambassadors, public ministers
and consuls. It is in the exercise of original and exclusive jurisdiction where BP 129 enumerates
several instances cognizable by the Regional Trial Court.

RTC: Cases which are not capable of pecuniary estimation

The first civil action cognizable by the Regional Trial Court exercising exclusive original
jurisdiction covers cases which are not capable of pecuniary estimation. BP 129 does not give us
the standard or yardstick in ascertaining whether or not a civil action is capable of pecuniary
estimation. So we have to depend on jurisprudence on cases decided by the Supreme Court,
where the standard, if we are going to summarize the cases decided by the Supreme Court, is
that, if the recovery of money is only incidental to the relief that is prayed for in the complaint,
that action is not capable of pecuniary estimation.

The usual example given is that a complaint for specific performance plus a prayer for
recovery of damages. there is a prayer for recovery of damages it is true, but it is not the
principal relief that is sought by the plaintiff so that, where the case is for specific performance,
that is a civil action which is not capable of pecuniary estimation hence cognizable exclusively
by the Regional Trial Court.

But there are instances where the recovery of money is the principal relief that is sought
in the complaint or the petition, and yet the case is classified as one which is not capable of
pecuniary estimation. For instance, in a proceeding for expropriation or eminent domain.

In eminent domain, it is not correct to say that the recovery of money or payment of
money is an incidental relief. Payment of just compensation is one of the principal relief that
will be sought by petitioner.

Another example is the foreclosure of real estate mortgage. If a mortgagee files a

complaint for the foreclosure of mortgage, and the mortgage is founded upon a contract of
loan which has not been paid, a contract of loan that has not been defaulted, the principal
purpose of the mortgagee in filing a petition to foreclose a mortgage is to recover this unpaid
loan. In fact, in a foreclosure of real estate mortgage, if the debtor pays the loan, the
foreclosure proceedings will become academic, they will be mooted and they will have to be
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dismissed. So in a foreclosure of real estate mortgage that is founded on a contract of loan
which has not been paid, the complaint for foreclosure of mortgage will always carry with it a
relief for the payment of the loan.

In this instances, since it is pretty obvious that the purpose of the plaintiff is to recover a
sum of money, does it not mean to say now that foreclosure of real estate mortgage is an
action which is capable of pecuniary estimation? Well according to the Supreme Court, even if
the principal purpose for the foreclosure of mortgage is to recover an unpaid loan, still,
foreclosure of mortgage is an action which is not capable of pecuniary estimation. We apply
that same principle for expropriation proceedings. Even if the purpose in expropriating
property is to pay just compensation which is always in terms of pesos and centavos, the
complaint for expropriation cannot be considered as an action that is capable of pecuniary
estimation. The case is still an action, which is NOT capable of pecuniary estimation.
(reformation of contract, rescission, specific performance, foreclosure of mortgage, quieting of
title, expropriation)

Why is this so? There are two instances where the recovery of money is the principal
issue that is the sought by the complaint or the petition, and yet we dont consider these
actions as actions that are capable of pecuniary estimation. The answer is, in these two actions,
there is another principal issue that is involved. And this other principal issue must first be
decided before the recovery of money which is another principal issue to be resolved by the
court.

In foreclosure of mortgage, the first principal issue that should be first be resolved by
the court is whether or not the mortgagee has the right to foreclose. So that is an issue, that
the mortgagee has the right to foreclose. Is that capable of pecuniary estimation? Of course
that is NOT capable of pecuniary estimation.

Also in appropriation proceedings, the first principal issue is, whether or not the plaintiff
has the right to expropriate. So that is always the issue that must be resolved by the court in
expropriation proceedings, whether or not the plaintiff possesses the right to expropriate the
property. Again, that question is not capable of pecuniary estimation.

So the second principal issue that revolves around the payment of money cannot be
determined by the Court unless this first issue is resolved. Cannot the court in a foreclosure
proceeding order the payment of the loan, and then decide the issue of foreclosure? Is that
possible? Before the court can resolve the issue of payment of the loan, the court must first
adjudicate the issue of whether or not the plaintiff has the right to foreclose.

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 Now we apply the same principle in expropriation, cannot the court immediately order
the payment just compensation and then later on decide whether or not the plaintiff has the
right to expropriate? It is not possible. The court must first determine whether or not the
plaintiff has the right to expropriate, and if there is an affirmative ruling, that is the only
instances where the court can rule the issue of payment of just compensations.

One of the cases allocated to the RTC exercising exclusive and original jurisdiction is a
real action, a case involving title to or possession of real property where the assessed value
exceeds P20,000 or P50,000 as the case maybe.

Going back to the examples we had a while ago, that is the foreclosure of a real estate
mortgagee and expropriation of real property, do we not consider foreclosure of real estate
mortgagee and expropriation of real property as real actions? Dont they involve title to or
possession of real property? Of course they do, because in expropriation of real property, the
state or the expropriating agency of the state takes over the possession of real property. The
same is true with foreclosure of real estate mortgagee. The collateral, the security, is going to
be sold at public auction, and the ownership and possession of the collateral will be taken over
by the highest bidder. So do we now classify expropriation of real property and foreclosure of
mortgage of real property as real actions? the answer is YES. They are so classified. But then, if
they are so classified, why can we not make the case fall within the jurisdiction of the inferior
court where the assessed value of the real property does not exceed P20,000 or P50,000, as the
case may be? Well the answer is we cannot do that because it is also one which is not capable
of pecuniary estimation.

In other words, if an action possesses several characteristics that is the issue is one that
is NOT capable of pecuniary estimation but it is also simultaneously a real action, it is always
cognizable by the Regional Trial Court. In other words, that feature of NOT capable of
pecuniary estimation will always prevail over the other characteristics of the action being a
real action. That is the reason why foreclosure of real estate mortgage or expropriation of real
property will always be cognizable by the Regional Trial Court. We do not factor in the assessed
value of the property in ascertaining the jurisdiction of the courts.

If the real property involved in litigation does not have an assessed value, could that
happen? the answer is YES. There are several properties in the country which have not been
assessed for tax purposes. in other words, they dont have any assessed valuation at all in the
office of the municipal or city assessor or the provincial assessor. So how do we now know
determine the jurisdiction of the court if the property involved has NO assessed value? Well all
you have to do is to go to neighboring lot. That is you go to the neighboring lots until you locate

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the property that has an assessed value. And that will be the basis in ascertaining the
jurisdiction of the court.

Role of the assessed value of properties in determining jurisdiction; personal actions and the
principle of adherence of jurisdiction.

But we should note, that assessed valuation of the property plays an important role in
determining the jurisdiction of the court, only if the property is a real property. But when the
property is PERSONAL property, we can forget about assessed value as the basis in determining
the jurisdiction of the court. You see in our system, we dont generally base assessed valuation
to personal property.

So if the case is for the recovery of the car, the jurisdiction of the court will not be based
on the assessed value of the car or even the market value of the car. Now if the plaintiff seeks
to recover property, a car, how do we then determine the jurisdiction of the court? Jurisdiction
of the court is determined by the valuation given by the plaintiff car. So if the plaintiff in the
complaint says the car is worth P500,000, then the case is cognizable by the Regional Trial
Court.

Supposing that the valuation given by the plaintiff of P500,000 is really bloated. It is
unreasonable. Will the case still fall within the jurisdiction of the Regional Trial Court? The
answer is YES. Jurisdiction of the court in the recovery of personal property will depend on the
valuation given by the plaintiff in his complaint. But in our system, after the filing of the
complaint the defendant is given the chance to present his side by responding to the complaint,
by filing his answer.

Cannot the defendant in his answer now, set up the defense that the court does not
have jurisdiction because the legitimate value of the car is only P150,000? the answer is NO.
the jurisdiction of the court when it comes to the recovery of personal property, or for the
recovery of money for that matter, will depend on the allegations contained in the complaint.
Even if the valuation given is exaggerated, even if the valuation given is bloated, the jurisdiction
of the court will always be ascertained by allegations contained in the complaint.

Does it mean to say then, that in personal actions the jurisdiction of the court would rely
solely on the whim or caprice of the plaintiff? The answer is YES. All he has to do is to bloat his
claim if he wants to have the case filed before the Regional Trial Court. If the debtor owes the
creditor only P150,000 but in his complaint the creditor says that the debtor owes him P1M,
that the case will be cognizable by the Regional Trial Court. For the purpose of determining the
jurisdiction of the court, we rely solely on the allegations embodied in the complaint. We do
not take into the truthfulness or falsity of these allegations. The truthfulness or falsity will be
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determined later on by the court but that will not affect the jurisdiction of the court. That is
simply the principle of adherence of jurisdiction. Once a court acquires jurisdiction over a case
based on the allegations contained in the complaint, the court continues to exercise
jurisdictions until the case is finally adjudicated.

EXPANDED JURISDICTION OF THE MTC

We should always remember that the jurisdiction of the Metropolitan Trial Courts has
been expanded. So even admiralty and maritime cases are now cognizable by the inferior
courts depending on the amount involved. In the law providing for expanded jurisdiction of
inferior courts, in RA 7691 which was enacted in 1994m there is a section which says that five
years from the effectivity of the law, the amount will be increased in so far as Metro Manila
courts are concerned from P200,000 to P400,000 and then, for inferior courts outside Metro
Manila from P100,000 to P200,000. That was in 1999. There is also a provision which says, that
for the second year five year period, the jurisdiction of inferior courts shall be increased to
P300,000. I think we are now n the second year five year period. As of now, the jurisdiction of
inferior courts outside Metro Manila should be raised to P300,000, but with respect to Manila
inferior courts the jurisdictional amount will still be P400,000.

WHO HAS JURISDICTION OVER A COMPLAINT FOR THE RECOVERY OF P1M, RTC or MTC?

In classroom examinations it is a standard question to ask whether or not a complaint

for the recovery of P1M is cognizable by a Regional Trial Court or by an inferior court. Most of
the time, the answer given is the whole claim is cognizable by the Regional Trial Court. Thats
not correct. Under the expanded jurisdiction of inferior courts, there are three items that
should be excluded in determining the courts jurisdiction when it comes to recovery of money.
Interest, attorneys fees, damages and charges of whatsoever kind should not be included in
ascertaining jurisdiction of the court, but they should be included in fixing filling fees.

So if the complaint is for the recovery of the plaintiff of P1M, it is not correct to say right
away that the case is cognizable by the Regional Trial Court. That case could be cognizable by
the inferior court depending on the details of P1M embodied in the complaint if the principal
sought to be recovered is only P200, 000 but the balance of P800,000 covers expenses,
attorneys fees damages and interest, the case is cognizable by an inferior court. So we always
factor in the excluded items in determining the jurisdiction of courts whenever it comes to the
recovery of money. Do not jump to the conclusion right away that the complaint for the
recovery of more than P200,000 is cognizable by the Regional Trial Court. That amount of
P400,000 pertains only to the principal sought to be recovered by the plaintiff. If the amount in
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excess of P400,000 will already include expenses, attorneys fees, and other charges, there is a
chance that the case will be cognizable by an inferior court.

Complaint for the recovery of sum of money in relation to Rule 10, Section 5 (Amendment to
conform to or to authorize the presentation of evidence)

In certain cases, the problem that comes out where the plaintiff files a complaint for the
recovery of the principal sum of P500,000 before the Regional Trial Court, and during the
hearing, the plaintiff introduces evidence which, convinces the court that the plaintiff is entitled
not only to P500,000 but to P1M. The first inquiry is, could it be done? Could a complaint for
the recovery of P500,000 and up, but with an award of P1M because that is what the evidence
has clearly demonstrated? The answer is YES. If there is a complaint to recover P500,000, the
plaintiff can introduce evidence to show that he is entitled not only to P500,000 but to P1M.
that is allowed if the defendant does not object to the presentation of this evidence. The
pertinent rule is Rule 110 when it comes to this situation, the provision in Rule 110 on
amendment to conform to evidence so if there is a complaint for the recovery of P500,000 and
the plaintiff introduces evidence that he is entitled to P1M, and there is no objection that in
interposed by the defendant, the court will admit the evidence. And after admitting the
evidence, the court can give an award of P1M although that is not the figure that is sought by
the plaintiff in his complaint.

The PRINCIPLE OF ADHERENCE TO JURISDICTION

Supposing that in the same case the plaintiff seeks to recover P500,000 so the case is
filed before the Regional Trial Court. During the trial, the plaintiff is able to prove that his
entitlement is only P150,000 which is below the jurisdictional amount of the Regional Trial
Court. Can the Regional Trial Court render validly a judgment for the payment of P150,000? The
answer is YES. The principle of adherence to jurisdiction. Once the court acquires jurisdiction
over this case, the court continues to exercise jurisdiction until its final adjudication. If we start
with a complaint for P500,000 but the amount that should be awarded is only P150,000, the
Regional Trial Court has jurisdiction to give the award of P150,000 even if this amount is below
the jurisdictional amount given in BP 129.

The PRINCIPLE OF ANCILLARY JURISDICTION

If it is the other way around, then we follow the principle of ancillary jurisdiction. Here
is a complaint for the recovery of P150,000. The case is cognizable by an inferior court. During
the trial, the plaintiff presents evidence to show that it is entitled not only to P150,000 but to
P700,000. Can the inferior court give an award of P700,000? The answer is NO. This time the
inferior court cannot give an award of P700,000 because the inferior court will be violating its
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limited jurisdiction. The Jurisdiction of the inferior court is limited to either P200,000 or
P400,000 .

So that rule works only if it is a Regional Trial Court thats trying the case, the value
could be reduced. But when the case is before an inferior court and the amount t be awarded
goes beyond the jurisdictional amount given in BP 129, the court cannot give an award of
P700,000.

What should the plaintiff do if he is able to prove that he is entitled to P700,000 but the
court cannot give an award for this amount? Well one of the options given to the plaintiff is just
waive his entitlement to the excess of P400,000 because the inferior court can give an award up
to P400,000 or P200,000, as the case may be. But if he insist should award P700,000 that
decision will be null and void, because it goes beyond the jurisdictional limits given by BP 129 to
an inferior court.

RTC and the Family Court

You should also take note that the jurisdiction of a Regional Trial Court in cases that
used to be adjudicated by the Juvenile and Domestic Relations Court which were allocated to a
Regional Trial Court has also been changed, given the creation of Family Courts. We now have
Family Courts which exercise exclusive original jurisdiction over these cases, guardianship,
adoption, family related cases. They are now cognizable exclusively by the Family Courts. They
are no longer entertained by the Regional Trial Court.

The jurisdiction of inferior courts

When it comes to jurisdiction of inferior courts, which we say has already been
expanded, can we now assert rightfully that inferior courts should also be treated as courts of
general jurisdiction because of their expanded jurisdiction, maritime cases, even cases for
probate, testate or intestate. Practically all cases that are triable by the Regional Trial Court
could now be tried by an inferior court, depending on the amount involved. Does it not make
these inferior court, courts of general jurisdiction? The answer in NO. Even if we take into
account the expanded jurisdiction of inferior courts, inferior courts are still courts of limited
jurisdiction. As we said earlier it is only the Court of First Instance that is vested with authority
to try and decide cases of any kind., which are not allocated to other courts. This provision is
not contained in the allocation of cases given to inferior courts by BP 129 and the amendatory
statutes.

The totality test

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 In the jurisdiction of inferior courts, in sec. 33, you should memorize the very short
provision, the qualifying phrase which embodies the totality test in jurisdiction. There is a
totality test also contained in the Rules of Court but it is a very simple one. The complete
totality test in determining jurisdiction is found in BP 129, that is Sec. 33. Now it says that the
totality of all the claims, shall be the basis in determining jurisdiction, that is the totality of all
claims embodied in other complaint shall be the test in determining jurisdiction, whether or
not these claims arise out of the same or different transactions or whether they belong to the
same or different persons. The is the complete totality test in determining jurisdiction, which is
not the totality test that is embodied in the Rules of Court.

It is proper for BP 129 to provide the totality test in determining jurisdiction? The answer is
YES, because jurisdiction over the subject matter and nature of the action is really substantive
law. That is a prerogative given exclusively to the legislature. So if you feel that there is any
inconsistency between the totality test contained in the Rules of Court and that contained in BP
129 Sec. 33, the totality test in BP 129 should always prevail whether or not the claims belong
to the same or different persons, and whether or not these claims arise out of the same or
different transactions. As long as they embodied properly in one complaint, the totality of all
the claims shall be the basis in determining the jurisdiction of the court.

DELEGATED JURISDICTION OF INFERIOR COURTS

Inferior courts also are given what we call Delegated Jurisdiction. That is to try land
registration and cadastral cases, regardless of value, if the case is uncontested. But if the case is
contested, the delegation should be limited to properties the values of which do not exceed
P100,000.

In the vesting of delegated jurisdiction to inferior courts, we should also notice that the
appeal from these cases should not be to the Regional Trial Court. The cadastral and land
registration cases are tried by an inferior court, the inferior court acts as if it were a Regional
Trial Court. So that if theres and appeal from these cases, the case should be brought to the
Court of Appeals. That is the only lone instance in the Rules on Appeal, where appeal from a
decision rendered by an inferior court is taken directly to the Court of Appeals. Generally,
decisions rendered by an inferior court are appealable to a Regional Trial Court. We follow in
appeals the step ladder approach, so far from the inferior court we go to the Regional Trial
Court, from the Regional Trial Court we go to the Court of Appeals. But now when the inferior
court exercises its delegated jurisdiction to try and decide cadastral and land registration cases.

INTERLOCUTORY OR SPECIAL JURISDICTION OF INFERIOR COURTS

14
 There is also the vesting of interlocutory jurisdiction or what BP 129 calls special
jurisdiction of inferior courts, that is to hear habeas corpus cases when judges of the Regional
Trial Court in that region are absent. This is an exercise of special jurisdiction by inferior courts.

In the matter of jurisdiction, you must have met also the term primary jurisdiction. BP
129 does not use the word or the term primary jurisdiction. This term is used in special
legislation, like the agrarian reform code. In the Agrarian Reform Code, it is provided that
primary jurisdiction over land reform cases shall be exercised by the Department of Agrarian
Reform. So what does primary jurisdiction mean in relation to the concept of jurisdiction given
in BP 129? Primary Jurisdiction refers to a situation where the case is cognizable both by the
court of justice and a quasi judicial or administrative agency. But when that case need s for its
resolution special skills and expertise of an administrative or quasi judicial body then
jurisdiction should be given initially to the quasi judicial body or administrative agency. The
jurisdiction of the court can only come later after the administrative or quasi judicial body has
decided the case. So whenever the adjudication of litigation needs expertise, the special skills
which are not possessed by the regular courts of justice, primary jurisdiction should be given to
the administrative agency or quasi judicial body.

RESIDUAL JURISDICTION OF THE TRIAL COURTS

We also met the term residual jurisdiction in our study of BP 129. Residual jurisdiction is
the jurisdiction that is left to be exercised by the trial court after the case has been appealed
to a higher court. The concept of residual jurisdiction is contained in Rule 41 and also Rule 42.

Residual Jurisdiction refers to a situation where a case decided by a trial court has been
appealed. Generally, our concept is that when a case has been appealed, the jurisdiction over
the appealed case is not vested with the appellate court which is correct. But there are certain
incidents that could still be decided by the trial court, notwithstanding the perfection of the
appeal. These incidents that would still be decided by the trial court after the perfection of the
appeal are covered by Rule 41 and 42, called as the residual jurisdiction of the trial court.

x-x-x-x

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

15
G.R. No. 173915 February 22, 2010

IRENE SANTE AND REYNALDO SANTE, Petitioners,

vs.
HON. EDILBERTO T. CLARAVALL, in his capacity as Presiding Judge of Branch 60,
Regional Trial Court of Baguio City, and VITA N. KALASHIAN, Respondents.

DECISION

VILLARAMA, JR., J.:

Before this Court is a petition for certiorari1 under Rule 65 of the 1997 Rules of Civil Procedure,
as amended, filed by petitioners Irene and Reynaldo Sante assailing the Decision2 dated January
31, 2006 and the Resolution3dated June 23, 2006 of the Seventeenth Division of the Court of
Appeals in CA-G.R. SP No. 87563. The assailed decision affirmed the orders of the Regional
Trial Court (RTC) of Baguio City, Branch 60, denying their motion to dismiss the complaint for
damages filed by respondent Vita Kalashian against them.

The facts, culled from the records, are as follows:

On April 5, 2004, respondent filed before the RTC of Baguio City a complaint for
damages4 against petitioners. In her complaint, docketed as Civil Case No. 5794-R, respondent
alleged that while she was inside the Police Station of Natividad, Pangasinan, and in the
presence of other persons and police officers, petitioner Irene Sante uttered words, which when
translated in English are as follows, "How many rounds of sex did you have last night with your
boss, Bert? You fuckin bitch!" Bert refers to Albert Gacusan, respondents friend and one (1) of
her hired personal security guards detained at the said station and who is a suspect in the killing
of petitioners close relative. Petitioners also allegedly went around Natividad, Pangasinan
telling people that she is protecting and cuddling the suspects in the aforesaid killing. Thus,
respondent prayed that petitioners be held liable to pay moral damages in the amount
of P300,000.00; P50,000.00 as exemplary damages; P50,000.00 attorneys fees;P20,000.00
litigation expenses; and costs of suit.

Petitioners filed a Motion to Dismiss5 on the ground that it was the Municipal Trial Court in
Cities (MTCC) and not the RTC of Baguio, that had jurisdiction over the case. They argued that
the amount of the claim for moral damages was not more than the jurisdictional amount
of P300,000.00, because the claim for exemplary damages should be excluded in computing the
total claim.

On June 24, 2004,6 the trial court denied the motion to dismiss citing our ruling in Movers-
Baseco Integrated Port Services, Inc. v. Cyborg Leasing Corporation.7 The trial court held that
the total claim of respondent amounted toP420,000.00 which was above the jurisdictional
amount for MTCCs outside Metro Manila. The trial court also later issued Orders on July 7,
20048 and July 19, 2004,9 respectively reiterating its denial of the motion to dismiss and denying
petitioners motion for reconsideration.

16
Aggrieved, petitioners filed on August 2, 2004, a Petition for Certiorari and
Prohibition,10 docketed as CA-G.R. SP No. 85465, before the Court of Appeals. Meanwhile, on
July 14, 2004, respondent and her husband filed an Amended Complaint11 increasing the claim
for moral damages from P300,000.00 to P1,000,000.00. Petitioners filed a Motion to Dismiss
with Answer Ad Cautelam and Counterclaim, but the trial court denied their motion in an
Order12 dated September 17, 2004.

Hence, petitioners again filed a Petition for Certiorari and Prohibition13 before the Court of
Appeals, docketed asCA-G.R. SP No. 87563, claiming that the trial court committed grave abuse
of discretion in allowing the amendment of the complaint to increase the amount of moral
damages from P300,000.00 to P1,000,000.00. The case was raffled to the Seventeenth Division
of the Court of Appeals.

On January 23, 2006, the Court of Appeals, Seventh Division, promulgated a decision in CA-
G.R. SP No. 85465, as follows:

WHEREFORE, finding grave abuse of discretion on the part of [the] Regional Trial Court of
Baguio, Branch 60, in rendering the assailed Orders dated June 24, 2004 and July [19], 2004 in
Civil Case No. 5794-R the instant petition for certiorari is GRANTED. The assailed Orders are
hereby ANNULLED and SET ASIDE. Civil Case No. 5794-R for damages is ordered
DISMISSED for lack of jurisdiction.

SO ORDERED.14

The Court of Appeals held that the case clearly falls under the jurisdiction of the MTCC as the
allegations show that plaintiff was seeking to recover moral damages in the amount
of P300,000.00, which amount was well within the jurisdictional amount of the MTCC. The
Court of Appeals added that the totality of claim rule used for determining which court had
jurisdiction could not be applied to the instant case because plaintiffs claim for exemplary
damages was not a separate and distinct cause of action from her claim of moral damages, but
merely incidental to it. Thus, the prayer for exemplary damages should be excluded in computing
the total amount of the claim.

On January 31, 2006, the Court of Appeals, this time in CA-G.R. SP No. 87563, rendered a
decision affirming the September 17, 2004 Order of the RTC denying petitioners Motion to
Dismiss Ad Cautelam. In the said decision, the appellate court held that the total or aggregate
amount demanded in the complaint constitutes the basis of jurisdiction. The Court of Appeals did
not find merit in petitioners posture that the claims for exemplary damages and attorneys fees
are merely incidental to the main cause and should not be included in the computation of the
total claim.

The Court of Appeals additionally ruled that respondent can amend her complaint by increasing
the amount of moral damages from P300,000.00 to P1,000,000.00, on the ground that the trial
court has jurisdiction over the original complaint and respondent is entitled to amend her
complaint as a matter of right under the Rules.

17
Unable to accept the decision, petitioners are now before us raising the following issues:

I.

WHETHER OR NOT THERE WAS GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK

OR IN EXCESS OF JURISDICTION ON THE PART OF THE (FORMER) SEVENTEENTH
DIVISION OF THE HONORABLE COURT OF APPEALS WHEN IT RESOLVED THAT THE
REGIONAL TRIAL COURT OF BAGUIO CITY BRANCH 60 HAS JURISDICTION OVER THE
SUBJECT MATTER OF THE CASE FOR DAMAGES AMOUNTING TO P300,000.00;

II.

WHETHER OR NOT THERE WAS GRAVE ABUSE OF DISCRETION ON THE PART OF THE
HONORABLE RESPONDENT JUDGE OF THE REGIONAL TRIAL COURT OF BAGUIO
BRANCH 60 FOR ALLOWING THE COMPLAINANT TO AMEND THE COMPLAINT
(INCREASING THE AMOUNT OF DAMAGES TO 1,000,000.00 TO CONFER JURISDICTION
OVER THE SUBJECT MATTER OF THE CASE DESPITE THE PENDENCY OF A PETITION
FOR CERTIORARI FILED AT THE COURT OF APPEALS, SEVENTH DIVISION, DOCKETED
AS CA G.R. NO. 85465.15

In essence, the basic issues for our resolution are:

1) Did the RTC acquire jurisdiction over the case? and

2) Did the RTC commit grave abuse of discretion in allowing the amendment of the
complaint?

Petitioners insist that the complaint falls under the exclusive jurisdiction of the MTCC. They
maintain that the claim for moral damages, in the amount of P300,000.00 in the original
complaint, is the main action. The exemplary damages being discretionary should not be
included in the computation of the jurisdictional amount. And having no jurisdiction over the
subject matter of the case, the RTC acted with grave abuse of discretion when it allowed the
amendment of the complaint to increase the claim for moral damages in order to confer
jurisdiction.

In her Comment,16 respondent averred that the nature of her complaint is for recovery of
damages. As such, the totality of the claim for damages, including the exemplary damages as
well as the other damages alleged and prayed in the complaint, such as attorneys fees and
litigation expenses, should be included in determining jurisdiction. The total claim
being P420,000.00, the RTC has jurisdiction over the complaint.

We deny the petition, which although denominated as a petition for certiorari, we treat as a
petition for review on certiorari under Rule 45 in view of the issues raised.

Section 19(8) of Batas Pambansa Blg. 129,17 as amended by Republic Act No. 7691,18 states:
18
SEC. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original
jurisdiction:

xxxx

(8) In all other cases in which the demand, exclusive of interest, damages of whatever kind,
attorneys fees, litigation expenses, and costs or the value of the property in controversy exceeds
One hundred thousand pesos (P100,000.00) or, in such other cases in Metro Manila, where the
demand, exclusive of the abovementioned items exceeds Two hundred thousand pesos
(P200,000.00).

Section 5 of Rep. Act No. 7691 further provides:

SEC. 5. After five (5) years from the effectivity of this Act, the jurisdictional amounts mentioned
in Sec. 19(3), (4), and (8); and Sec. 33(1) of Batas Pambansa Blg. 129 as amended by this Act,
shall be adjusted to Two hundred thousand pesos (P200,000.00). Five (5) years thereafter, such
jurisdictional amounts shall be adjusted further to Three hundred thousand pesos
(P300,000.00): Provided, however, That in the case of Metro Manila, the abovementioned
jurisdictional amounts shall be adjusted after five (5) years from the effectivity of this Act to
Four hundred thousand pesos (P400,000.00).

Relatedly, Supreme Court Circular No. 21-99 was issued declaring that the first adjustment in
jurisdictional amount of first level courts outside of Metro Manila from P100,000.00
to P200,000.00 took effect on March 20, 1999. Meanwhile, the second adjustment
from P200,000.00 to P300,000.00 became effective on February 22, 2004 in accordance with
OCA Circular No. 65-2004 issued by the Office of the Court Administrator on May 13, 2004.

Based on the foregoing, there is no question that at the time of the filing of the complaint on
April 5, 2004, the MTCCs jurisdictional amount has been adjusted to P300,000.00.

But where damages is the main cause of action, should the amount of moral damages prayed for
in the complaint be the sole basis for determining which court has jurisdiction or should the total
amount of all the damages claimed regardless of kind and nature, such as exemplary damages,
nominal damages, and attorneys fees, etc., be used?

In this regard, Administrative Circular No. 09-9419 is instructive:

xxxx

2. The exclusion of the term "damages of whatever kind" in determining the jurisdictional
amount under Section 19 (8) and Section 33 (1) of B.P. Blg. 129, as amended by R.A. No. 7691,
applies to cases where the damages are merely incidental to or a consequence of the main
cause of action. However, in cases where the claim for damages is the main cause of action, or
one of the causes of action, the amount of such claim shall be considered in determining the
jurisdiction of the court. (Emphasis ours.)
19
In the instant case, the complaint filed in Civil Case No. 5794-R is for the recovery of damages
for the alleged malicious acts of petitioners. The complaint principally sought an award of moral
and exemplary damages, as well as attorneys fees and litigation expenses, for the alleged shame
and injury suffered by respondent by reason of petitioners utterance while they were at a police
station in Pangasinan. It is settled that jurisdiction is conferred by law based on the facts
alleged in the complaint since the latter comprises a concise statement of the ultimate facts
constituting the plaintiffs causes of action.20 It is clear, based on the allegations of the
complaint, that respondents main action is for damages. Hence, the other forms of damages
being claimed by respondent, e.g., exemplary damages, attorneys fees and litigation expenses,
are not merely incidental to or consequences of the main action but constitute the primary relief
prayed for in the complaint.

In Mendoza v. Soriano,21 it was held that in cases where the claim for damages is the main cause
of action, or one of the causes of action, the amount of such claim shall be considered in
determining the jurisdiction of the court. In the said case, the respondents claim of P929,000.06
in damages and P25,000 attorneys fees plus P500 per court appearance was held to represent
the monetary equivalent for compensation of the alleged injury. The Court therein held that the
total amount of monetary claims including the claims for damages was the basis to determine the
jurisdictional amount.

Also, in Iniego v. Purganan,22 the Court has held:

The amount of damages claimed is within the jurisdiction of the RTC, since it is the claim for all
kinds of damages that is the basis of determining the jurisdiction of courts, whether the claims
for damages arise from the same or from different causes of action.

xxxx

Considering that the total amount of damages claimed was P420,000.00, the Court of Appeals
was correct in ruling that the RTC had jurisdiction over the case.

Lastly, we find no error, much less grave abuse of discretion, on the part of the Court of Appeals
in affirming the RTCs order allowing the amendment of the original complaint
from P300,000.00 to P1,000,000.00 despite the pendency of a petition for certiorari filed before
the Court of Appeals. While it is a basic jurisprudential principle that an amendment cannot be
allowed when the court has no jurisdiction over the original complaint and the purpose of the
amendment is to confer jurisdiction on the court,23 here, the RTC clearly had jurisdiction over
the original complaint and amendment of the complaint was then still a matter of right.24

WHEREFORE, the petition is DENIED, for lack of merit. The Decision and Resolution of the
Court of Appeals dated January 31, 2006 and June 23, 2006, respectively, are AFFIRMED. The
Regional Trial Court of Baguio City, Branch 60 is DIRECTED to continue with the trial
proceedings in Civil Case No. 5794-R with deliberate dispatch.

20
xxxxxx

BATAS PAMBANSA Blg. 129

AN ACT REORGANIZING THE JUDICIARY, APPROPRIATING FUNDS THEREFOR,

AND FOR OTHER PURPOSES

PRELIMINARY CHAPTER

Section 1. Title. This Act shall be known as "The Judiciary Reorganization Act of 1980."

Section 2. Scope. The reorganization herein provided shall include the Court of Appeals, the
Court of First Instance, the Circuit Criminal Courts, the Juvenile and Domestic Relations
Courts, the Courts of Agrarian Relations, the City Courts, the Municipal Courts, and the
Municipal Circuit Courts.

CHAPTER I
COURT OF APPEALS

Section 3. Organization. There is hereby created a Court of Appeals which consists of a

Presiding Justice and fifty Associate Justice who shall be appointed by the President of the
Philippines. The Presiding Justice shall be so designated in his appointment, and the Associate
Justice shall have precedence according to the dates of their respective appointments, or when
the appointments of two or more of them shall bear the same date, according to the order in
which their appointments were issued by the President. Any member who is reappointed to the
Court after rendering service in any other position in the government shall retain the precedence
to which he was entitled under his original appointment, and his service in the Court shall, for
all intents and purposes, be considered as continuous and uninterrupted. (as amended by Exec.
Order No. 33,, July 28, 1986.)

Section 4. Exercise of powers and functions. The Court Appeals shall exercise its powers,
functions, and duties, through seventeen (17) divisions, each composed of three (3) members.
The Court may sit en banc only for the purpose of exercising administrative, ceremonial, or
other non-adjudicatory functions. (as amended by Exec. Order No. 33,.)

Section 5. Succession to Office of Presiding Justice. In case of a vacancy in the absence of

inability to perform the powers, functions, and duties of his office, the associate Justice who is
first in precedence shall perform his powers, functions, and duties until such disability is
removed, or another Presiding Justice is appointed and has qualified.

Section 6. Who presides over session of a division. If the Presiding Justice is present in any
session of a division of the Court, he shall preside. In his absence, the Associate Justice
attending such session who has precedence shall preside.

21
Section 7. Qualifications. The Presiding Justice and the Associate Justice shall have the same
qualifications as those provided in Constitution for Justice of the Supreme Court.

Section 8. Grouping of Divisions. (Expressly repealed by Section 4, Exec. Order No. 33, July
28, 1986.)

Section 9. Jurisdiction. The Court of Appeals shall Exercise:

1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas

corpus, and quo warranto,and auxiliary writs or processes, whether or not in aid of its
appellate jurisdiction;

2. Exclusive original jurisdiction over actions for annulment of judgements of Regional

Trial Courts; and

3. Exclusive appellate jurisdiction over all final judgements, 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 od
Section 17 of the Judiciary Act of 1948.

The court of Appeals shall have the power to try cases and conduct hearings, receive evidence
and perform any and all acts necessary to resolve factual issues raised in cases falling within its
original and appellate jurisdiction, including the power to grant and conduct new trials or
Appeals must be continuous and must be completed within three (3) months, unless extended by
the Chief Justice. (as amended by R.A. No. 7902.)

CHAPTER II
REGIONAL TRIAL COURTS

Section 13. Creation of Regional Trial Courts. There are hereby created thirteen (13) Regional
Trial Courts, one for each of the following judicial regions:

Section 15. Qualifications. No persons shall be appointed Regional Trial Judge unless he is a
natural-born citizen of the Philippines, at least thirty-five years of age, and for at least ten years,
has been engaged in the practice of law in the Philippines or has held a public office in the
Philippines requiring admission to the practice of law as an indispensable requisite.

22
Section 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original
jurisdiction:

(1) In all civil actions in which the subject of the litigation is incapable of pecuniary
estimation;

(2) In all civil actions which involve the title to, or possession of, real property, or any
interest therein, where the assessed value of the property involved exceeds Twenty
thousand pesos (P20,000.00) or for civil actions in Metro Manila, where such the value
exceeds Fifty thousand pesos (50,000.00) except actions for forcible entry into and
unlawful detainer of lands or buildings, original jurisdiction over which is conferred
upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts;

(3) In all actions in admiralty and maritime jurisdiction where he demand or claim
exceeds One hundred thousand pesos (P100,000.00) or , in Metro Manila, where such
demand or claim exceeds Two hundred thousand pesos (200,000.00);

(4) In all matters of probate, both testate and intestate, where the gross value of the
estate exceeds One hundred thousand pesos (P100,000.00) or, in probate matters in
Metro Manila, where such gross value exceeds Two hundred thousand pesos
(200,000.00);

(5) In all actions involving the contract of marriage and marital relations;

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-
judicial functions;

(7) In all civil actions and special proceedings falling within the exclusive original
jurisdiction of a Juvenile and Domestic Relations Court and of the Courts of Agrarian
Relations as now provided by law; and

(8) In all other cases in which the demand, exclusive of interest, damages of whatever
kind, attorney's fees, litigation expenses, and costs or the value of the property in
controversy exceeds One hundred thousand pesos (100,000.00) or, in such other
abovementioned items exceeds Two hundred thousand pesos (200,000.00). (as amended
by R.A. No. 7691*)

Section 20. Jurisdiction in criminal cases. Regional Trial Courts shall exercise exclusive
original jurisdiction in all criminal cases not within the exclusive jurisdiction of any court,
tribunal or body, except those now falling under the exclusive and concurrent jurisdiction of the
Sandiganbayan which shall hereafter be exclusively taken cognizance of by the latter.

23
Section 21. Original jurisdiction in other cases. Regional Trial Courts shall exercise original
jurisdiction:

(1) In the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction which may be enforced in any part of their respective regions; and

(2) In actions affecting ambassadors and other public ministers and consuls.

Section 22. Appellate jurisdiction. Regional Trial Courts shall exercise appellate jurisdiction
over all cases decided by Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts in their respective territorial jurisdictions. Such cases shall be decided on
the basis of the entire record of the proceedings had in the court of origin and such memoranda
and/or briefs as may be submitted by the parties or required by the Regional Trial Courts. The
decision of the Regional Trial Courts in such cases shall be appealable by petition for review to
the

Court of Appeals which may give it due course only when the petition shows prima facie that the
lower court has committed an error of fact or law that will warrant a reversal or modification of
the decision or judgment sought to be reviewed.

Section 23. Special jurisdiction to try special cases. The Supreme Court may designate certain
branches of the Regional Trial Courts to handle exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban land reform cases which do not fall under the
jurisdiction of quasi-judicial bodies and agencies, and/or such other special cases as the
Supreme Court may determine in the interest of a speedy and efficient administration of justice.

Section 24. Special Rules of Procedure. Whenever a Regional Trial Court takes cognizance of
juvenile and domestic relation cases and/or agrarian cases, the special rules of procedure
applicable under present laws to such cases shall continue to be applied, unless subsequently
amended by law or by rules of court promulgated by the Supreme Court.

CHAPTERIII
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS, AND MUNICIPAL
CIRCUIT TRIAL COURTS

Section 25. Establishment of Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts. There shall be created a Metropolitan Trial Court in each metropolitan
area established by law, a Municipal Trial Court in each of the other cities or municipalities,
and a Municipal Circuit Trial Court in each circuit comprising such cities and/or municipalities
as are grouped together pursuant to law.

Section 26. Qualifications. No person shall be appointed judge of a Metropolitan Trial Court,
Municipal Trial Court, or Municipal Circuit Trial Court unless he is a natural-born citizen of
the Philippines, at least 30 years of age, and, for at least five years, has been engaged in the

24
practice of law in the Philippines, or has held a public office in the Philippines requiring
admission to the practice of law as an indispensable requisite.

Section 27. Metropolitan Trial Courts of the National Capital Region. There shall be a
Metropolitan Trial Court in the National Capital Region, to be known as the Metropolitan Trial
Court of Metro Manila, which shall be composed of eighty-two (82) branches. There shall be:

Section 28. Other Metropolitan Trial Courts. The Supreme Court shall constitute Metropolitan
Trial Courts in such other metropolitan areas as may be established by law whose territorial
jurisdiction shall be co-extensive with the cities and municipalities comprising the metropolitan
area.

Every Metropolitan Trial Judge shall be appointed to a metropolitan area which shall be his
permanent station and his appointment shall state branch of the court and the seat thereof to
which he shall be originally assigned. A Metropolitan Trial Judge may be assigned by the
Supreme Court to any branch within said metropolitan area as the interest of justice may
require, and such assignment shall not be deemed an assignment to another station within the
meaning of this section.

Section 29. Municipal Trial Courts in cities. In every city which does not form part of a
metropolitan area, there shall be a Municipal Trial Court with one branch, except as hereunder
provided:

30. Municipal Trial Courts. In each of the municipalities that are not comprised within a
metropolitan area and a municipal circuit there shall be a Municipal Trial Court which shall
have one branch, except as hereunder provided:

Section 31. Municipal Circuit Trial Court. There shall be a Municipal Circuit Trial Court in
each area defined as a municipal circuit, comprising one or more cities and/or one or more
municipalities. The municipalities comprising municipal circuits as organized under
Administrative Order No. 33, issued on June 13, 1978 by the Supreme Court pursuant to
Presidential Decree No. 537, are hereby constituted as municipal circuits for purposes of the
establishment of the Municipal Circuit Trial Courts, and the appointment thereto of Municipal
Circuit Trial Judges:Provided, however, That the Supreme Court may, as the interests of justice
may require, further reorganize the said courts taking into account workload, geographical
location, and such other factors as will contribute to a rational allocation thereof, pursuant to
the provisions of Presidential Decree No. 537 which shall be applicable insofar as they are not
inconsistent with this Act.

Every Municipal Circuit Trial Judge shall be appointed to a municipal circuit which shall be his
official station.

25
The Supreme Court shall determine the city or municipality where the Municipal Circuit Trial
Court shall hold sessions.

Section 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in criminal cases. Except in cases falling within the exclusive original
jurisdiction of Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise:

(1) Exclusive original jurisdiction over all violations of city or municipal ordinances
committed within their respective territorial jurisdiction; and

(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not
exceeding six (6) years irrespective of the amount of fine, and regardless of other
imposable accessory or other penalties, including the civil liability arising from such
offenses or predicated thereon, irrespective of kind, nature, value, or amount
thereof: Provided, however, That in offenses involving damage to property through
criminal negligence they shall have exclusive original jurisdiction thereof. (as amended
by R.A, No. 7691)

Section 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal
Circuit Trial Courts in civil cases. Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall exercise:

(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and
intestate, including the grant of provisional remedies in proper cases, where the value of
the personal property, estate, or amount of the demand does not exceed One hundred
thousand pesos (P100,000.00) or, in Metro Manila where such personal property, estate,
or amount of the demand does not exceed Two hundred thousand pesos (P200,000.00)
exclusive of interest damages of whatever kind, attorney's fees, litigation expenses, and
costs, the amount of which must be specifically alleged: Provided, That where there are
several claims or causes of action between the same or different parties, embodied in the
same complaint, the amount of the demand shall be the totality of the claims in all the
causes of action, irrespective of whether the causes of action arose out of the same or
different transactions;

(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer:
Provided, That when, in such cases, the defendant raises the question of ownership in his
pleadings and the question of possession cannot be resolved without deciding the issue of
ownership, the issue of ownership shall be resolved only to determine the issue of
possession.

(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession
of, real property, or any interest therein where the assessed value of the property or
interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions
in Metro Manila, where such assessed value does not exceed Fifty thousand pesos

26
 (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation
expenses and costs: Provided, That value of such property shall be determined by the
assessed value of the adjacent lots. (as amended by R.A. No. 7691)

Section 34. Delegated jurisdiction in cadastral and land registration cases. Metropolitan Trial
Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts may be assigned by the
Supreme Court to hear and determine cadastral or land registration cases covering lots where
there is no controversy or opposition, or contested lots the where the value of which does not
exceed One hundred thousand pesos (P100,000.00), such value to be ascertained by the affidavit
of the claimant or by agreement of the respective claimants if there are more than one, or from
the corresponding tax declaration of the real property. Their decisions in these cases shall be
appealable in the same manner as decisions of the Regional Trial Courts. (as amended by R.A.
No. 7691)

Section 35. Special jurisdiction in certain cases. In the absence of all the Regional Trial
Judges in a province or city, any Metropolitan Trial Judge, Municipal Trial Judge, Municipal
Circuit Trial Judge may hear and decide petitions for a writ of habeas corpus or applications for
bail in criminal cases in the province or city where the absent Regional Trial Judges sit.

Section 36. Summary procedures in special cases. In Metropolitan Trial Courts and Municipal
Trial Courts with at least two branches, the Supreme Court may designate one or more branches
thereof to try exclusively forcible entry and unlawful detainer cases, those involving violations of
traffic laws, rules and regulations, violations of the rental law, and such other cases requiring
summary disposition as the Supreme Court may determine. The Supreme Court shall adopt
special rules or procedures applicable to such cases in order to achieve an expeditious and
inexpensive determination thereof without regard to technical rules. Such simplified procedures
may provide that affidavits and counter-affidavits may be admitted in lieu of oral testimony and
that the periods for filing pleadings shall be non-extendible.

Section 37. Preliminary investigation. Judges of Metropolitan Trial Courts, except those in the
National Capital Region, of Municipal Trial Courts, and Municipal Circuit Trial Courts shall
have authority to conduct preliminary investigation of crimes alleged to have been committed
within their respective territorial jurisdictions which are cognizable by the Regional Trial
Courts.

The preliminary investigation shall be conducted in accordance with the procedure prescribed in
Section 1, paragraphs (a), (b), (c), and (d), of Presidential Decree No. 911: Provided,
however, That if after the preliminary investigation the Judge finds a prima facie case, he shall
forward the records of the case to the Provincial/City Fiscal for the filing of the corresponding
information with the proper court.

No warrant of arrest shall be issued by the Judge in connection with any criminal complaint filed
with him for preliminary investigation, unless after an examination in writing and under oath or
affirmation of the complainant and his witnesses, he finds that a probable cause exists.

27
Any warrant of arrest issued in accordance herewith may be served anywhere in the Philippines.

Section 38. Judgments and processes.

(1) All judgments determining the merits of cases shall be in writing, stating clearly the
facts and the law on which they were based, signed by the Judge and filed with the Clerk
of Court. Such judgment shall be appealable to the Regional Trial Courts in accordance
with the procedure now prescribed by law for appeals to the Court of First Instance, by
the provisions of this Act, and by such rules as the Supreme Court may hereafter
prescribe.

(2) All processes issued by the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts, in cases falling within their jurisdiction, may be served
anywhere in the Philippines without the necessity of certification by the Judge of the
Regional Trial Court.

JURISDICTION

SUPREME COURT (Civil Cases)

EXCLUSIVE ORIGINAL

1. Petition for certiorari, prohibition or mandamus against the:

a. Court of Appeals;

b. COMELEC;

c. Commission of Audit;

d. Sandiganbayan

CONCURRENT WITH THE RTC;

1. Cases affecting ambassadors, other public ministers and consuls.

CONCURRENT WITH THE COURT OF APPEALS;

1. Petition for certiorari, prohibition or mandamus against the RTC;

2. Petition for a Writ of Kalikasan.

28
CONCURRENT WITH THE RTC & COURT OF APPEALS

1. Petitions for Habeas Corpus;

2. Petitions for Quo Warranto;

3. Petitions for Certiorari, prohibition or mandamus against inferior court and other bodies.

CONCURRENT WITH THE RTC & COURT OF APPEALS & SANDIGAN BAYAN

1. Petitions for a Writ of Amparo;

2. Petitions for a Writ of Habeas Data.

APPELLATE JURISDICTION

1. By way of APPEAL BY CERTIORARI (Rule 45), against the:

a. Court of Appeals;

b. SandiganBayan;

c. RTC on pure question of law;

d. In cases involving the constitutionality or validity of a law or treaty, international

agreement or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance or regulation, legality of a tax, impost, assessment, toll or
penalty, jurisdiction of a lower court (Section. 5, Article VIII, Constitution)

e. CTA en banc.

COURT OF APPEALS (Civil Cases)

EXCLUSIVE ORIGINAL

1. Actions for annulment of the judgment of the RTC.

CONCURRENT WITH THE SUPREME COURT

29
 1. Petitions for certiorari, prohibition, or mandamus against the RTC;

2. Petitions for a Writ of Kalikasan;

3. Petitions for certiorari, prohibition, or mandamus against the NLRC (but according to St.
Martin Funeral Homes vs. CA, (G.R. No. 130886) case, the petition should be filed with
the CA instead of the SUPREME COURT.

CONCURRENT WITH THE SUPREME COURT & RTC

1. Petitions for Habeas Corpus;

2. Petitions for Quo Warranto;

3. Petitions for certiorari, prohibition or mandamus against inferior courts and other bodies;

CONCURRENT WITH THE SUPREME COURT & RTC & SANDIGANBAYAN

1. Petitions for a Writ of Amparo;

2. Petitions for a Writ of Habeas Data;

APPELLATE JURISDICTION

1. By way of ORDINARY APPEAL from the RTC and the FAMILY COURTS;

2. By way of PETITION FOR REVIEW from the RTC rendered in the exercise of its
appellate jurisdiction;

3. By way of PETITION FOR REVIEW from the decisions, resolutions, orders or awards
of the:

a. Civil service commission;

b. Office of the Ombudsman in administrative disciplinary cases;

c. Other bodies mentioned in Rule 43;

30
 4. EXCLUSIVE appellate jurisdiction over decisions of the MTCs in cadastral or land
registration cases pursuant to its delegated jurisdiction

REGIONAL TRIAL COURTS (Civil Cases)

EXCLUSIVE ORIGINAL JURISDICTION

1. The subject matter of which is not capable of pecuniary estimations;

The basic issue in an action incapable of pecuniary estimation is one other than the
recovery of money. In this kind of action, the money claim is merely incidental
(Singsong vs. Isabela Sawmill, 88 SCRA 623)

Note: Annulment of judgment of the RTC is also an action which is incapable of

pecuniary estimation but is cognizable by the CA by express mandate of BP 129. In
other words, all actions which are incapable of pecuniary estimation is cognizable by
the RTC except annulment of judgment of the RTC.

2. Involving title to or possession of real property or an interest therein, where the

assessed value of such property EXCEEDS P20, 000 (outside Metro Manila), or
EXCEEDS P50, 000 (Metro Manila);

3. The demand or claim of which EXCEEDS P300, 000 (outside Metro Manila) or
EXCEEDS P400, 000 (Metro Manila);

4. Actions in Admiralty or Maritime jurisdiction where the demand or claim EXCEEDS

P300, 000 (outside Metro Manila) or EXCEEDS P400, 000 (Metro Manila);

5. Matters of probate, testate or intestate, where the gross value of the estate
EXCEEDS P300, 000 (outside Metro Manila) or more than P400, 000 (Metro Manila);

6. Actions involving Personal Property valued at more than P300, 000 (outside Metro
Manila) or more than P400, 000 (Metro Manila);

7. Cases NOT falling within the jurisdiction of any court, tribunal, person or body
exercising judicial or quasi judicial functions.

8. Civil actions and special proceedings falling within the exclusive original jurisdiction of
Juvenile and Domestic Relations Court and of Court of Agrarian Relations as now
provided by law;

9. Under Sec. 5.2 of the Securities and Regulations Code to hear and decide:

31
 Devices or schemes employed by or any acts of the board of directors, business
associates, its officers or partnership, amounting to fraud and misrepresentation;

Intra-corporate controversies;

Controversies in the elections or appointments of directors, trustees, officers or

managers or corporations, partnerships or associations;

Petitions of corporations, partnerships or association to be declared in the state of

suspension of payments.

SPECIAL JURISDICTION

1. SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and
domestic relations cases, agrarian cases, urban land reform cases not falling within the
jurisdiction of any quasi judicial body and other special cases in the interest of justice.

CONCURRENT JURISDICTION WITH THE SUPREME COURT

1. Actions affecting ambassadors, public ministers and consuls.

CONCURRENT JURISDICTION WITH THE SC & CA

1. Petitions for Habeas Corpus;

2. Petitions for Quo Warranto;

3. Petitions for certiorari, prohibition or mandamus against inferior courts and other bodies.

CONCURRENT JURISDICTION WITH THE SC & CA & SANDIGAN BAYAN

1. Petitions for a Writ of Amparo;

2. Petitions for a Writ of Habeas Data;

APPELLATE JURISDICTION

32
 1. All cases decided by the LOWER COURTS in their respective territorial jurisdiction
except decisions of lower courts in the exercise of delegated jurisdiction.

MUNICIPAL TRIAL COURT (Civil Cases)

EXCLUSIVE ORIGINAL JURISDICTION

If the gross value, claim, or demand DOES NOT EXCEEDS P300, 000 (Outside Metro
Manila), or EXCEEDS P400, 000 (Manila):

1. Actions involving personal property;

2. Admiralty and maritime cases;

3. Probate proceedings (testate or intestate) depending on the gross value of the estate;

4. Demand for money;

If the ASSESSED VALUE or Interest in the Real Property DOES NOT EXCEEDS
P20, 000 (outside Metro Manila), or EXCEEDS P50, 000 (Metro Manila)

5. Actions involving title to or possession of real property, or any interest therein

depending on the assessed value.

6. Inclusion and exclusion of voters

7. Those covered by the Rules on Summary Procedure;

a. Forcible entry and Unlawful detainer

With jurisdiction to resolve issue of ownership to determine only the issue of possession;

Irrespective of the amount of damages or unpaid rentals sought to be recovered;

Where attorneys fees are awarded, the same shall NOT exceed P20,000.

b. Other civil cases, except probate proceedings, where the total amount of the
plaintiffs claim DOES NOT EXCEED P 100, 000 or DOES NOT EXCEED
P200, 000 in Metro Manila, exclusive of interest and cost.

33
Note: Exclusive of Interest, Damages, of whatever kind, Attorneys fees, Litigation Expenses,
and Cost (Code: IDALEC), the amount of which must be specifically alleged but the filing fees
thereon shall be paid.

Note: The exclusion of the term damages of whatever kind applies to cases where the
damages are merely incidental to or a consequence of the main cause of action. However, in
cases where the claim for damages is the main cause of action, or one of the causes of action, the
amount of such claim shall be considered in determining the jurisdiction of the court.

SPECIAL JURISDICTION

1. Petitions for Habeas Corpus, OR application for bail in criminal cases in the absence of
all RTC judges in the province or city.

DELEGATED JURISDICTION

1. May be delegated by the SC to hear cadastral or land registration cases where there is NO
controversy or opposition over the land or in case of contested lands, the value does NOT
exceed P100, 000.

FAMLY COURTS

ORIGINAL JURISDICTION

1. Petitions for guardianship, custody of children, habeas corpus involving children ( but the
SC and the CA have not been deprived of their original jurisdiction);

2. Petitions for adoption of children and the revocation thereof;

3. Complaints for annulment and declaration of nullity of marriage, matter relating to

marital status and property relations of husband and wife or those living together under
different status or agreement, and petitions for dissolution of conjugal partnership of
gains;

4. Support and/or acknowledgment;

5. Summary judicial proceedings under the Family Code;

34
 6. Petition for declaration of status of children, voluntary or involuntary commitment of
children, matter relating to parental authority and other cases cognizable under PD 603,
E0 56 (SERIES OF 1996) and other related laws.

Under the Family Code, the family home is deemed constituted, hence, no need for its
constitution.

7. Special Provisional Remedies:

a. In cases of violence among the family members living in the same domicile or
household, the Family Court may issue a restraining order against the accused or
defendant upon verified application by the complaint or the victim for relief from
abuse.

b. The court may order the temporary custody of children in all civil actions for their
custody, support pendente lite, including deduction from the salary, and use of
conjugal home and other properties in all civil actions for support.

RULES OF COURT

Now we go to the Rules of Court. I suggest that you read BP 129, and relate these
several sections of BP 129 with the Judiciary Act of 1948 when you study civil actions. You have
concentrated too much on your textbooks. There are many provisions of BP 129 and the
Judiciary Act of 1948, which are not really touched by our textbooks. Although they are self
explanatory, they should also be read. Anyway these are very short. They are not lengthy.

Rules of Court: Substantive and Procedural Provisions

The Rules of Court on civil actions, the subject of this lecture, is Part one of the Rules of
Court, which is a product of the Supreme Court. The Supreme Court is given the authority to
promulgate rules on pleadings, practice and procedure. These Rules of Court are designed to be
procedural in nature although they are purely procedural in nature, there are some provisions
in the Rules of Court which acts upon substantive rights of persons, An example is in Criminal
Procedure, there is a rule dedicated only to the rights of the accused. It does not mean that the
Rules of Court is substantive simply because there are some provisions in the Rules of Court
which covers rights of a person. In the same way that we cannot consider the Civil Code as
procedural, simply because there are provisions in the Civil Code which refers to the issuance
35
for instance injunction, whereas the concept of injunction are pure procedural. But even if we
find them in the Civil Code, it does not mean to say that the Civil Code is also a procedural law.
The civil code notwithstanding these provisions on some procedural principles remain to be
substantive in character. So in the same way, in the Rules of Court they contain provisions
pertaining to the rights of a person, but it does not mean that the Rules of Court have now
been converted to substantive law. It remains to be purely procedural.

Summary procedure in civil cases vs. summary procedure in criminal cases

Summary procedure covers both civil and criminal cases. The principal distinction
between the summary procedure applicable to civil cases, and the summary procedure
applicable to criminal cases, is that in a criminal case there is a right to cross examine the
witnesses. So, its not purely summary in other words. In civil cases the parties and even the
court are not given the privilege to cross examine the witnesses. All that the parties need to do
in a civil case governed by summary procedure is to submit the affidavits of witnesses and the
respective position papers. And thereafter, the case is submitted for decision. But in a criminal
case, the testimony of the witnesses are contained in an affidavit, but the affidavits will take
the place of their testimony on direct examination, and then the court will require these
witnesses to attend a trial for the purpose of cross examination of these witnesses. In all other
aspects, there is no difference between the summary procedure that covers civil cases and
criminal cases.

In summary procedure, there is also a preliminary conference which is akin to the pre
trial in ordinary procedure. It is also mandatory. But the Supreme court has ruled that if the trial
court fails to conduct a preliminary conference, the proceedings taken thereafter are not
necessarily void, although the holding of a preliminary conference is mandatory. A party may be
considered to have waived this mandatory preliminary conference if he fails to object to its

36
absence or he fails to object to the failure of the trial court to conduct a preliminary
conference.

RULE 1

GENERAL PROVISIONS

Rule 1 Section 1: Title of the Rules

These Rules shall be known and cited as the Rules of court.

COMMENT:

The rules of court DO NOT HAVE retroactive effect. They can, however, be made applicable to
cases pending at the time of their passage and therefore are retroactive in that sense.

The rule-making power of the Supreme Court has the following limitations:

1. Simplified and inexpensive procedure for the speedy disposition of cases;

2. Uniform for all courts of the same grade; and

3. Shall not diminish, increase or modify substantive rights (Sec. 5(5) Art. 8 1987
Constitution)

The Supreme Court has the constitutional power to promulgate rules concerning
pleading, practice and procedure.

The Supreme Court has the power to amend, repeal or even establish new rules for a
more simplified and inexpensive process, and the speedy disposition of cases. The
constitutional power of the SC to promulgate rules of practice and procedure and to
amend or repeal the same necessarily carries with it the power to overturn judicial
precedents on points of remedial law through the amendment of the Rules of Court.

xxx ________________________________________ xxx _________________________________xxx

Rule 1 Section 2: In what courts applicable

These rules shall apply in all the courts, except as otherwise provided by the Supreme
Court.

COMMENT:

37
 These Rules shall apply in all the courts, except as otherwise provided by the Supreme
Court.

Rule 1 Section 3: Cases Governed

These Rules shall govern the procedure to be observed in actions, civil or criminal, and
special proceedings.

(a) A civil action is one by which a party sues another for the enforcement or protection of
a right, or the prevention or redress of a wrong.

A civil action may either be ordinary or special. Both are governed by the rules for
ordinary civil actions, subject to the specific rules prescribed for a special civil action;

(b) A criminal action is one by which the State prosecutes a person for an act or omission
punishable by law;

(c) A special proceeding is a remedy by which a party seeks to establish a status, a right, or
a particular fact.

COMMENT:

Action - An ordinary suit in a court of justice: Claim A right possessed by one against another

Action One party prosecutes another for the enforcement or protection of a right or the
prevention or redress of a wrong: Claim The moment said claim is filed before a court, the
claim is converted into an action or suit.

Applicability

An action is the legal and formal demand of ones right from another person made and insisted
upon in a court of justice.

1. Civil Action one by which a party sues another for the enforcement or protection of a
right or the prevention or redress of a wrong.

A civil action may be either be: a.) Ordinary; or b.) Special.

BOTH are governed by the rules for ordinary civil actions, subject to the specific rules
prescribed for a special civil action.

2. Criminal Action one by which the State prosecutes a person for an act or omission
punishable by law.

38
 3. Special Proceedings a remedy by which a party seeks to establish a status, a right or a
particular fact.

Classification of Action

A. As to the nature

Ordinary Civil Action

1. Governed ordinary Rules

2. Formal demand of ones legal rights in a court of justice in the manner prescribed by
the law.

Special Civil Action

1. Also governed by ordinary rules but SUBJECT to specific rules prescribed (Rules 62-
71).

2. Special features not found in ordinary civil actions.

B. As to the Object

Action in Rem

1. Directed against the THING itself. The defendant is sought to be held liable.

2. Jurisdiction over the person is NOT required.

3. A proceeding to determine the state or condition of a thing.

4. Judgment is binding on the WHOLE world.

5. Example: Probate proceeding; cadastral proceeding.

Action in Personam

1. Directed against PARTICULAR PERSON.

2. Jurisdiction over the person of the defendant is required.

3. An action to impose a responsibility or liability upon a person directly.

4. Judgment is binding only upon parties impleaded or their successors in interest.

5. Example: Action for specific performance; action for breach of contract.

Action Quasi in Rem

39
 1. Directed against PARTICULAR PERSON.

2. Jurisdiction over the person of the defendant is NOT required as long as jurisdiction
over the RES is acquired.

3. A proceeding to subject the interest of a named defendant over a particular

property to an obligation or lien burdening it.

4. Judgment is binding upon PARTICULAR PERSON.

5. Example: Action for partition; action to foreclose real estate mortgage.

The distinction is important in determining the following:

1. Whether or not jurisdiction over the person of the defendant is required;

2. To determine the type of summons to be employed; and

3. To determine upon whom judgment is binding.

C. As to the cause

Real Action

1. Ownership or possession of real property is involved;

2. Founded on privity of real estate;

3. It is local because its venue depends upon the location of the property in the litigation.

4. Example: Accion reinvindicatoria

Personal Action

1. Personal property is sought to be recovered or where damages for breach of contract are
sought.

2. Founded on privity of contract;

3. It is transitory because its venue depends upon the residence of the plaintiff or the
defendant at the option of the plaintiff.

4. Example: Action for a sum of money.

Mixed Action

1. Both real and personal properties are involved.

40
 2. Founded on both;

3. The rules on venue of real actions shall govern;

4. Example: Accion publiciana with a claim for damages.

The distinction is significant in determining the VENUE of an action.

Note: An action could be real as to the cause and in personam as to the object (e.g. action to
recover a piece of land). An action could also be personal as to the cause and in rem as to object
(e.g. action for annulment of marriage).

D. As to the place of filing

Local Action

1. Must be brought in a particular place where the subject property or a portion thereof
is located, unless there is an agreement to the contrary. (Section 4, Rule 4) e.g. Action
to recover real property.

Transitory Action

1. Dependent on the place where a party resides regardless of where the cause of action
arose subject to Section 4, Rule 4. E.g. action to recover sum of money.

Note: If the action is founded on privity of contract between the parties, then the action whether
debt or covenant, is TRANSITORY. But if there is no privity of contract and the action is
founded on privity of estate only, such as a covenant that runs with the land in the hands of the
remote grantees, then the action is LOCAL and must be brought in the place wherein the land
lies (Paper Industries Corporation of the Phils. Vs. Samson, G.R. No. L-30175, November 28,
1975)

Actions incapable of Pecuniary Estimation

An action CAPABLE of pecuniary estimation is one wherein the action is brought primarily for
the recovery of a sum of money; and the amount of the claim shall determine where the
jurisdiction lies.

41
An action INCAPABLE of pecuniary estimation is one wherein the basic issue is something
other than the right to recover sum of money, or where the money claim is purely incidental to,
or a consequence of, the principal relief sought; and are cognizable exclusively by Regional Trial
Courts (Davao Light and Power Co. Inc. vs. Hon. Judge of the RTC Davao City, BR. 8, G.R. No.
147058, March 10, 2006)

Examples: Specific performance; Rescission; Support; Foreclosure of Mortgage; Injunction etc.

xxx ________________________________________ xxx _________________________________xxx

Rule 1 Section 4: In what cases not applicable

These rules shall not apply to election cases, land registration, cadastral, naturalization
and insolvency proceedings, and other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient.

Rule 1 Section 5: Commencement of Action

A civil action is commenced by the filing of the original complaint in court. If an

additional defendant is impleaded in a later pleading, the action is commenced with regard to
him on the date of the filing of such later pleading, irrespective of whether the motion for its
admission, if necessary, is denied by the court.

Rule 1 Section 6: Construction

These Rules shall be liberally construed in order to promote their objective of securing a
just, speedy and inexpensive disposition of every action and proceeding.

xxx ________________________________________ xxx _________________________________xxx

RULE 3

PARTIES TO CIVIL ACTIONS

42
Rule 3 Section 1: Who may be parties; plaintiff and defendant

Only natural or juridical persons, or entities authorized by law may be parties in a civil
action. The tem plaintiff may refer to the claiming party, the counter claimant, the cross-
claimant, or the third (fourth, etc)-party plaintiff. The term defendant may refer to the
original defending party, the defendant in a counterclaim, the cross-defendant, or the third
(fourth, etc)-party defendant.

COMMENT:

Requirement for a person to be a party to a civil action:

1. He must be either:

a. A natural person
b. A juridical person
c. An entity authorized by law (e.g. corporations by estoppel, partnership by estoppel-
Juan Dela Cruz vs. Pedro Santos, et al doing business under the name of XYZ
Company)

2. He must have the legal capacity to sue;

3. He must be the real party-in-interest.

One need not be a natural or a juridical person to be a party to a civil action. As long as an entity
is authorized by law to be a party, such entity may sue, be sued or both (Riano, 2007, p. 179)

Note: Entities authorized by law to be parties to a suit include:

1. The estate of a deceased person;

2. A political party incorporated under Act 1459 (Corp Code) and;

3. A registered labor union (Sec. 243, PD 442, Labor Code);

4. A contract of partnership having a capital of three thousand pesos (P3,000) or more but
which fails to comply with the registration requirements is nevertheless liable as a
partnership to third person. (Art. 1772, Civil Code)

5. As to properties of the Roman Catholic Church, the Archbishop of the diocese to which
they belong may be a party (Versoza vs. Fernandez, G.R. No. L-25254, Nov. 22, 1926)

6. A dissolved corporation may prosecute and defend suits by or against it provided that the
suits: a.) occur within three (3) years after dissolution; and b.) the suits are in connection
with the settlement and closure of its affairs (Sec. 122, Corp. Code)
43
Remedy when a party is not authorized to be a party:

1. A motion to dismiss may be filed on the ground that the plaintiff has NO legal capacity to
sue;

2. Where it is the defendant who is not authorized, the complaint may be dismissed on the
ground that the pleading states no cause of action or failure to state a cause of action;

3. If the plaintiff has capacity to sue but not the real party in interest, the ground for
dismissal is a failure to state a cause of action (Riano, 2009 Ed. P. 213)

Lack of Legal Capacity to Sue

1. It refers to a plaintiffs general disability to sue, such as on account of minority, insanity,

incompetence, lack of juridical personality or any other general disqualifications of a
party;

2. It can be a ground for a motion to dismiss on the ground of lack of legal capacity to sue.

Lack of Legal Personality to Sue

1. The plaintiff is not the real party in interest.

2. In can be used as a ground for a motion to dismiss based on the fact that the complaint,
on the face thereof, states no cause of action.

Plaintiff one having an interest in the matter of the action or in obtaining the relief demanded.
The term may refer to the claiming party, the counter-claimant, the cross-claimant, or the third
(fourth, etc)-party plaintiff.

Defendant one claiming an interest in the controversy or the subject thereof adverse to the
plaintiff. The term may also include:

1. An unwilling co-plaintiff or one who should be joined as plaintiff but refuses to give his
consent thereto (Section 10, Rule 3)

2. The original plaintiff becoming a defendant to original defendants counterclaim; and

3. One necessary to a complete determination or settlement of the questions involved

therein.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 2: Parties in interest

44
 A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real
party in interest.

COMMENT:

Real Party in interest the party who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit.

Note: To be a real party-in-interest, the interest must be real, which is a present substantial
interest as distinguished from a mere expectancy or a future, contingent subordinate or
consequential interest. It is an interest that is material and direct, as distinguished from a mere
incidental interest in the question (Samaniego vs. Aguila, 334 SCRA 438)

In Oposa vs. Factoran (GR No. 101083, 1993), minors represented by their parents were held as
real parties in interest to file an action to annul timber licenses issued by the state under the
following principles:

a. Inter-generational responsibility;
b. Inter-generational justice;
c. The right of the future Filipinos to a balanced and healthful ecology; and
d. Minors represent themselves and the generation to come.

The Rules of Court requires that an action must be brought in the name but not necessarily by the
real party-in-interest. In fact, the practice is for an attorney-in-fact to bring the action in the name
of the plaintiff (Tuason vs. Bolanos, G.R. No. L-25894, Jan. 30 1971)

Reason: To know the real party in interest.

Only parties to a contract may sue. However, a beneficiary of a stipulation pour autrui may
demand its fulfillment (Art. 1311, Civil Code)

Locus Standi right of appearance in a court of justice on a given question.

Classification of Parties in interest

1. Indispensable Parties those without whom no final determination can be had of an

action. A joinder of an indispensable party is MANDATORY.

- Must be joined under any and all conditions, their presence being a condition sine qua
non for the exercise of judicial power.

- No valid judgment if indispensable party is not joined.

45
 - They are those with such an interest that a final decree would necessarily affect either
rights so that the court cannot proceed without their presence.

2. Necessary Parties those who are not indispensable but ought to be joined as parties if
complete relief to be accorded as to those already parties, or for a complete determination
or settlement of the claim subject of the action.

- Should be joined whenever possible; the action can proceed even in their absence;

- The case may be determined in court by the judgment therein will not resolve the
entire controversy if a necessary party is not joined.

- They are those whose presence is necessary to adjudicate the whole controversy but
whose interest are so far separable that a final decree can be made in their absence
without affecting them.

3. Representative Parties those acting in fiduciary capacity such as trustees, guardians,

executors, or administrators. The beneficiary shall be included in the title of the case and
shall be deemed to be the real party in interest.

4. Pro forma parties those who are required to be joined as co-parties in suits by or
against another party as may be provided by the applicable substantive law or procedural
rule such as in the case of spouses under Section 4.

5. Quasi Parties those in whose behalf a class or representative suit is brought.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 3: Representative as parties

Where the action is allowed to be prosecuted or defended by a representative or

someone acting in fiduciary capacity, the beneficiary shall be included in the title of the case
and shall be deemed to be real party in interest. A representative may be a trustee of an
express trust, a guardian, an executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue
or be sued without joining the principal except when the contract involves things belonging to
the principal.

COMMENT:

A representative may be a trustee of an express trust, a guardian, an executor or

administrator or a party authorized by law or the Rules of Court.

46
 Where the action is allowed to be prosecuted or defended by a representative or someone
acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be
deemed to be the real party in interest.

An agent may sue or be sued without joining his principal except when the contract
involves things belonging to the principal.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 4: Spouses as parties

Husband and wife shall sue or be sued jointly, except as provided by law.

COMMENT:

General Rule: Husband and wife shall sue or be sued jointly

Exceptions: (under Family Code)

1. A spouse without just cause abandons the other or fails to comply with his or her
obligations to the family with respect to the marital, parental or property relations.

2. A spouse of age, mortgages, encumbers, alienates or otherwise disposes of his or her

exclusive property.

3. The regime of separation of property governs the property relations of the spouses (Feria,
2001, p. 231)

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 5: Minor or incompetent persons

A minor or a person alleged to be incompetent, may sue or be sued, with assistance of

his father, mother, guardian, or if he has none, a guardian ad litem.

COMMENT:

Under the present rules, a suit may be brought by or against a minor or incompetent but with the
assistance of his parents or his guardian.

A person NEED NOT be judicially declared incompetent, it being sufficient that his
incompetency be ALLEGED in the corresponding pleadings.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 6: Permissive joinder of parties

47
 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.

COMMENT:

PERMISSIVE JOINDER The rule on permissive joinder of parties is that they can be joined
in a single complaint or may themselves maintain or be sued in separate suits. Normally, joinder
of parties is permissive.

Requisites:

1. Right to relief arises out of the same transaction or series of transactions;

2. There is a question of law or fact common to all the plaintiffs or defendants; and

3. Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction
and venue.

Series of Transactions pertains to transactions connected with the same subject matter of the
suit.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 7: Compulsory joinder of indispensible parties

Parties in interest without whom no final determination can be had of an action shall be
joined either as plaintiffs or defendants.

COMMENT:

The indispensable party must always be included in the suit. The presence of all indispensable
parties is a condition sine qua non for the exercise of judicial power. In the absence of such
party, the court should order that the indispensable party be included. It shall not order the
dismissal of the suit outright.

Where the indispensable party is not impleaded or is not before the court, an outright dismissal is
not the remedy. Rather, the court shall order such party to be impleaded. It is when the order of
the court to implead an indispensable party goes unheeded may the case be dismissed.

48
The absence of an indispensable party renders all subsequent actuations of the court null and
void for want of authority to act not only as to the absent parties but even as to those present.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 8 Necessary party

A necessary party is one who is not indispensable but who ought to be joined as a party
if complete relief is to be accorded as to those already parties, or for complete determination
or settlement of the claim subject of the action.

COMMENT:

Also called PROPER PARTIES, they are those whose presence is necessary to adjudicate
the whole controversy, but those interest are so far separable that a final decree can be made in
their absence without affecting them (Quisumbing vs. CA, G.R. No. 93335, Sept. 13, 1990)

The non-inclusion of a necessary party does not prevent the court from proceeding with the
action and the judgment therein shall be without prejudice to the rights of such necessary party
not impleaded.

Joint Debtor an indispensable party in a suit against him but a necessary party in a suit against
his co-debtor.

Solidary Debtor In a suit brought by a creditor against one solidary debtor, the other solidary
debtor is NEITHER indispensable nor a necessary party.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 9: Non-joinder of necessary parties to be pleaded

Whenever in any pleading in which a claim is asserted a necessary party is not joined,
the pleader shall set forth his name, if known, and shall state why he is omitted. Should the
court find the reason for the omission unmeritorious, it may order the inclusion of the omitted
necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in
the action, and the judgment rendered therein shall be without prejudice to the rights of such
necessary party.

COMMENT:
49
Duty of a pleader whenever a necessary party is not joined or impleaded:

1. State the name of the necessary party, if known; and

2. State why said necessary party is omitted in the pleading.

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 by ordering plaintiff to
file an amended complaint impleading the necessary party therein as co-defendant.

Note: The failure to comply with the courts order to include or join a necessary party without
justifiable cause shall be deemed a waiver of the claim against such party.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 10: Unwilling co-plaintiff

If the consent of any party who should be joined as plaintiff can not be obtained, he may
be made a defendant and the reason therefor shall be stated in the complaint.

COMMENT:

If the consent of any party who should be joined as plaintiff cannot be obtained, he may be made
a defendant and the reason therefore shall be stated in the complaint.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 11: Misjoinder and non-joinder of parties

Neither misjoinder nor non-joinder of parties is ground for dismissal of an action. Parties
may be dropped or added by order of the court on motion of any party or on its own initiative
at any stage of the action and on such terms as are just. Any claim against a misjoined party
may be severed and proceeded with separately.

COMMENT:

A party is MISJOINED when he is made a party to the action although he should not be
impleaded.

A party is NOT JOINED when he is supposed to be joined but is not impleaded in the action.
(Riano, 2007, p. 195)

Neither misjoinder nor non joinder of parties is a ground for dismissal of the action.

50
Exception: Section 7 Rule 3 in relation to the disobedience to the rules or order of court for the
inclusion of an indispensable party.

Note: objections to defects in parties should be made at the earliest opportunity, i.e. the moment
such defect becomes apparent, by a MOTION TO STRIKE THE NAMES OF THE PARTIES
impleaded. Objections to misjoinder cannot be raised for the first time on appeal.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 12: Class Suit

When the subject matter of the controversy is one of common or general interest to
many persons so numerous that it is impracticable to join all as parties, a number of them
which the court finds to be sufficiently numerous and representative as to fully protect the
interest of all concerned may sue or defend for the benefit of all. Any party in interest shall
have the right to intervene to protect his individual interest.

COMMENT:

CLASS SUIT is an action where one or more may sue for the benefit of all, implying that if
the parties are numerous and it is impracticable to bring them to court, one or more may sue for
their benefit.

Note: An action does not become a class suit merely because it is designated as such in the
pleadings. Whether the suit is or is not a class suit depends upon the attending facts.

Requisites of a Class suit:

1. Subject matter of the controversy is one of COMMON or GENERAL INTEREST to

many persons;

2. The persons are so NUMEROUS that it is impracticable to join them all as parties;

3. Parties bringing the class suit are SUFFICIENT IN NUMBER AND

REPRESENTATIVE of the class and can fully protect the interests of all concerned;

4. The representative sues or defends for the benefit of all.

Note: A taxpayers suit or a stockholders derivative suit is in the nature of a class suit, although
subject to the other requisites of the corresponding governing law especially on the issue of locus
standi (Regalado p. 97)

Any party in interest shall have the right to intervene to protect his individual interest.
(this is an instance when a person may intervene as a matter of right)

51
Class suit There is one single cause of action pertaining to numerous persons.

Permissive Joinder of Parties there are multiple causes of action separately belonging to
several persons.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 13: Alternative defendants

Where the plaintiff is uncertain against who of several persons he is entitled to relief, he
may join any or all of them as defendants in the alternative, although a right to relief against
one may be inconsistent with a right of relief against the other.

COMMENT:

Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join
any OR all of them in the alternative, although a right to relief against one may be inconsistent
with a right to relief against the other.

Example: Assume Mr. X, a pedestrian was injured in the collision of two vehicles. He suffered
injuries but does not know with certainty which vehicle caused the mishap. What should Mr. X
do if he wants to sue? He should sue the vehicle drivers or owners in the alternative.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 14: Unknown identity or name of defendant

Whenever the identity or name of a defendant is unknown, he may be sued as the

unknown owner, heir, devisee, or by such other designation as the case may require; when his
identity or true name is discovered, the pleading must be amended accordingly.

COMMENT:

Requisites:

1. There is a defendant;
2. His identity or name is unknown;
3. Fictitious name may be used because of ignorance of defendants true name and said
ignorance is alleged in the complaint.
4. Identifying description may be used: sued as unknown owner, heir, devisee, or other
designation;
5. Amendment to the pleading when identity or true name is discovered; and
6. Defendant is the defendant being sued, not a mere additional defendant.

52
Service of summons upon a defendant whose identity is unknown may be made by publication in
a newspaper of general circulation in accordance with Section 14 of Rule 14.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 15: Entity without juridical personality as defendant

When two or more persons not organized as an entity with juridical personality enter
into a transactions, they may be sued under the name by which they are generally or commonly
known.

If the answer of such defendant, the names and addresses of the persons composing
said entity must all be revealed.

COMMENT:

Requisites:

1. There are two or more persons not organized as a juridical entity;

2. They enter into a transaction; and

3. A wrong or delict is committed against person in the course of such transaction.

Persons associated in an entity without juridical personality may be sued under the name by
which they are generally or commonly known, but they cannot sue under such name. In the
answer of such defendant, the names and addresses of the persons composing said entity must all
be revealed.

The service of summons may be effected upon all the defendants by serving upon any of them,
or upon the person in charge of the office or place of business maintained under such name.
(Section 8 Rule 14)

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 16: Death of party; duty of counsel

Whenever a party to a pending action dies, and the claim is not thereby extinguished, it
shall be the duty of his counsel to inform the court within thirty (30) days after such death of
the fact thereof, and to give the name and address of his legal representative or
representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary
action.

53
 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 minors.

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.

COMMENT:

Instances where substitution of parties is proper

A. SECTION 16. Death of party; Duty of Counsel

Where the claim is not extinguished by the death of the litigant, it shall be the duty if his
counsel to inform the court of such fact within thirty (30) days from such death and to give
the name and address of legal representative.

In such case, the heirs may be substituted for the deceased or if no legal representative is
named, the court will order the opposing party to procure the appointment of an executor or
administrator for the estate of the deceased. In case of minor heirs, the court may appoint a
guardian ad litem for them.

This provision applies where the claim is NOT extinguished as in cases involving property
and property rights such as:

1. Recovery of real and personal property against the estate;

2. Enforcement of liens on such properties; or

3. Recovery for an injury to person or property by reason of tort or delict committed by the
deceased.

In this case, the heirs will be substituted for the deceased OR if no legal representative is
named then the court will order the opposing party to procure the appointment of an
executor or administrator for the estate of the deceased. In case of minor heirs, the court
may appoint a guardian ad litem for them.

54
 The substitute defendant need not be summoned. The ORDER OF SUBSTITUTION
shall be served upon the parties substituted for the court to acquire jurisdiction over the
substitute party.

If there is notice of death, the court should await appointment of legal representative;
otherwise subsequent proceedings are void.

Note: If the action does not survive (like purely personal actions of support, annulment of
marriage and legal separation), the court shall simply dismiss the case. Substitution will not be
required (Riano, 2007, p.200)

Rules in cases where the action survives the death of a party

1. Contractual Money Claim

a. Plaintiff dies the case will continue and the heirs or legal representatives will
proceed.

b. Defendant dies a.) Before entry of final judgment (apply section 20, rule 3). b.)
After entry of final judgment but before execution - (apply section 5, rule 86) cannot
move to execute. c.) after levy or execution but before auction sale apply section 7
(c), rule 39.

2. Non-contractual money claim These claims are those mentioned in Section 7, Rule 86
and section 1, Rule 87. Apply Substitution.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 17: Death or separation of a party who is a public officer

When a public officer is a party in an action in his official capacity and during its
pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and
maintained by or against his successor if, within thirty (30) days after the successor takes office
or such time as may be granted by the court, it is satisfactorily shown to the court by any party
that there is substantial need for continuing or maintaining it and that the successor adopts or
continues or threatens to adopt or continue the action of his predecessor. Before a substitution
is made, the party or officer to be affected, unless expressly assenting thereto, shall give
reasonable notice of the application therefor and accorded an opportunity to be heard.

COMMENT:

Requisites:

1. Public officer is a PARTY TO AN ACTION in his official capacity;

55
 2. During pendency of the action, he either dies, resigns, or otherwise ceases to hold office;

3. It is satisfactorily shown to the court by any party, within thirty (30) days after the
successor takes office, that there is a SUBSTANTIAL NEED for continuing or
maintaining the action;

4. That the successor ADOPTS FOR CONTINUES OR THREATENS TO ADOPT OR

CONTINUE the action of his predecessor;

5. The party or officer affected has been given REASONABLE NOTICE of the application
therefor and accorded an opportunity to be heard.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 18: Incompetency or incapacity

If a party becomes incompetent or incapacitated, the court, upon motion with notice,
may allow the action to be continued by or against the incompetent or incapacitated person
assisted by his legal guardian or guardian ad litem.

COMMENT:

In case a party becomes incompetent or incapacitated, the action survives and may be continued
by or against the incompetent or incapacitated assisted by his legal guardian or guardian ad litem,
who is his legal representative.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 19: Transfer of interest

In case of any transfer of interest, the action may be continued by or against the original
party, unless the court upon motion directs the person to whom the interest is transferred to
be substituted in the action or joined with the original party.

COMMENT:

The transfer of interest that is referred to in this section is a transfer that occurs DURING THE
PENDENCY of the action. The transferor would no longer be the real party in interest if the
transfer is made before the commencement of the suit.

General Rule: The rule does not consider the transferee an indispensible party. Hence, the
action may proceed without the need to implead him.

56
Exception: When the substitution by or joinder of the transferee is ordered by court.

A transferee pendente lite:

1. Stands in exactly the same position as its predecessor-in-interest, the original defendant;
and;

2. Bound by the proceedings had in the case before the property was transferred to it, even
if not formally included as a defendant.

The case will be dismissed if the interest of plaintiff is transferred to defendant UNLESS there
are several plaintiffs, in which case, the remaining plaintiffs can proceed with their own cause of
action.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 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.

COMMENT:

Requisites:

1. The action must primarily be for recovery of money, debt, or interest thereon;

2. The claim, subject of the action, arose from contract, express or implied; and

3. Defendant dies before the entry of final judgment in the court in which the action was
pending.

Note: Under this section, the death of the defendant will not result in the dismissal of the action.
The deceased shall be substituted by his legal representatives in the manner provided for in Sec.
16 of Rule 3 and the action continues until the entry of final judgment.

However, execution shall not issue is favor of the winning party. The final judgment should be
filed as a claim against the estate of the decedent without need of proving the claim.

xxx ________________________________________ xxx _________________________________xxx

57
Rule 3 Section 21: Indigent Party

A party may be authorized to litigate his action, claim or defense as an indigent if the
court, upon ex parte application and hearing, is satisfied that the party is one who has no
money or property sufficient and available for food, shelter and basic necessities for himself
and his family.

Such authority shall include an exemption from payment of docket and other lawful
fees, and of transcripts of stenographic notes which the court may order to be furnished him.
The amount of the docket and other lawful fees which the indigent was exempted from paying
shall be a lien on any judgment rendered in the case favorable to the indigent, unless the court
otherwise provides.

Any adverse party may contest the grant of such authority at any time before judgment
is rendered by the trial court. If the court should determine after hearing that the party
declared as an indigent is in fact a person with sufficient income or property, the proper docket
and other lawful fees shall be assessed and collected by the clerk of court. If payment is not
made within the time fixed by the court, execution shall issue or the payment thereof, without
prejudice to such other sanctions as the court may impose.

COMMENT:

INDIGENT is one who has no money or property sufficient and available for food, shelter,
and basic necessities. He need not be a pauper to entitle him to litigate in forma pauperis.

While the authority to litigate as an indigent party may be granted upon an ex parte application
and hearing, it may be contested by the adverse party at any time before judgment is rendered.

If one is authorized to litigate as an indigent, such authority shall include:

1. An exemption from the payment of docket fees; and

2. An exemption from the payment of transcript of stenographic notes.

Note: A certificate of indigency must be attached to the pleadings issued either by the Barangay
in which the party is a resident or the DSWD.

xxx ________________________________________ xxx _________________________________xxx

Rule 3 Section 22: Notice of Solicitor General

58
 In any action involving the validity of any treaty, law, ordinance, executive order,
presidential decree, rules or regulations, the court, in its discretion, may require the
appearance of the Solicitor General who may be heard in person or through a representative
duly designated by him.

xxx ________________________________________ xxx _________________________________xxx

RULE 4

VENUE OF ACTIONS

COMMENT:

VENUE is the place of trial or geographical location in which an action or proceeding should
be brought.

Distinction Venue from Jurisdiction

Venue

1. Place where the action is instituted;

2. May be waived;
3. Procedural;
4. May be changed by the written agreement of the parties;
5. Not a ground for a motu proprio dismissal except in summary procedure.

Jurisdiction

1. Power of the court to heard and decide a case;

2. Jurisdiction over the subject matter and over the nature of the action is conferred by law
and cannot be waived;
3. Substantive;
4. Cannot be the subject of the agreement of the parties;
5. Ground for motu proprio dismissal.
Requisites for venue agreement to be valid:

1. In writing; and
2. Executed by the parties before the filing of the action;
3. There must be exclusivity as to the selection of the venue

The mere stipulation on the venue of an action, however, is not enough to preclude parties from
bringing a case in other venue. In the absence of restrictive words (e.g. only solely, exclusively
in this court, in no other court save, particularly, nowhere else but/except), the stipulation should
59
be deemed as merely an agreement on an additional forum, not as limiting venue. If the language
is restrictive, the suit may be filed only the place agreed upon by the parties.

When the stipulation as to venue in a passenger ticket of a vessel would be contrary to public
policy of making courts accessible to all who may have need of their service, the stipulation is
void and unenforceable. (Sweet Lines vs. Teves, G.R. No. 28324, May 19, 1972)

Note: When the action is no longer based on the agreement but ON THE TORTIOUS ACT of
sending collection telegrams despite the fact that the obligation had already been paid, venue is
no longer based on the written stipulation but at the ELECTION OF THE PLAINTIFF as fixed
by law. (Herrera 2007, vol. 1, p.636)

Rule 4 Section 1: Venue of real actions

Actions affecting title to or possession of real property, or interest therein, shall be

commenced and tried in the proper court which has jurisdiction over the area wherein the real
property involved, or a portion thereof, is situated.

Forcible entry and detainer actions shall be commenced and tried in the Municipal trial
court of the municipality or city wherein the real property is involved, or portion thereof, is
situated.

COMMENT:

A REAL ACTION is local. The venue is the place where the real property or any portion thereof
is located.

If property is located at the boundaries of two places; File case in either place at the
option of the plaintiff.

When the case involves two properties located in two different places:

1. If the properties are the object of the same transaction, file it in any of the two places;
and

2. If they are the subjects of two distinct transactions, separate actions should be filed in
each place unless properly joined.

xxx ________________________________________ xxx _________________________________xxx

Rule 4 Section 2: Venue of personal actions

60
 All other actions may be commenced and tried where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the
case of a non-resident defendant where he may be found, at the election of the plaintiff.

COMMENT:

Venue of Personal Actions

A personal action is transitory. It is filed:

1. Where the PLAINTIFF or any of the principal plaintiffs resides;

2. Where the DEFENDANT or any of the principal defendants resides; or

3. In case of a NON-RESIDENT DEFENDANT, the action may be brought in the place

where he may be found.

Note: All at the ELECTION of the Plaintiff.

Residence should be viewed or understood in its popular sense, meaning the personal, actual or
physical habitation of a person, actual residence or place of abode (Raymond vs. CA G.R. No.
80380, Sept. 28, 1988)

Nominal Party one which is included in a lawsuit because of his technical connection with the
matter of dispute but with no right to recover (i.e. sheriff or trustee holding title to a real
property).

Means of Waiving Venue:

1. Failure to object via motion to dismiss;

2. Affirmative relief sought in the court where the case is filed;
3. Affirmative defense in an answer;
4. Voluntary submission to the court where the case is filed;
5. Laches
xxx ________________________________________ xxx _________________________________xxx

Rule 4 Section 3: Venue of actions against nonresidents

If any of the defendants does not reside and is not found in the Philippines, and the
action affects the personal status of the plaintiff, or any property of said defendant located in
the Philippines, the action may be commenced and tried in the court of the place where the
plaintiff resides, or where the property or any portion thereof is situated or found.

COMMENT:

61
 1. Non-resident found in the Philippines

a. For personal actions where the plaintiff resides; and

b. For real actions where the property is located;

2. Non-resident not found in the Philippines An action may be filed only when the case
involves:

a. Personal status of plaintiff Venue: where the plaintiff resides; and

b. Any property of said defendant located in the Philippines Venue: where the
property or any portion thereof is situated or found.

The Supreme Court has the power to order an change of venue to prevent a miscarriage of
justice.

Note: The court may NOT motu proprio dismiss a complaint on the ground of improper venue.
(Dacoycoy vs. IAC, G.R. No. 74854, April 2, 1991). An exception is provided in Section 4 of the
Rule on Summary procedure.

xxx ________________________________________ xxx _________________________________xxx

Rule 4 Section 4: When Rule no applicable

This rule shall not apply

a. In those cases where a specific rule or law provides otherwise; or

b. Where the parties have validly agreed in writing before the filing of the action on the
exclusive venue thereof.

COMMENT:

The rule on venue is inapplicable in cases:

1. Where a specific rule or law provides otherwise (i.e. an action for damages arising from
libel); or

2. The parties have validly agreed in writing before the filing of the action on the exclusive
venue thereof.

xxx ________________________________________ xxx _________________________________xxx

62
 RULE 5

UNIFORM PROCEDURE IN TRIAL COURTS

Rule 5 Section 1: Uniform Procedure

The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial
Courts, except (a) where a particular provision expressly or impliedly applies only to either of
said courts, or (b) in civil cases governed by the Rule on Summary Procedure.

A.M. NO. 08-8-7-SC

THE RULE OF PROCEDURE FOR SMALL CLAIMS CASES

Acting on the recommendation of the Chairperson, Technical Working Group, Committee on

Revision of the Rules of Court, submitting for the consideration and approval of the Court
the proposed "The Rule of Procedure for Small Claims Cases", the Court Resolved to
APPROVE the same.
The Rule shall take effect on October 1, 2008 following its publication in two (2) newspapers
of general circulation.

RULE OF PROCEDURE FOR SMALL CLAIMS CASES

SECTION 1. Title. This Rule shall be known as "The Rule of Procedure

for Small Claims Cases".
SECTION 2. Scope. This Rule shall govern the procedure in actions before the
Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and
Municipal Circuit Trial Courts for payment of money where the value of the claim does not
exceed One Hundred Thousand Pesos (P100,000.00) exclusive of interest and
costs.cCDAHE
SECTION 3. Definition of Terms. For purposes of this Rule:

(a) Plaintiff refers to the party who initiated a small claims action. The term
includes a defendant who has filed a counterclaim against plaintiff;

(b) Defendant is the party against whom the plaintiff has filed
a small claims action. The term includes a plaintiff against whom a
defendant has filed a claim, or a person who replies to the claim;

63
 (c) Person is an individual, corporation, partnership, limited liability
partnership, association, or other juridical entity endowed with
personality by law;

(d) Individual is a natural person;

(e) Motion means a party's request, written or oral, to the court for an order or
other action. It shall include an informal written request to the court,
such as a letter;

(f) Good cause means circumstances sufficient to justify the requested order or
other action, as determined by the judge; and

(g) Affidavit means a written statement or declaration of facts that are sworn or
affirmed to be true.

SECTION 4. Applicability. The Metropolitan Trial Courts, Municipal Trial Courts in

Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts shall apply this Rule in all
actions which are: (a) purely civil in nature where the claim or relief prayed for by the
plaintiff is solely for payment or reimbursement of sum of money, and (b) the civil aspect of
criminal actions, either filed before the institution of the criminal action, or reserved upon the
filing of the criminal action in court, pursuant to Rule 111 of the Revised Rules of Criminal
Procedure.
These claims or demands may be:

(a) For money owed under any of the following:

1. Contract of Lease;

2. Contract of Loan;

3. Contract of Services;

4. Contract of Sale; or

5. Contract of Mortgage;

(b) For damages arising from any of the following:

1. Fault or negligence;

2. Quasi-contract; or

3. Contract;

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 (c) The enforcement of a barangay amicable settlement or an arbitration award
involving a money claim covered by this Rule pursuant to Sec. 417 of
Republic Act 7160, otherwise known as the Local Government Code of
1991. DSAEIT

SECTION 5. Commencement of Small Claims Action. A small claims action is

commenced by filing with the court an accomplished and verified Statement of Claim (Form
1-SCC) in duplicate, accompanied by a Certification of Non-forum Shopping (Form 1-A,
SCC), and two (2) duly certified photocopies of the actionable document/s subject of the
claim, as well as the affidavits of witnesses and other evidence to support the claim. No
evidence shall be allowed during the hearing which was not attached to or submitted together
with the Claim, unless good cause is shown for the admission of additional evidence.
No formal pleading, other than the Statement of Claim described in this Rule, is necessary to
initiate a smallclaims action.
SECTION 6. Joinder of Claims. Plaintiff may join in a single statement of claim one or
more separate smallclaims against a defendant provided that the total amount claimed,
exclusive of interest and costs, does not exceed P100,000.00.
SECTION 7. Affidavits. The affidavits submitted under this Rule shall state only facts of
direct personal knowledge of the affiants which are admissible in evidence.
A violation of this requirement shall subject the party, and the counsel who assisted the party
in the preparation of the affidavits, if any, to appropriate disciplinary action. The
inadmissible affidavit(s) or portion(s) thereof shall be expunged from the record.
SECTION 8. Payment of Filing Fees. The plaintiff shall pay the docket and other legal
fees prescribed under Rule 141 of the Revised Rules of Court, unless allowed to litigate as an
indigent.
A claim filed with a motion to sue as indigent (Form 6-SCC) shall be referred to the
Executive Judge for immediate action in case of multi-sala courts, or to the Presiding Judge
of the court hearing the small claims case. If the motion is granted by the Executive Judge,
the case shall be raffled off or assigned to the court designated to hear small claims cases. If
the motion is denied, the plaintiff shall be given five (5) days within which to pay the docket
fees, otherwise, the case shall be dismissed without prejudice. In no case shall a party, even if
declared an indigent, be exempt from the payment of the P1,000.00 fee for service of
summons and processes in civil cases. cDIHES
SECTION 9. Dismissal of the Claim. After the court determines that the case falls under
this Rule, it may, from an examination of the allegations of the Statement of Claim and such
evidence attached thereto, by itself, dismiss the case outright on any of the grounds apparent
from the Claim for the dismissal of a civil action.
SECTION 10. Summons and Notice of Hearing. If no ground for dismissal is found, the
court shall forthwith issue Summons (Form 2-SCC) on the day of receipt of the Statement of
Claim, directing the defendant to submit a verified Response.

65
The court shall also issue a Notice (Form 4-SCC) to both parties, directing them to appear
before it on a specific date and time for hearing, with a warning that no unjustified
postponement shall be allowed, as provided in Section 19 of this Rule.
The summons and notice to be served on the defendant shall be accompanied by a copy of
the Statement of Claim and documents submitted by plaintiff, and a copy of the
Response (Form 3-SCC) to be accomplished by the defendant. The Notice shall contain an
express prohibition against the filing of a motion to dismiss or any other motion under
Section 14 of this Rule.
SECTION 11. Response. The defendant shall file with the court and serve on the plaintiff
a duly accomplished and verified Response within a non-extendible period of ten (10) days
from receipt of summons. The Response shall be accompanied by certified photocopies of
documents, as well as affidavits of witnesses and other evidence in support thereof. No
evidence shall be allowed during the hearing which was not attached to or submitted together
with the Response, unless good cause is shown for the admission of additional evidence.
SECTION 12. Effect of Failure to File Response. Should the defendant fail to file his
Response within the required period, the court by itself shall render judgment as may be
warranted by the facts alleged in the Statement of Claim limited to what is prayed for. The
court however, may, in its discretion, reduce the amount of damages for being excessive or
unconscionable.
SECTION 13. Counterclaims within the Coverage of this Rule. If at the time the action is
commenced, the defendant possesses a claim against the plaintiff that (a) is within the
coverage of this Rule, exclusive of interest and costs; (b) arises out of the same transaction or
event that is the subject matter of the plaintiff's claim; (c) does not require for its adjudication
the joinder of third parties; and (d) is not the subject of another pending action, the claim
shall be filed as a counterclaim in the Response; otherwise, the defendant shall be barred
from suit on the counterclaim.
The defendant may also elect to file a counterclaim against the plaintiff that does not arise
out of the same transaction or occurrence, provided that the amount and nature thereof are
within the coverage of this Rule and the prescribed docket and other legal fees are paid.

SECTION 14. Prohibited Pleadings and Motions. The following pleadings, motions, or
petitions shall not be allowed in the cases covered by this Rule:

(a) Motion to dismiss the complaint except on the ground of lack of

jurisdiction;

(b) Motion for a bill of particulars;

(c) Motion for new trial, or for reconsideration of a judgment, or for

reopening of trial;

(d) Petition for relief from judgment;

66
 (e) Motion for extension of time to file pleadings, affidavits, or any other
paper;

(f) Memoranda;

(g) Petition for certiorari, mandamus, or prohibition against any interlocutory

order issued by the court;

(h) Motion to declare the defendant in default;

(i) Dilatory motions for postponement;

(j) Reply;

(k) Third-party complaints; and

(l) Interventions.

SECTION 15. Availability of Forms; Assistance by Court Personnel. The Clerk of Court
or other court personnel shall provide such assistance as may be requested by a plaintiff or a
defendant regarding the availability of forms and other information about the coverage,
requirements as well as procedure for small claims cases.

SECTION 16. Appearance. The parties shall appear at the designated date of hearing
personally or through a representative authorized under a Special Power of Attorney (Form
5-SCC) to enter into an amicable settlement, to submit to Judicial Dispute Resolution (JDR)
and to enter into stipulations or admissions of facts and of documentary exhibits. aEcTDI
SECTION 17. Appearance of Attorneys Not Allowed. No attorney shall appear in behalf
of or represent a party at the hearing, unless the attorney is the plaintiff or defendant.
If the court determines that a party cannot properly present his/her claim or defense and
needs assistance, the court may, in its discretion, allow another individual who is not an
attorney to assist that party upon the latter's consent.
SECTION 18. Non-appearance of Parties. Failure of the plaintiff to appear shall be cause
for the dismissal of the claim without prejudice. The defendant who appears shall be entitled
to judgment on a permissive counterclaim.
Failure of the defendant to appear shall have the same effect as failure to file a Response
under Section 12 of this Rule. This shall not apply where one of two or more defendants who
are sued under a common cause of action and have pleaded a common defense appears at the
hearing. 3uplaw08
Failure of both parties to appear shall cause the dismissal with prejudice of both the claim
and counterclaim.

67
 SECTION 19. Postponement when Allowed. A request for postponement of a hearing
may be granted only upon proof of the physical inability of the party to appear before the
court on the scheduled date and time. A party may avail of only one (1) postponement.
SECTION 20. Duty of the Court. At the beginning of the court session, the judge shall
read aloud a short statement explaining the nature, purpose and the rule of procedure
of small claims cases.
SECTION 21. Judicial Dispute Resolution. At the hearing, the judge shall conduct
Judicial Dispute Resolution (JDR) through mediation, conciliation, early neutral evaluation,
or any other mode of JDR. Any settlement or resolution of the dispute shall be reduced into
writing (Form 7-SCC), signed by the parties and submitted to the court for approval.
SECTION 22. Failure of JDR. If JDR fails and the parties agree in writing (Form 10-
SCC) that the hearing of the case shall be presided over by the judge who conducted the JDR,
the hearing shall so proceed in an informal and expeditious manner and terminated within
one (1) day.
Absent such agreement, (a) in case of a multi-sala court, the case shall, on the same day, be
transmitted(Form 11-SCC) to the Office of the Clerk of Court for immediate referral by the
Executive Judge to the pairing judge for hearing and decision within five (5) working days
from referral; (b) in case of a single sala court, the pairing judge shall hear and decide the
case in the court of origin within five (5) working days from referral by the JDR judge.
SECTION 23. Decision. After the hearing, the court shall render its decision on the same
day, based on the facts established by the evidence (Form 13-SCC). The decision shall
immediately be entered by the Clerk of Court in the court docket for civil cases and a copy
thereof forthwith served on the parties. TCEaDI
The decision shall be final and unappealable.
SECTION 24. Execution. If the decision is rendered in favor of the plaintiff, execution
shall issue upon motion(Form 9-SCC).
SECTION 25. Applicability of the Rules of Civil Procedure. The Rules of Civil Procedure
shall apply suppletorily insofar as they are not inconsistent with this Rule. aCTcDS
SECTION 26. Effectivity. This Rule shall take effect on October 1, 2008 for the pilot
courts designated to apply the procedure for small claims cases following its publication in
two newspapers of general circulation.
xxx ________________________________________ xxx _________________________________xxx

JURISDICTION: KATARUNGANG PAMBARANGAY

Sections 399-422, RA 7160 (Local Government Code)

Section 399. Lupong Tagapamayapa. -

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 (a) There is hereby created in each barangay a lupong tagapamayapa, hereinafter referred
to as the lupon, composed of the punong barangay, as chairman and ten (10) to twenty
(20) members. The lupon shall be constituted every three (3) years in the manner
provided herein.

(b) Any person actually residing or working, in the barangay, not otherwise expressly
disqualified by law, and possessing integrity, impartiality, independence of mind, sense
of fairness, and reputation for probity, may be appointed a member of the lupon.

(c) A notice to constitute the lupon, which shall include the names of proposed members
who have expressed their willingness to serve, shall be prepared by the punong barangay
within the first fifteen (15) days from the start of his term of office. Such notice shall be
posted in three (3) conspicuous places in the barangay continuously for a period of not
less than three (3) weeks;

(d) The punong barangay, taking into consideration any opposition to the proposed
appointment or any recommendations for appointment as may have been made within the
period of posting, shall within ten (10) days thereafter, appoint as members those whom
he determines to be suitable therefor. Appointments shall be in writing, signed by the
punong barangay, and attested to by the barangay secretary.

(e) The list of appointed members shall be posted in three (3) conspicuous places in the
barangay for the entire duration of their term of office; and

(f) In barangays where majority of the inhabitants are members of indigenous cultural
communities, local systems of settling disputes through their councils of datus or elders
shall be recognized without prejudice to the applicable provisions of this Code.

Section 400. Oath and Term of Office. - Upon appointment, each lupon member shall take an
oath of office before the punong barangay. He shall hold office until a new lupon is constituted
on the third year following his appointment unless sooner terminated by resignation, transfer of
residence or place of work, or withdrawal of appointment by the punong barangay with the
concurrence of the majority of all the members of the lupon.

Section 401. Vacancies. - Should a vacancy occur in the lupon for any cause, the punong
barangay shall immediately appoint a qualified person who shall hold office only for the
unexpired portion of the term.

Section 402. Functions of the Lupon. - The lupon shall:

(a) Exercise administrative supervision over the conciliation panels provided herein;

(b) Meet regularly once a month to provide a forum for exchange of ideas among its
members and the public on matters relevant to the amicable settlement of disputes, and to

69
 enable various conciliation panel members to share with one another their observations
and experiences in effecting speedy resolution of disputes; and

(c) Exercise such other powers and perform such other duties and functions as may be
prescribed by law or ordinance.

Section 403. Secretary of the Lupon. - The barangay secretary shall concurrently serve as the
secretary of the lupon. He shall record the results of mediation proceedings before the punong
barangay and shall submit a report thereon to the proper city or municipal courts. He shall also
receive and keep the records of proceedings submitted to him by the various conciliation panels.

Section 404. Pangkat ng Tagapagkasundo. -

(a) There shall be constituted for each dispute brought before the lupon a conciliation
panel to be known as the pangkat ng tagapagkasundo, hereinafter referred to as the
pangkat, consisting of three (3) members who shall be chosen by the parties to the dispute
from the list of members of the lupon.

Should the parties fail to agree on the pangkat membership, the same shall be determined
by lots drawn by the lupon chairman.

(b) The three (3) members constituting the pangkat shall elect from among themselves
the chairman and the secretary. The secretary shall prepare the minutes of the pangkat
proceedings and submit a copy duly attested to by the chairman to the lupon secretary
and to the proper city or municipal court. He shall issue and cause to be served notices to
the parties concerned.

The lupon secretary shall issue certified true copies of any public record in his custody
that is not by law otherwise declared confidential.

Section 405. Vacancies in the Pangkat. - Any vacancy in the pangkat shall be chosen by the
parties to the dispute from among the other lupon members. Should the parties fail to agree on a
common choice, the vacancy shall be filled by lot to be drawn by the lupon chairman.

Section 406. Character of Office and Service of Lupon Members. -

(a) The lupon members, while in the performance of their official duties or on the
occasion thereof, shall be deemed as persons in authority, as defined in the Revised Penal
Code.

(b) The lupon or pangkat members shall serve without compensation, except as provided
for in Section 393 and without prejudice to incentives as provided for in this Section and
in Book IV of this Code. The Department of the Interior and Local Government shall
provide for a system of granting economic or other incentives to the lupon or pangkat
members who adequately demonstrate the ability to judiciously and expeditiously resolve
70
 cases referred to them. While in the performance of their duties, the lupon or pangkat
members, whether in public or private employment, shall be deemed to be on official
time, and shall not suffer from any diminution in compensation or allowance from said
employment by reason thereof.

Section 407. Legal Advice on Matters Involving Questions of Law. - The provincial, city legal
officer or prosecutor or the municipal legal officer shall render legal advice on matters involving
questions of law to the punong barangay or any lupon or pangkat member whenever necessary in
the exercise of his functions in the administration of the katarungang pambarangay.

Section 408. Subject Matter for Amicable Settlement; Exception Thereto. - The lupon of each
barangay shall have authority to bring together the parties actually residing in the same city or
municipality for amicable settlement of all disputes except:

(a) Where one party is the government, or any subdivision or instrumentality thereof;

(b) Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions;

(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five
thousand pesos (P5, 000.00);

(d) Offenses where there is no private offended party;

(e) Where the dispute involves real properties located in different cities or municipalities
unless the parties thereto agree to submit their differences to amicable settlement by an
appropriate lupon;

(f) Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by an appropriate lupon;

(g) Such other classes of disputes which the President may determine in the interest of
Justice or upon the recommendation of the Secretary of Justice.

The court in which non-criminal cases not falling within the authority of the lupon under
this Code are filed may, at any time before trial motu propio refer the case to the lupon
concerned for amicable settlement.

Section 409. Venue. -

(a) Disputes between persons actually residing in the same barangay shall be brought for
amicable settlement before the lupon of said barangay.

71
 (b) Those involving actual residents of different barangays within the same city or
municipality shall be brought in the barangay where the respondent or any of the
respondents actually resides, at the election of the complaint.

(c) All disputes involving real property or any interest therein shall be brought in the
barangay where the real property or the larger portion thereof is situated.

(d) Those arising at the workplace where the contending parties are employed or at the
institution where such parties are enrolled for study, shall be brought in the barangay
where such workplace or institution is located.

Objections to venue shall be raised in the mediation proceedings before the punong
barangay; otherwise, the same shall be deemed waived. Any legal question which may
confront the punong barangay in resolving objections to venue herein referred to may be
submitted to the Secretary of Justice, or his duly designated representative, whose ruling
thereon shall be binding.

Section 410. Procedure for Amicable Settlement. -

(a) Who may initiate proceeding - Upon payment of the appropriate filing fee, any
individual who has a cause of action against another individual involving any matter
within the authority of the lupon may complain, orally or in writing, to the lupon
chairman of the barangay.

(b) Mediation by lupon chairman - Upon receipt of the complaint, the lupon chairman
shall within the next working day summon the respondent(s), with notice to the
complainant(s) for them and their witnesses to appear before him for a mediation of their
conflicting interests. If he fails in his mediation effort within fifteen (15) days from the
first meeting of the parties before him, he shall forthwith set a date for the constitution of
the pangkat in accordance with the provisions of this Chapter.

(c) Suspension of prescriptive period of offenses - While the dispute is under mediation,
conciliation, or arbitration, the prescriptive periods for offenses and cause of action under
existing laws shall be interrupted upon filing the complaint with the punong barangay.
The prescriptive periods shall resume upon receipt by the complainant of the complainant
or the certificate of repudiation or of the certification to file action issued by the lupon or
pangkat secretary: Provided, however, That such interruption shall not exceed sixty (60)
days from the filing of the complaint with the punong barangay.

(d) Issuance of summons; hearing; grounds for disqualification - The pangkat shall
convene not later than three (3) days from its constitution, on the day and hour set by the
lupon chairman, to hear both parties and their witnesses, simplify issues, and explore all
possibilities for amicable settlement. For this purpose, the pangkat may issue summons
for the personal appearance of parties and witnesses before it. In the event that a party
moves to disqualify any member of the pangkat by reason of relationship, bias, interest,

72
 or any other similar grounds discovered after the constitution of the pangkat, the matter
shall be resolved by the affirmative vote of the majority of the pangkat whose decision
shall be final. Should disqualification be decided upon, the resulting vacancy shall be
filled as herein provided for.

(e) Period to arrive at a settlement - The pangkat shall arrive at a settlement or resolution
of the dispute within fifteen (15) days from the day it convenes in accordance with this
section. This period shall, at the discretion of the pangkat, be extendible for another
period which shall not exceed fifteen (15) days, except in clearly meritorious cases.

Section 411. Form of settlement. - All amicable settlements shall be in writing, in a language or
dialect known to the parties, signed by them, and attested to by the lupon chairman or the
pangkat chairman, as the case may be. When the parties to the dispute do not use the same
language or dialect, the settlement shall be written in the language known to them.

Section 412. Conciliation. -

(a) Pre-condition to Filing of Complaint in Court. - No complaint, petition, action, or

proceeding involving any matter within the authority of the lupon shall be filed or
instituted directly in court or any other government office for adjudication, unless there
has been a confrontation between the parties before the lupon chairman or the pangkat,
and that no conciliation or settlement has been reached as certified by the lupon secretary
or pangkat secretary as attested to by the lupon or pangkat chairman or unless the
settlement has been repudiated by the parties thereto.

(b) Where Parties May Go Directly to Court. - The parties may go directly to court in the
following instances:

(1) Where the accused is under detention;

(2) Where a person has otherwise been deprived of personal liberty calling for
habeas corpus proceedings;

(3) Where actions are coupled with provisional remedies such as preliminary
injunction, attachment, delivery of personal property and support pendente lite;
and

(4) Where the action may otherwise be barred by the statute of limitations.

(c) Conciliation among members of indigenous cultural communities. - The customs and
traditions of indigenous cultural communities shall be applied in settling disputes
between members of the cultural communities.

Section 413. Arbitration. -

73
 (a) The parties may, at any stage of the proceedings, agree in writing that they shall abide
by the arbitration award of the lupon chairman or the pangkat. Such agreement to
arbitrate may be repudiated within five (5) days from the date thereof for the same
grounds and in accordance with the procedure hereinafter prescribed. The arbitration
award shall be made after the lapse of the period for repudiation and within ten (10) days
thereafter.

(b) The arbitration award shall be in writing in a language or dialect known to the parties.
When the parties to the dispute do not use the same language or dialect, the award shall
be written in the language or dialect known to them.

Section 414. Proceedings Open to the Public; Exception. - All proceedings for settlement shall
be public and informal: Provided, however, That the lupon chairman or the pangkat chairman, as
the case may be, may motu proprio or upon request of a party, exclude the public from the
proceedings in the interest of privacy, decency, or public morals.

Section 415. Appearance of Parties in Person. - In all katarungang pambarangay proceedings,

the parties must appear in person without the assistance of counsel or representative, except for
minors and incompetents who may be assisted by their next-of-kin who are not lawyers.

Section 416. Effect of Amicable Settlement and Arbitration Award. - The amicable settlement
and arbitration award shall have the force and effect of a final judgment of a court upon the
expiration of ten (10) days from the date thereof, unless repudiation of the settlement has been
made or a petition to nullify the award has been filed before the proper city or municipal court.

However, this provision shall not apply to court cases settled by the lupon under the last
paragraph of Section 408 of this Code, in which case the compromise or the pangkat chairman
shall be submitted to the court and upon approval thereof, have the force and effect of a
judgment of said court.

Section 417. Execution. - The amicable settlement or arbitration award may be enforced by
execution by the lupon within six (6) months from the date of the settlement. After the lapse of
such time, the settlement may be enforced by action in the appropriate city or municipal court.

Section 418. Repudiation. - Any party to the dispute may, within ten (10) days from the date of
the settlement, repudiate the same by filing with the lupon chairman a statement to that effect
sworn to before him, where the consent is vitiated by fraud, violence, or intimidation. Such
repudiation shall be sufficient basis for the issuance of the certification for filing a complaint as
hereinabove provided.

Section 419. Transmittal of Settlement and Arbitration. - Award to the Court. - The secretary of
the lupon shall transmit the settlement or the arbitration award to the appropriate city or
municipal court within five (5) days from the date of the award or from the lapse of the ten-day
period repudiating the settlement and shall furnish copies thereof to each of the parties to the
settlement and the lupon chairman.

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Section 420. Power to Administer Oaths. - The punong barangay, as chairman of the lupong
tagapamayapa, and the members of the pangkat are hereby authorized to administer oaths in
connection with any matter relating to all proceedings in the implementation of the katarungang
pambarangay.

Section 421. Administration; Rules and Regulations. - The city or municipal mayor, as the case
may be, shall see to the efficient and effective implementation and administration of the
katarungang pambarangay. The Secretary of Justice shall promulgate the rules and regulations
necessary to implement this Chapter.

Section 422. Appropriations. - Such amount as may be necessary for the effective
implementation of the katarungang pambarangay shall be provided for in the annual budget of
the city or municipality concerned.

xxx ________________________________________ xxx _________________________________xxx

RESOLUTION OF THE COURT EN BANC 1991

RESOLUTION OF THE COURT EN BANC DATED OCTOBER 15, 1991

PROVIDING FOR THE REVISED RULE ON SUMMARY PROCEDURE FOR
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS IN CITIES,
MUNICIPAL TRIAL COURTS AND MUNICIPAL CIRCUIT TRIAL COURTS

Pursuant to Section 36 of the Judiciary Reorganization Act of 1980 (B.P Blg. 129)
and to achieve an expeditious and inexpensive determination of the cases referred to herein,
the Court Resolved to promulgate the following REVISED Rule
on Summary Procedure: Cdpr
I. Applicability
SECTION 1.Scope. This rule shall govern the summary procedure in the
Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal Trial Courts,
and the Municipal Circuit Trial Courts in the following cases falling within their jurisdiction:

A.Civil Cases:

(1)All cases of forcible entry and unlawful detainer, irrespective of

the amount of damages or unpaid rentals sought to be
recovered. Where attorney's fees are awarded, the same shall
not exceed twenty thousand pesos (P20,000.00).

75
 (2)All other civil cases, except probate proceedings, where the total
amount of the plaintiff's claim does not exceed ten thousand
pesos (P10,000.00), exclusive of interest and costs.

B.Criminal Cases:

(1)Violations of traffic laws, rules and regulations;

(2)Violations of the rental law;

(3)Violations of municipal or city ordinances;

(4)All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding six months, or a
fine not exceeding (P1,000.00), or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil
liability arising therefrom: Provided, however, that in offenses
involving damage to property through criminal negligence, this
Rule shall govern where the imposable fine does not exceed ten
thousand pesos (P10,000.00).

This Rule shall not apply to a civil case where the plaintiff's cause of action is pleaded in the
same complaint with another cause of action subject to the ordinary procedure; nor to a
criminal case where the offense charged is necessarily related to another criminal case
subject to the ordinary procedure.
SECTION 2.Determination of applicability. Upon the filing of a civil or criminal action,
the court shall issue an order declaring whether or not the case shall be governed by this Rule
A patently erroneous determination to avoid the application of the Rule
on Summary Procedure is a ground for disciplinary action.

II. Civil Cases

SECTION 3.Pleadings.

A.Pleadings allowed. The only pleadings allowed to be filed are the

complaints, compulsory counterclaims and cross-claims pleaded in
the answer, and the answers thereto.

B.Verifications. All pleadings shall be verified.

SECTION 4.Duty of Court. After the court determines that the case falls
under summary procedure, it may, from an examination of the allegations therein and such
evidence as may be attached thereto, dismiss the case outright on any of the grounds apparent
therefrom for the dismissal of a civil action. If no ground for dismissal is found it shall

76
forthwith issue summons which shall state that the summary procedure under this Rule shall
apply. d-c
SECTION 5.Answer. Within ten (10) days from service of summons, the defendant shall
file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and
negative defenses not pleaded therein shall be deemed waived, except for lack of jurisdiction
over the subject matter. Cross-claims and compulsory counterclaims not asserted in the
answer shall be considered barred. The answer to counterclaims or cross-claims shall be filed
and served within ten (10) days from service of the answer in which they are pleaded.
SECTION 6.Effect of Failure to Answer. Should the defendant fail to answer the
complaint within the period above provided, the court, motu proprio, or on motion of the
plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and
limited to what is prayed for therein: Provided, however, that the court may in its discretion
reduce the amount of damages and attorney's fees claimed for being excessive or otherwise
unconscionable. This is without prejudice to the applicability of Section 4, Rule 15 of the
Rules of Court, if there are two or more defendants.
SECTION 7.Preliminary Conference; Appearance of Parties. Not later than thirty (30)
days after the last answer is filed, a preliminary conference shall be held. The rules on pre-
trial in ordinary cases shall be applicable to the preliminary conference unless inconsistent
with the provisions of this Rule.
The failure of the plaintiff to appear in the preliminary conference shall be a cause for the
dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be
entitled to judgment on his counterclaim in accordance with Section 6 hereof. All cross-
claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in
accordance with Section 6 hereof. This Rule shall not apply where one of two or more
defendants sued under a common cause of action who had pleaded a common defense shall
appear at the preliminary conference.
SECTION 8.Record of Preliminary Conference. Within five (5) days after the termination
of the preliminary conference, the court shall issue an order stating the matters taken up
therein, including but not limited to:

a)Whether the parties have arrived at an amicable settlement, and if so, the
terms thereof;

b)The stipulations or admissions entered into by the parties;

c)Whether, on the basis of the pleadings and the stipulations and admissions
made by the parties, judgment may be rendered without the need of
further proceedings, in which event the judgment shall be rendered
within thirty (30) days from issuance of the order;

d)A clear specification of material facts which remain controverted; and

77
 e)Such other matters intended to expedite the disposition of the case.

SECTION 9.Submission of Affidavits and Position Papers. Within ten (10) days from
receipt of the order mentioned in the next preceding section, the parties shall submit the
affidavits of their witnesses and other evidence on the factual issues defined in the order,
together with their position papers setting forth the law and the facts relied upon by them.
SECTION 10.Rendition of Judgment. Within thirty (30) days after receipt of the last
affidavits and position papers, or the expiration of the period for filing the same, the court
shall render judgment.
However should the court find it necessary to clarify certain material facts, it may, during the
said period, issue an order specifying the matters to be clarified, and require the parties to
submit affidavits or other evidence on the said matters within ten (10) days from receipt of
said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last
clarificatory affidavits, or the expiration of the period for filing the same.
The court shall not resort to clarificatory procedure to gain time for the rendition of the
judgment.

III. Criminal Cases

SECTION 11.How Commenced. The filing of criminal cases falling within the scope of
this Rule shall be either by complaint or by information: Provided, however, that in
Metropolitan Manila and in Chartered Cities. such cases shall be commenced only by
information, except when the offense cannot be prosecuted de oficio.
The complaint or information shall be accompanied by the affidavits of the complainant and
of his witnesses in such number of copies as there are accused plus two (2) copies for the
court's files. If this requirement is not complied with within five (5) days from date of filing,
the case may be dismissed.
SECTION 12.Duty of Court.

(a)If commenced by complaint. On the basis of the complaint and the

affidavits and other evidence accompanying the same, the court may
dismiss the case outright for being patently without basis or merit and
order the release of the accused if in custody.

(b)If commenced by information. When the case is commenced by

information, or is not dismissed pursuant to the next preceding
paragraph, the court shall issue an order which, together with copies of
the affidavits and other evidence submitted by the prosecution, shall
require the accused to submit his counter-affidavit and the affidavits of
his witnesses as well as any evidence in his behalf, serving copies
thereof on the complainant or prosecutor not later than ten (10) days

78
 from receipt of said order. The prosecution may file reply affidavits
within ten (10) days after receipt of the counter-affidavits of the defense.

SECTION 13.Arraignment and Trial. Should the court, upon a consideration of the
complaint or information and the affidavits submitted by both parties, find no cause or
ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the
court shall set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be immediately arraigned and if he
enters a plea of guilty, he shall forthwith be sentenced.
SECTION 14.Preliminary Conference. Before conducting the trial, the court shall call the
parties to a preliminary conference during which a stipulation of facts may be entered into, or
the propriety of allowing the accused to enter a plea of guilty to a lesser offense may be
considered, or such other matters may be taken up to clarify the issues and to ensure a speedy
disposition of the case. However, no admission by the accused shall be used against him
unless reduced to writing and signed by the accused and his counsel. A refusal or failure to
stipulate shall not prejudice the accused.
SECTION 15.Procedure of Trial. At the trial, the affidavits submitted by the parties shall
constitute the direct testimonies of the witnesses who executed the same. Witnesses who
testified may be subjected to cross-examination, redirect or re-cross examination. Should the
affiant fail to testify, his affidavit shall not be considered as competent evidence for the party
presenting the affidavit, but the adverse party may utilize the same for any admissible
purpose.

Except on rebuttal or surrebuttal, no witness shall be allowed to testify unless his affidavit
was previously submitted to the court in accordance with Section 12 hereof.
However, should a party desire to present additional affidavits or counter-affidavits as part of
his direct evidence, he shall so manifest during the preliminary conference, stating the
purpose thereof. If allowed by the court, the additional affidavits of the prosecution or the
counter-affidavits of the defense shall be submitted to the court and served on the adverse
party not later than three (3) days after the termination of the preliminary conference. If the
additional affidavits are presented by the prosecution, the accused may file his counter-
affidavits and serve the same on the prosecution within three (3) days from such service.
SECTION 16.Arrest of Accused. The court shall not order the arrest of the accused except
for failure to appear whenever required. Release of the person arrested shall either be on bail
or on recognizance by a responsible citizen acceptable to the court.
SECTION 17.Judgment. Where a trial has been conducted, the court shall promulgate the
judgment not later than thirty (30) days after the termination of trial.
IV. Common Provisions
SECTION 18.Referral to Lupon. Cases requiring referral to the Lupon for conciliation
under the provisions of Presidential Decree No. 1508 where there is no showing of
compliance with such requirement, shall be dismissed without prejudice, and may be revived

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only after such requirement shall have been complied with. This provision shall not apply to
criminal cases where the accused was arrested without a warrant.
SECTION 19.Prohibited Pleadings and Motions. The following pleadings, motions, or
petitions shall not be allowed in the cases covered by this Rule:

(a)Motion to dismiss the complaint or to quash the complaint or information

except on the ground of lack of jurisdiction over the subject matter, or
failure to comply with the preceding section;

(b)Motion for a bill of particulars;

(c)Motion for new trial, or for reconsideration of a judgment, or for

reopening of trial;

(d)Petition for relief from judgment;

(e)Motion for extension of time to file pleadings, affidavits or any other paper;

(f)Memoranda;

(g)Petition for certiorari, mandamus, or prohibition against any interlocutory

order issued by the court;

(h)Motion to declare the defendant in default;

(i)Dilatory motions for postponement;

(j)Reply;

(k)Third party complaints;

(l)Interventions.

SECTION 20.Affidavits. The affidavits required to be submitted under this Rule shall state
only facts of direct personal knowledge of the affiants which are admissible in evidence, and
shall show their competence to testify to the matters stated therein.
A violation of this requirement may subject the party or the counsel who submits the same to
disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion
thereof from the record.
SECTION 21.Appeal. The judgment or final order shall be appealable to the appropriate
regional trial court which shall decide the same in accordance with Section 22 of Batas
Pambansa Blg. 129. The decision of the regional trial court in civil cases governed by this
Rule, including forcible entry and unlawful detainer, shall be immediately executory, without

80
 prejudice to a further appeal that may be taken therefrom. Section 10 of Rule 70 shall be
deemed repealed.
SECTION 22.Applicability of the Regular Rules. The regular procedure prescribed in the
Rules of Court shall apply to the special cases herein provided for in a suppletory capacity
insofar as they are not inconsistent herewith. cda
SECTION 23.Effectivity. This Revised Rule on Summary Procedure shall be effective on
November 15, 1991.

Published in the Manila Chronicle on October 21, 1991 and in the Manila Bulletin on October
22, 1991.

xxx ________________________________________ xxx _________________________________xxx

Rule 5 Section 2: Uniform Procedure

The term Municipal Trial Courts as used in these Rules shall include Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts

xxx ________________________________________ xxx _________________________________xxx

RULE 6 KINDS OF PLEADINGS

RULE 7 PARTS OF A PLEADING

RULE 8 MANNER OF MAKING ALLEGATIONS INPLEADING

RULE 9 EFFECT OF FAILURE TO PLEAD

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

Now we go to ordinary procedure in relation to the first stage in the life of the civil case. The
first stage in the life of a civil case is the stage for the submission of pleadings. And for this
purpose, you should read Rule 6 up to Rule 10, because these rules are complimentary to one
another when it comes to pleadings.

Availability of pleadings under Rule 6

The pleadings enumerated in Rule 6 are available in all civil actions and also special civil actions,
which are governed by ordinary procedure. Of course in summary procedure not all these
pleadings are available. In fact, some of them are expressly prohibited by summary procedure.
81
May there be civil actions or special civil actions where the availability of the pleadings
mentioned in Rule 6, is not given to the parties.

The general rule again is that, the pleading in Rule 6 are available in civil cases and in
special civil actions that follow ordinary procedure. The exception is found in Rule 67, that is, in
a petition or complaint for expropriation. In expropriation proceedings, a counter claim, a cross
claim and a third party complaint are expressly prohibited. So do not be of the impression that
it is only in summary procedure where certain pleadings are prohibited. There is one special
civil action where the availment of a counter claim, a cross claim and a third party complaint is
expressly prohibited by the rule itself.

Rule 6 Section 1: Pleadings defined;

Pleadings are the written statements of the respective claims and defenses of the
parties submitted to the court for appropriate judgment.

Rule 8 Section 1: In general

Every pleading shall contain in a methodical and logical form, a plain, concise and direct
statement of the ultimate facts on which the party pleading relies for his claim or defenses, as
the case may be, omitting the statement of mere evidentiary facts.

If a defense on is based on law, the pertinent provisions thereof and their applicability
to him shall be clearly and concisely stated.

The rules define pleadings as a written statement or allegations of the cause or

defenses submitted to the court for judgment, in other words, we dont recognize in our system
oral pleadings. The pleadings must always be in writing. And the rule also directs the pleader
the manner by which these pleadings are crafted. So in Rule 8, we find the provision which says
that, the pleadings must contain allegations presented in methodical and logical form. That is,
in concise and direct language, stating the cause of action or defenses. The message given by
these requirements, is that a lawyer is presumably skilled in crafting documents, in a
methodical and logical manner. And since you have taken up several units in English, you must
remember that in writing compositions, the unwritten rule is that a great composition is one
that embodies the use of imagination. So even if the rules require that the allegations should be
stated in a concise and direct manner, you should always leave to the court or to the other
party, the use of his imagination when he reads your pleading.

The rule also require that when a pleader drafts a pleading, he should not relate a story
to the court. He should divide the pleadings into paragraphs, to make it short and simple. And

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the rules also require that the pleading must be dated. The pleading must also be signed either
by the lawyer, or by his client, or both of them. When it is the lawyer who signs the pleading, he
submits a certification that he has read the pleading, there are enough grounds to support it,
and that it is not intended to delay the adjudication of the dispute. But when it is a client who
signs the pleading, the client does not make this certification.

COMMENT:

Purpose of Pleadings

1. To apprise the court of the rival claims in a judicial controversy submitted for trial and
decision;
2. To indicate fairly the nature of the claims and defenses of both parties; and
3. To present, define and narrow the issues, to limit the proof to be submitted in the trial and
form the foundation of proof to be submitted during the trial as well as advice a party to
what his adversary would rely on as a cause of action or defense.

Pleadings are necessary to invoke the jurisdiction of the court. They determine whether the issue
presented to be tried is of law or of fact.

A motion to dismiss is NOT a pleading.

HOWEVER, there are motions that actually seek judgment like a motion for judgment on the
pleadings (Rule 34) and motion for summary judgment (Rule 35)

All pleadings shall be liberally construed so as to do substantial justice. In cases there are
ambiguities in the pleadings, the same must be construed most strongly against the pleader and
that no presumptions in his favor are to be indulged in.

Every pleading shall contain in a methodical and logical form a plain, concise and direct
statement of the ultimate facts, omitting the statement of mere evidentiary facts.

Ultimate facts refer to those which directly form the basis if the right sought to be enforced or
the defense relied upon. If the ultimate facts are NOT alleged, the cause of action would be
insufficient.

Evidentiary facts refer to those which are necessary to prove the ultimate fact or which furnish
evidence of the existence of some other facts.

Test to distinguish conclusion of law from statement of facts

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If from the facts in evidence, the result can be reached by the process of natural reasoning
adopted in the investigation of truth; it becomes an ultimate fact to be found as such.

If, on the other hand, resort must be had to artificial processes of the law in order to reach a final
determination, the result is a conclusion of law.

xxx ________________________________________ xxx _________________________________xxx

Rule 7 Section 4: Verification

Except when otherwise specifically required by law or rule, pleading need not be under
oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.

A pleading required to be verified which contains a verification based on information

and belief or upon knowledge, information and belief, or lacks a proper verification, shall be
treated as an unsigned pleading.

When it comes to verification of pleadings, the general rule is that the pleadings do not
have to be verified. Verification is required only if the rules or the law requires a pleading to
be verified. If the law requires a pleading to be verified, but there is no verification made by the
client, will that defect be a formal or a substantial defect? As presently worded, if a pleading
required to be verified does not contain a verification that now constitutes a substantial defect.
The verification of a pleading has the same consequence as an unsigned pleading. An unsigned
pleading and an unverified pleading when verification is required, produces no legal effect
whatsoever. The absence of verification when required, will not affect the jurisdiction of the
court, but it is still a substantial defect. So this is a change from the old rule, which considered
absence of verification as a mere formal defect. The absence of a signature also is not a mere
formal defect. It is a substantial defect of the pleading.

COMMENT:

Pleadings need not be verified under oath EXCEPT when otherwise provided by the law or
rules.

How a pleading is verified: By an affidavit that the affiant:

1. Has read the pleading; and

84
 2. That the allegations therein are true and correct of his personal knowledge or based on
authentic documents

The purpose of requiring a verification is to secure an assurance that the allegation of the
petition have been made in good faith, or are true and correct, not merely a speculative. The
absence of a proper verification is cause to treat the pleading as unsigned and dismissible;
hence, produces no legal effect.

List of pleading that should be VERIFIED (not exclusive)

1. Civil complaints or initiatory pleadings asserting claims for relief (including permissive
counterclaim)
2. Statement of claim for Small Claims cases, as well as the Response thereto (See sec. 5 &
11, Rules of Procedure for Small Claims Cases)
3. Complaint for Injunction (See Sec. 4, Rule 58, Rules of Civil Procedure)
4. Application for appointment of receiver (See Sec. 1, Rule 59)
5. Application for support pendente lite(Sec. 1 Rule 69)
6. Petition for forcible entry or unlawful detainer, the answers thereto, and the answer to any
compulsory counterclaim and cross-claim pleaded in the answer( See Sec. 4 Rule 70)
7. Petition for indirect contempt (Sec. 4 Rule 71)
8. Petition from relief from judgment or order (Sec. 3 Rule 38)
9. Petition for Review from the RTC to the Supreme Court (Sec 2(c), Rule 41)
10. Petition for Review from RTC to Court of Appeals (Sec. 1 Rule 42)
11. Petition for Review under Rule 43, from CTA and other quasi judicial agencies to Court
of Appeals (Sec. 5 Rule 43)
12. Appeal by certiorari under Rule 45 from Court of Appeals to Supreme Court (Sec.1 Rule
45)
13. Petition for Certiorari (special civil action) under rule 64 (Sec. 2 Rule 64)
14. Petition for Certiorari (special Civil action) under rule 65 (Sec. 1 Rule 65)
15. Petition for Prohibition under Rule 65 (Sec. 2 Rule 65)
16. Petition for Mandamus under Rule 65 (Sec. 3 Rule 65)
17. Petition for Appointment of Guardian (Sec. 2 Rule 93)
18. Petition for leave filed by guardian to sell or encumber property of an estate (Sec. 1 Rule
95)
19. Petition for declaration of competency of a ward (Sec. 1 Rule 97)
20. Petition for habeas corpus (Sec. 3 Rule 102)
21. Petition for change of name (Sec. 2 Rule 103)
22. Petition for voluntary judicial dissolution of a corporation (Sec 1 Rule 105)
23. Petition for cancellation or correction of entries in the civil registry under Rule 108 (Sec.
1 Rule 108)
xxx ________________________________________ xxx _________________________________xxx
85
Rule 7 Section 5: Certification against Non Forum Shopping

The plaintiff or principal party shall certify under oath in the complaint or other
initiatory pleading asserting 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; 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 direct contempt of court, without prejudice to the corresponding administrative and
criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for administrative sanctions.

In certification of non forum shopping there have been conflicting decisions as to who
may sign the certification on non forum shopping. Some decisions require that the certification
must be signed by the party or the principal party himself. And under this decision, the
signature of a counsel will not be adequate when it come to the certification on non forum
shopping. But last year, the Supreme Court came out with a decision, involving Bank of the
Philippine Islands, which said that a counsel may sign the certification on non forum shopping if
he is provided with a special authority to do so. So a counsel may sign the certification on non-
forum shopping as long as he is especially authorized to do so by the client.

You should note that the rules concerning this certification on non-forum shopping are
strictly applied. Given the rule that any defect concerning non-forum shopping cannot be
amended. It is one of the defects which could not be remedied by an amended to the pleading.

COMMENT:

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Forum Shopping consist of filing multiple suits in different courts, either simultaneously or
successively, involving the same parties, to ask the courts to rule on the same or related causes
and/or to grant the same or substantially the same relief.

Test to determine the presence of forum shopping:

Whether in the two (or more) cases pending there is identity in terms of the following:

1. Parties or identity of interest represented;

2. Rights or causes of action; and
3. Relief sought

The certificate is to be executed by petitioner, and not by counsel, unless the latter is specifically
authorized to do so.

Ratio: the party himself has actual knowledge or knows better than anyone else, whether he has
initiated similar actions in other courts agencies or tribunals.

Three ways of committing forum shopping:

1. Filing multiple cases based on the same cause of action and with same prayer, the
previous not having been resolved yet (litis pendencia);
2. Filing multiple cases based on the same cause of action and with the same prayer, the
previous having been resolved with finality (res judicata);
3. Filing multiple cases based on the same cause of action but with different prayers
(splitting of cause of action, where the ground for dismissal is also litis pendentia or res
judicata)

Note: The certificate of non-forum shopping is a mandatory requirement in filing a complaint

and other initiatory pleadings asserting claim or relief.

These initiatory pleadings include not only the original complaint but also:
1. Permissive counterclaim;
2. Cross-claim;
3. Third (Fourth etc) party complaint;
4. Complaint in-intervention; and
5. Petition or application wherein the party asserts his claim for relief.

The rule does not require a certificate against forum shopping for a compulsory counterclaim
because it cannot be subject to a separate and independent adjudication. It is NOT an initiatory
pleading.

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Effect of failure to comply

Not curable by mere amendment of the pleading but shall be cause for the dismissal of
the case, without prejudice, unless, otherwise provided upon motion (not motu proprio) and
after hearing.

Effect of Submission of False Certification or Non-Compliance with the undertakings

therein:

1. Indirect Contempt; and

2. Without prejudice to the filing of administrative and criminal actions against the counsel.

Note: In relation to the crime of perjury, the material matter in a Certificate against Forum
Shopping is the truth of the required declarations which is designed to guard against litigants
pursuing simultaneous remedies in different fora. Willful and deliberate assertion of
falsehood in the certificate of non-forum shopping constitutes perjury.

Effect of willful and deliberate forum shopping

1. Shall be ground for summary dismissal of the case with prejudice; and
2. Direct contempt, as well as a cause for administrative sanctions.

Distinction between Defect in Verification and Certificate of Non-Forum Shopping

1. As to the verification, non compliance therewith or a defect therein does not necessarily
render the pleading fatally defective. The court may order its submission or correction or
act on the pleading if the attending circumstances are such that strict compliance with the
Rule may be dispensed with in order that the ends of justice may be served thereby.

Verification is deemed substantially complied with when one who has ample knowledge
to swear the truth of the allegations in the complaint or petition signs the verification, and
when matters alleged in the petition have been made in good faith or are true and correct.

2. As to certification against forum shopping, non compliance therewith or a defect therein,

unlike in verification, is generally not curable by its subsequent submission or correction
thereof, unless there is a need to relax the rule on the ground of substantial compliance
or presence of special circumstances or compelling reasons.

The certification against forum shopping must be signed by all the plaintiffs or
petitioners in a case, otherwise, those who did not sign will be dropped as parties to the
case.
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 Under reasonable or justifiable circumstances, however, as when all the plaintiffs or
petitioners share a common interest and invoke a common cause of action or defense, the
signature of only one of them in the certification against forum shopping substantially
complies with the Rule.

The certification against forum shopping must be executed by the party-pleader, not by
his counsel. If however, for reasonable or justifiable reasons, the party pleader is unable
to sign, he must execute a Special Power of Attorney designating his counsel of record to
sign on his behalf.

xxx ________________________________________ xxx _________________________________xxx

Rule 6 Section 3: Complaint;

The complaint is the pleading alleging the plaintiffs cause or causes of action. The names
and residences of the plaintiff and defendant must be stated.

COMMENT:

The Complaint should contain:

1. The names and residences of the plaintiff and defendant;
2. A concise statement of the ultimate facts constituting the plaintiffs cause of action.

Ultimate Facts refer to the essential facts constituting the plaintiffs cause of action, not
evidentiary facts or legal conclusions.
A fact is essential if it cannot be stricken out without leaving the statement of the cause of
action insufficient.
The jurisdiction of the court and the nature of the action are determined by the averments
in the complaint.

Test of sufficiency of the facts alleged in the complaint

Determine whether upon the averment of facts, a valid judgment may be properly
rendered.

What are not ultimate facts

1. Evidentiary or immaterial facts;
2. Legal conclusions, conclusions or inferences of facts from facts not stated, or incorrect
inferences or conclusions from facts stated;
3. The details of probative matter or particulars of evidence, statements of law, inferences
and arguments; and
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 4. An allegation that a contract is valid or void is a mere conclusion of law.
Note: a complaint is also called an initiatory pleading because it is actually the first pleading
filed in court. It is the pleading that initiates the civil action.
It is important to know the initiatory pleadings because there are certain requirements
mandated by law to be complied with (cert. of non-forum shopping and payment of docket fees).
xxx ________________________________________ xxx _________________________________xxx

Rule 8 Section 3: Conditions precedent

In a pleading a general averment of the performance or occurrence of all conditions

precedent shall be sufficient.

The first pleading is of course the complaint. It is a pleading that contains the cause of
action; excluding evidentiary matters. And what are the ultimate facts that should be alleged in
the complaint? Of course you have to refer now to the essentials of a cause of action, (1) the
names of the parties, thats the plaintiff and the defendant; (2) their respective residence; (3)
the right of the plaintiff; (4) the violation by the defendant; (6) and also an allegation
concerning the compliance with all the conditions precedent.

It is enough if the plaintiff in his complaint will simply allege that all conditions
precedent have been satisfied? That is not enough. He should enumerate what these
conditions precedent are. So if one of the conditions precedent is prior barangay conciliation,
the plaintiff should allege that he has undergone prior barangay conciliation. He cannot simply
state in the complaint that all conditions precedent have been satisfied.

xxx ________________________________________ xxx _________________________________xxx

Rule 8 Section 4: Capacity

Facts showing the capacity of a party to sue or be sued or the authority of a party to sue
or be sued in a representative capacity or the legal existence of an organized association of
persons that is a made a party, must be averred. A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to sue or be sued in a representative
capacity, shall do so by specific denial, which shall include such supporting particulars as are
peculiarly with the pleaders knowledge.

The capacity to sue also of the plaintiff must be averred with particularity. And this has
distinct application to artificial persons like a corporation, or a partnership. There must be an
allegation that they possess personality to do business in the Philippines. When it comes to a
foreign corporation, there must be a particular allegation that is a foreign corporation licensed
to do business in the Philippines. Without these particulars in the complaint, again the
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allegation concerning the capacity to sue is not satisfied, the party may be required to amend
the pleading, or the court may even dismiss the complaint for inadequacy of the allegations
contained in the complaint.

xxx ________________________________________ xxx _________________________________xxx

Ultimate facts; No sanction for alleging evidentiary matters

Rule 8 Section 1

Every pleading shall contain in a methodical and logical form, a plain, concise and direct
statement of the ultimate facts on which the party pleading relies for his claim or defense, as
the case may be, omitting the statement of mere evidentiary facts.

If a defense relied on is based on law, the pertinent provisions thereof and their
applicability to him shall be clearly and concisely stated.

Although the rules preclude evidentiary matters from being alleged in a complaint, or
for that matter in a pleading, there is no sanction at all imposed by the court if these
evidentiary matters so alleged. What the rules simply tells us is that only ultimate facts must
averred excluding evidentiary matters there is no penalty imposed if the pleading contains, in
addition to the ultimate facts, certain evidentiary matters. In fact in summary procedure, in
cases governed by summary procedure, it is advisable to include complaint allegations
concerning evidentiary matters, because there is no trial that is held by the court in cases
governed by summary procedure.

xxx ________________________________________ xxx _________________________________xxx

Rule 7 Section 2(c): Relief

The pleading shall specify the relief sought, but it may add a general prayer for such
further or other relief as may be deemed just or equitable.

The complaint must also contain a relief that is the relief sought by the plaintiff. But
even if the complaint does not contain a paragraph concerning relief, which he seeks from the
court, the court cannot dismiss the complaint on this basis. The absence of a prayer or a relief
that is sought by the plaintiff is not a substantial defect of that complaint.

COMMENT:

The BODY sets forth:

1. Its designation;
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 2. The allegation of the partys claim and defenses;

3. The relief prayed for; and

4. The date of the pleading;

Note: It is not the caption of the pleading but the allegations therein which determine the nature
of the action and the court shall grant the relief warranted by the allegations and proof even if no
such relief is prayed for (Riano, 2007, p. 46)

xxx ________________________________________ xxx _________________________________xxx

Rule 6 Section 2: Pleadings allowed; claim pleadings and responsive pleadings

The claims of a party are asserted in a complaint, counterclaim, cross claim, third(fourth etc.)-
party complaint, or complaint in intervention.

The defenses of a party are alleged in the answer to the pleading asserting a claim against him.

An answer may be responded to by a reply.

Rule 6 up to 10 give a classification of pleadings. The first classification is divided into

claim pleading and responsive pleadings. There are nine pleadings in Rule 6 available in civil
cases. Of the nine pleadings mentioned in Rule 6, seven of them are claim-pleadings. That is,
these are the pleadings that could allege a claim or a cause of action. There are only two
responsive pleadings. And the two responsive pleadings are the answer and the reply.

So on the part of the defending party, it is quite easy for him to choose the responsive
pleading that he should file with the court. He should file only as a responsive pleading, the
answer, because a reply, although it is a responsive pleading, is not available to the defending
party. A reply as a responsive pleading is available only to the plaintiff or to the party who has
submitted a claim. So in so far as the defendant is concerned he has only one responsive
pleading available to set up his defenses. That is the answer. So the pleading that responds to a
complaint is the answer. The pleading that responds to a counterclaim is still the answer. The
pleading that responds to a cross-claim is still the answer. The pleading that responds to a third
party complaint is still the answer. The pleading that responds to a counter claim will still be the
answer. So it is very easy on the part of a defending party to choose the responsive pleading
that is available to him. In fact he does not have any choice at all. He should always file an
answer to a claim pleading.

Initiatory pleadings and non initiatory pleadings basis: existence of a certificate of non-
forum shopping and requirement of payment of docket fees.

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 The other classification of pleadings contained in Rule 7, is the division of pleadings in
initiatory pleadings and non-initiatory pleadings. The classification of pleading into initiatory
and non-initiatory pleadings is founded on the use of a certification on non forum shopping. In
initiatory pleading there is no more need to affix or to attach a certification of non forum
shopping. So if the pleading filed by litigant is an answer, which is not an initiatory pleading, he
does not have to embody in his answer a certification on non-forum shopping. According to the
of Surla, a compulsory counterclaim is a non-initiatory pleading. So if there is an answer filed
by the defendant, which also embodies a compulsory counterclaim, that answer which
embodies a compulsory counterclaim does not have to be accompanied by a certification on
non-forum shopping. But the case of Surla, identified only a compulsory counterclaim as a non
initiatory pleading. A permissive counterclaims is therefore considered as an initiatory
pleading. So if there is an answer which embodies a permissive counterclaim, then the
permissive counterclaim should contain a certificate of non-forum shopping. Otherwise, that
permissive counterclaim will be dismissed.

The division of pleadings into initiatory and non-initiatory pleadings also has something
to do with the payment of docket fees. If a pleading is initiatory in character; docket fees must
be paid. Otherwise, the court will not acquire jurisdiction to hear and decided the claim
contained in this initiatory pleading. Since it is only a compulsory counterclaim that is
considered a non-initiatory pleading; it stands to reason that when a compulsory counterclaim
is embodied in an answer, there is no need for the defendant to file docket fees in relation to
the compulsory counterclaim. But when the defendant embodies in his answer a permissive
counterclaim, a third party complaint or any other claim pleading that is available to him, he
must pay the correlative docket fees, in order to enable the court to acquire jurisdiction over
his claim contained in this initiatory pleading.

COMMENT:

Pleadings allowed

1. Complaint;
2. Counterclaim;
3. Cross-claim
4. Answer;
5. Third-party complaint (fourth etc)
6. Complaint in intervention
7. Reply
8. Counter-Counterclaim;
9. Counter-Crossclaim;
xxx ________________________________________ xxx _________________________________xxx
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Rule 6 Section 4: Answer

An answer is a pleading in which a defending party sets forth his defenses.

The pleading which responds to a complaint is as we said an answer. The defendant

cannot file a reply to a complaint. What the defendant should file is an answer to the
complaint. Supposing the defendant instead of filing an answer to the complaint, files a reply to
the complaint, will it cause prejudice to the defendant? Well according to the Supreme Court, if
the defendant calls his responsive pleading to the complaint erroneously as a reply, but the
allegations contained in that document are defenses set-up by the defendant, the Supreme
Court said that the court may ignore the violation because laws on procedure are liberally
construed. So although the responsive pleading to a complaint is an answer, there seems to be
no harm if the defendant erroneously calls his responsive pleading as a reply to the document.

COMMENT:

Answer is a responsive pleading in which a defending party sets forth his affirmative or negative
defenses. It may or may not contain a counterclaim.

It may likewise be the response to a counterclaim or a cross-claim.

xxx ________________________________________ xxx _________________________________xxx

Rule 6 Section 5: Defenses;

Defenses may either be negative or affirmative.

(a) A negative defense is the specific denial of the material fact or facts alleged in the
pleading of the claimant essential to his cause or causes of action.

(b) An affirmative defense is an allegation of a new matter which, while hypothetically

admitting the material allegations in the pleading of the claimant, would nevertheless
prevent or bar recovery by him. The affirmative defense include fraud, statute of
limitations, release, payment, illegality, statute of frauds, estoppel, former recovery,
discharge in bankruptcy, and any other matter by way of confession and avoidance.

COMMENT:

Insufficient denial or denial amounting to admissions

1. General denial; and

2. Denial in the form of a negative pregnant.
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Negative Pregnant a form of denial which at the same time involves affirmative implication
favorable to the opposing party. Where a fact is alleged with some qualifying or modifying
language, and the denial is conjunctive, a negative pregnant exist and only the qualification or
modification is denied while the fact itself is admitted. It is said to be a denial pregnant with an
admission of the substantial facts in the pleading responded to. It is not a specific denial and is
actually an admission.
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Rule 8 Section 11: Allegations not specifically denied deemed admitted.

Materials averment in the complaint, other than those as to the amount of unliquidated
damages, shall be deemed admitted when not specifically denied. Allegations of usury in a
complaint to recover usurious interest are deemed admitted if not denied under oath.

The answer as a responsive pleading is designed to contain the defenses to the claim
contained in the complaint. And there are two defenses that could be alleged in an answer, a
negative defense and an affirmative defense or both. There is nothing wrong if the defendant
avails both negative defense and an affirmative defense in his answer. Is it important for the
defendant to know how a negative defense is presented? In so far as the defendant is
concerned, he should know how a negative defense must be presented in court, because if he
presents a negative defense, which is not in accordance with the rules, he is going to lose the
case. A negative defense under our rules pertains to specific denial. And there is a great
difference in so far as our laws are concerned, between a specific denial and a general denial. A
general denial is not allowed by the rules and the sanction for using general denial in the
answer is that the general denial will be considered as an admission of the allegations in the
complaint. And you all know that when there is an admission contained in the pleading that
admission is considered a judicial admission. And under our rules on evidence, a judicial
admission is conclusive upon the admitter. It cannot be rebutted as a general rule unless the
pleader is able to prove that he has committed a mistake in making that allegation. So the
defending party must see to it that in presenting a negative defense he must comply strictly
with the manner by which the rules require negative defense to be presented.

COMMENT:

General Rule: Allegations NOT specifically denied are deemed admitted.

Exceptions:
1. Allegations as to the amount of unliquidated damages;
2. Allegations immaterial to the cause of action; and

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 3. Conclusion of law

Note: Admissions may be withdrawn by amendments. The original pleadings are superseded by
the amended pleading.
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Rule 8 Section 10: Specific Denial

A defendant must specify each material allegation of the fact the truth of which he does not
admit and, whenever practicable, shall set forth the substance of the matters upon which he
relies to support his denial. Where a defendant desires to deny only a part of an averment, he
shall specify so much of it as is true and material and shall deny only the remainder. Where a
defendant is without knowledge or information sufficient to form a belief as to the truth of a
material averment made in the complaint, he shall so state, and this shall have the effect of a
denial.

And how does the rule define what a negative defense or what a specific denial is? In
Rule 8 there are three modes, by which a specific denial should be made by the defending
party. The first one is to deny each and every allegation in the complaint, and as far as
practicable give the reasons upon which he relies for his defenses and the reasons why he is
making that denial. The second mode a part denial and a part admission. And the last mode is a
specific denial for lack of knowledge or information sufficient to form a belief as to the truth or
the falsity of the allegations contained in the complaint.

The defending party is expected to make use of any or some or all of these modes of
denial. The rule does not expressly require that the first mode should be used first, and if it is
not practicable, use the second mode and if it is still not practicable, to use the third mode. As
rule 8 is presently crafted, the defending party is given the choices as to which mode of specific
denial, which his answer could use.

Repercussions of using the third mode of specific denial

Although there is no order of priority mentioned in Rule 8, as to the mode of denial, the
Supreme Court has come with several rulings to the effect that the use of the third mode could
lead to an admission on the part of the defendant. You see the third mode is the most
convenient way to make a specific denial, because all that the defendant needs to state in his
answer is that he is denying each and every paragraph in the complaint because he has no
knowledge or information concerning the truth or falsify of these allegations. The Supreme
Court warned defending parties that the exclusive use of the third mode could be prejudicial to

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the interest of the defending party. The prejudice is in the form of a judicial admission of the
allegations contained in the complaint which are denied for lack of knowledge or information.

For example in a complaint since you have taken up legal forms already and you are
familiar with contents of a pleading, the first paragraph of any complaint will usually allege the
name of the plaintiff, the residence of the, the name of the defendant and the residence of the
defendant. That is always the first paragraph in any initiatory pleading or at least in a complaint.
Then the second paragraph of the complaint will refer to the existence of the right belonging to
the plaintiff. The third paragraph will refer to the violation by the defendant of the right of the
plaintiff. And then the fourth paragraph will probably contain an allegation that barangay
conciliation has been undergone but the parties were not able to settle their differences
amicably. And the fifth paragraph would probably refer to the claim for the payment of
attorneys fees. So in a very simple complaint, there will only be five paragraphs, paragraph 1
up to 5.

The defendant, if he files an answer using the third mode of specific denial, that is
specific denial for lack of knowledge or information, can simply craft an answer in this manner.
Defendant specifically denies paragraph 1 for lack of knowledge or information. Defendants
denies specifically paragraph 2, again for lack of knowledge or information. Defendant also
specifically denies specifically paragraph 3 for lack of knowledge of information and so on. That
is the form of a denial which he makes use of which is theoretically allowed by Rule 8 because
Rule 8 does not require the defending party to have a priority in the modes of denial.

If this manner by which the negative defense or the specific denial is presented by the
defendant, you will clearly notice, that the defendant is not candid, he is not serious in dealing
with the court. If the defendant specifically denies paragraph 1 of the complaint for lack of
knowledge or information in effect he is telling the court that he does not know his name, he
does not even know his residence which is foolish, isnt it? That is why the court has come out
with a decision saying that if the defendant avails of a specific denial using the third mode with
regard to all the allegations contained in the complaint, which is theoretically allowed that will
lead to a judicial admission of the allegations in that complaint. In other words, the message
given by the Supreme Court in these decisions is that the defending party must use the third
mode of specific denial in good faith.

What are the allegations, which could be specifically denied for lack of knowledge or
information? An allegation in the complaint where the plaintiff alleges that he has contracted
to pay his lawyer attorneys fees. That is expected to be unknown to the defendant. So it is that
allegation which could be specifically denied for lack of knowledge or information. The

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allegations contained in the complaint concerning the plaintiffs claim for damages, that could
also be specifically denied for lack of knowledge or information.

Supposing that in the answer filed by the defendant, again making use of our complaint,
the defendant simply states in his answer. The defendant specifically denies paragraph 1 of
the complaint. The defendant specifically denies paragraph 2 of the complaint. The defendant
specifically denies paragraph 3 of the complaint . Will that be a specific denial? The answer is
NO. That is a general denial. Even if the defendant makes use of the words specific denial,
that will not be an adequate negative defense because what the rules requires, is that after the
specific denial the defendant must state the reasons why he is making such a denial. He must
state the facts upon which he should rely upon in his defense. That is the reason why in our
study of legal forms; a denial by the defendant of a certain paragraph of the complaint, is
always accompanied by the phrase the truth being that so and so. and then he states the
allegations upon which he relies upon for his defense. Again the rule is settled that if the
defendant does not adequately allege in his answer, which contains a negative defense, the
matters upon which he relies in making a specific denial, the consequence is that the denial will
be considered as a general denial. And a general denial means a judicial admission of the
allegations contained in the complaint.

Why is it wrong for the defendant to make a general denial of the allegations contained
in the complaint? If he makes a general denial and the law considers the allegations in the
complaint as having been judicially admitted then the court will have nothing to try at all.
Instead, the court upon motion of the plaintiff can simply render a judgment on the pleadings.
And a judgment on the pleadings will always be favorable to the plaintiff. So that is the adverse
consequence of an answer, which contains a negative defense does not satisfy the
requirements of a specific denial in Rule 8.

Concept of negative pregnant

This principle of specific denial also gives us the concept of a negative pregnant. The
word pregnant does not of course refer to the condition of a woman. If you go to the
dictionary, pregnant means silence, which is suggestive of an unexpressed feeling. That is the
meaning of pregnant in the dictionary. So in pleading, if there is a negative pregnant, the
defendant is really silent as to whether or not he is denying or admitting, the allegations in the
pleading, which is not allowed by the rules. He should state expressly and firmly whether or not
he is specifically denying certain allegations in the complaint. He should not leave matter to the
court and let the court guess whether or not he is denying or admitting certain allegations. That
is the duty of the defending party. There are some court decisions to the effect that a mode of
specific denial, in mode #3, that is denial for lack of knowledge or information could be
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considered as a negative pregnant. That is, it will result again to a judicial admission of the
allegations contained in the pleading.

COMMENT:

Three ways of making a specific denial

1. Specific Absolute Denial by specifically denying the averment and, whenever

practicable, setting forth the substance of the matters relied upon for such denial

2. Partial Specific Denial part admission and part denial;

3. Disavowal of knowledge by an allegation of lack of knowledge or information sufficient

to form a belief as to the truth or falsity of the averment in the opposing partys pleading.

This does not apply where the facts as to which want of knowledge is asserted is, to the
knowledge of the court, so plain and necessarily within the defendants knowledge that his
averment of ignorance must be palpably untrue.

xxx ________________________________________ xxx _________________________________xxx

Rule 6 section 5 (b) Affirmative Defense

(b) An Affirmative Defense is an allegation of a new matter which, while hypothetically

admitting the material allegations in the pleading of the claimant, would nevertheless prevent
or bar recovery by him. The affirmative defense include fraud, statute of limitations, release,
payment, illegality, statute of frauds, estoppel, former recovery, discharge in bankruptcy, and
any other matter by way of confession and avoidance.

An affirmative defense on the other hand, is an allegation, which admits the allegations
in the complaint hypothetically. But the defendant sets up new matters, which will avoid his
liability in favor the claimant. So contrasted to a negative defense, which denies the allegations
in the complaint an affirmative defense admits the allegations in the complaint. But the
defendant still tells the court, Although the allegations in the complaint are true, I am still not
liable for the claim contained in the complaint.

To illustrate, in a complaint for the recovery of money, the plaintiff will of course allege
the matters we said a while ago. The names and residence of the parties, the fact that
defendant borrowed money from the plaintiff, that the loan has become due but fell the loan
has been defaulted and so on and so forth, together with the conditions precedent.

In a negative defense, the defendant will tell the court I specifically deny that I
borrowed money from the plaintiff, the truth being that. . . (then he will state the grounds upon
99
which he is going to rely for his defense). In an affirmative defense, the defendant will tell the
court, I admit that I borrowed from the plaintiff, but I am not liable to pay the plaintiff
because I have paid the loan. That is an affirmative defense. There is an admission of the
allegations in the complaint, but he is going to introduce new matters that will release him from
liability.

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Rule 9 Section 1: Defenses and Objections not pleaded

Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed
waived. However, when it appears from the pleadings or the evidence on record that the court
has no jurisdiction over the subject matter, that there is another action pending between the
same parties for the same cause, or that the action is barred by a prior judgment or by statute
of limitations, the court shall dismiss the claim.

Can the defendant under the circumstances, make use of both a negative and an
affirmative defense? In other words, can he submit properly to the court an answer, which
says: 1. The defendant specifically denies that he obtained a loan from the plaintiff(then he
gives the basis for his denial, the matters upon which he relies for that denial.). 2. The
defendant admits that he obtained a loan from the plaintiff(but he is still not liable for the
payment of this loan because of certain defenses). You will notice immediately that in that
answer, the defendant is making inconsistent statements. In his first defense, he denies having
obtained a loan from the plaintiff. But in his second defense, he admits having obtained a loan
from the plaintiff. Can the defendant submit the court an answer containing these inconsistent
defenses? The answer is YES. In fact, he should submit all defenses available to him in his
answer because if he fails to allege a defense in his answer, he is deemed to have waived these
defenses.

So the rules encourage a defendant to incorporate in his responsive pleading all

defenses available to him, although these defenses may be inconsistent with one another. So
even if a negative defense is inconsistent with an affirmative defense, the defendant must
incorporate all the defenses available to him, at the time of the filing of the answer. Otherwise,
the defenses that are left out are deemed waived. Meaning to say that these defenses can no
longer be proven during trial of the case.

COMMENT:

General rule: Defenses and objections not raised in a MOTION TO DISMISS or in the
ANSWER are deemed waived.

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Exceptions:

1. Lack of jurisdiction over the subject matter;

2. Litis Pendentia;
3. Res Judicata;
4. Prescription of the action.

The court shall dismiss the claim if any of foregoing grounds appears from the pleadings or
the evidence on record.
These defenses may be raised at any stage of the proceedings even for the first time on
appeal EXCEPT that lack of jurisdiction over the subject matter may be barred by laches.
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Rule 8 Section 7: Action or defense based on document

Whenever an action or defense is based upon a written instrument or document, the substance
of such instrument or document shall be set forth in the pleading, and the original or a copy
thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of
the pleading, or said copy may with like effect be set forth in the pleading.

Between the plaintiff and the defendant, we also have the rule on actionable
document. An actionable document is a document that is the basis of the claim or a defense.
So it is not correct to say that an actionable document is available to the plaintiff only. An
actionable document is also available to the defendant. If the defense or the cause of action is
founded upon a document, that document is an actionable document. Then how does the
pleader allege an actionable document? Under the rules, there are two ways by which an
actionable document could be alleged. We copy the substance of the actionable document,
and then attach to the pleading a Xerox or the original thereof. So if the actionable document is
a promissory note, the plaintiff can give the substance of the promissory note in the complaint,
and later on attach to the complaint a Xerox copy of the promissory note as an annex: or if the
plaintiff does not feel like attaching a copy of the promissory note to his complaint, he can
simply copy word for word verbatim, the contents of the promissory note in his complaint.
That will also satisfy the requirements on how actionable document should be alleged.

COMMENT:

Actionable Document refers to a written instrument upon which the action or defense is based.

Two permissible ways of pleading an actionable document

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 1. By setting forth the substance of such document in the pleading and attaching said
document thereto as an exhibit (contents of the document annexed are controlling, in case
of variance in the substance of the document set forth in the pleading and in the document
attached); or

2. By setting forth said document verbatim in the pleading.

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Rule 8 Section 8: How to contest such documents

When an action or defense is founded upon a written instrument, copied in or attached to the
corresponding pleading as provided in the preceding section, the genuineness and due
execution of the instrument shall be deemed admitted unless the adverse party, under oath,
specifically denies them, and sets forth what he claims to be the facts; but the requirement of
an oath does not apply when the adverse party does not appear to be a party to the instrument
or when compliance with an order for an inspection of the original instrument is refused.

When it comes to the defending party who is confronted with a complaint where there is an
actionable document that is attached or copied verbatim in the complaint, the law requires that
there must be a specific denial under oath of that actionable document. So in addition to a
specific denial, that denial must be under oath. In other words, this is one situation or instance,
where the pleading, the answer must be verified, because the law requires that the specific
denial must be under oath. Otherwise, if the defendant neglects to comply with this
requirement, the genuineness and due execution of the actionable document are deemed
admitted.

Again the admission here is a judicial admission. The judicial admission will be
conclusive upon the defendant. He can no longer rebut that judicial admission. Well there are
two exceptions mentioned in the rules, that is (1) if in the actionable document, it does not
appear that the defendant is a party, (2) or if the plaintiff refuses to obey an order for the
production of that original document, then the defendant is excused from the consequences
of a failure to specifically deny under oath which will lead to a judicial admission of the
genuineness and due execution of that actionable document.

COMMENT:

How to contest an Actionable Document

1. By specific denial under oath; AND

2. By setting forth what is claimed to be the facts.

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Where the actionable document is properly alleged, the failure to specifically deny under
oath the same result in:
1. The admission of the genuineness and due execution of said document, EXCEPT that an
oath is not required:
a. When the adverse party was not a party to the instrument; OR
b. When compliance with an order for an inspection was refused.
2. The document need not be formally offered in evidence.

Genuineness means that the instrument is:

1. Not spurious, counterfeit, or of different import on its face from the one executed by the
party;
2. That the party whose signature it bears has signed it; and
3. That the time it was signed, it was in words and figures exactly as set out in the
pleadings.

Due execution means that the document was:

1. Signed voluntarily and knowingly by the party whose signature appears thereon;
2. That if signed by somebody else such representative had the authority to do so; and
3. The it was duly delivered, and that the formalities were complied with

The following DEFENSES, not being inconsistent with the genuineness and due execution,
are NOT WAIVED despite failure to specifically deny under oath
1. Fraud;
2. Estoppel;
3. Want or illegality of consideration
4. Mistake
5. Payment
6. Minority or Imbecility
7. Duress
8. Statute of Limitations
9. Compromise

BUT THE following defenses are WAIVED:

1. Forgery in the Signature;
2. Unauthorized signature, as in the case of an agent signing for his principal;
3. The corporation was not authorized under its charter to sign the instrument;
4. Want of delivery; or
5. At the time the document was signed. It was not in words and figures exactly as set out in
the pleading.

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Note: Failure to specifically deny under oath the genuineness and due execution of an actionable
document generally implies an admission of the same by the other party. However, such
IMPLIED ADMISSION IS DEEMED WAIVED if the party asserting the same allowed the
adverse party to present evidence contrary to the contents of such document without objection.

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Rule 6 Section 6: Counterclaim: Section 7: Compulsory Counterclaim

A counterclaim is any claim which a defending party may have against an opposing party.

A compulsory counterclaim is one which, being cognizable by the regular courts of justice,
arises out of or is connected with the transaction or occurrence constituting the subject matter
of the opposing partys claim and does not require for its adjudication the presence of third
parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the
jurisdiction of the court both as to the amount and the nature thereof, except that in original
action before the Regional Trial Court, the counterclaim may be considered compulsory
regardless of the amount.

The other claim pleading is the counterclaim as defined by the rules, is any claim, which
a defending party has against the adverse party. From that definition, it is very clear, that a
counterclaim need not be related to the subject matter of the complaint.

So in a complaint for the recovery of a loan, the defendant can set-up a counterclaim for
the recovery of title to a property. So the complaint may be for money, but the counterclaim
can be an accion reinvindicatoria. There is no requirement that the counterclaim must be
related to the subject matter of the complaint. But if the counterclaim is a compulsory
counterclaim, then it is requires that the subject matter of the counterclaim must be related to
the subject of the complaint.

When it comes to the classification of a counterclaim into permissive and compulsory, a

counterclaim may be compulsory before a Regional Trial Court, but the same counterclaim may
be permissive before an inferior court. So you should always analyze a problem that presents a
counterclaim, so that youll be able to determine whether the counterclaim is compulsory or
permissive.

A counterclaim again, may be compulsory before a Regional Trial Court, but the same
counterclaim will only be a permissive counterclaim before an inferior court. Now the usual
example of a compulsory counterclaim setup by the defending party, is when the defendant
alleges that the filing of the complaint is malicious, it is without basis. And the filing of such

104
malicious complaints has compelled the defendant to retain the services of counsel, and he has
agreed to pay his counsel a certain amount. That is usually the compulsory counterclaim that is
embodied in an answer.

When amount involved in a compulsory counterclaim is below the jurisdictional amount

cognizable by the Regional Trial Court.

Let us say that the case is pending before a Regional Trial Court, accion reinvindicatoria
recovery of title to property. The defendant in his answer gives his defenses either a negative or
affirmative defense, and then he sets-up his compulsory counterclaim. He calls his
counterclaim, and he tells the court, the filing of this complaint for the recovery of title is
baseless. It is a malicious complaint against me, designed only to degrade my reputation, and
therefor I have suffered damages in the sum of P100,000. And also by reason of malicious filing
of the complaint I was forced to hire a lawyer for a fee of another P100,000. The totality of the
figures in the compulsory counterclaim is only P200,000 and the case is pending before a
Regional Trial Court. Is the counterclaim even if the amount is well below the figure that is
triable/cognizable by a Regional Trial Court? See BP 129 the claim must exceed P400, 000
before the Regional Trial Court can acquire jurisdiction over the cases if there is a compulsory
counterclaim for only P200,000, does the Regional Trial Court acquire jurisdiction to try that
compulsory counterclaim? The answer is YES. Even if the amount of the compulsory
counterclaim is below the jurisdiction of the Regional Trial Court, as long as it is a compulsory
counterclaim, the Regional Trial Court has jurisdiction. The basis according to the Supreme
Court is that the compulsory counterclaim is only incidental. It is only ancillary to the subject
matter of the complaint.

When amount involved in compulsory counterclaim is beyond the jurisdiction amount

cognizable by the inferior court.

We change the facts a little bit. The case is now pending before an inferior court. Still an
accion reinvindicatoria, but the assessed value of the property is only P5, 000. You know very
well in accion reinvindicatoria, where the assessed value of the property is only P5, 000. It is the
inferior court that has exclusive original jurisdiction to try the case. Do not of the impression
that accion reinvindicatoria is always cognizable by a Regional Trial Court. It depends on the
assessed value of the property, involved. In our example, since the assessed value is only P5,
000 even if the complaint involves title to or possession of real property, the case falls within
the exclusive original jurisdiction of the inferior court. So the case is properly filed before an
inferior court.

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 The defendant also files his answer, setting up negative defense and affirmative
defense. And then in his answer, he sets up what he calls a compulsory counterclaim. The filing
of the complaint is malicious and baseless, by reason of which he has suffered damages in the
sum of P500,00. He was compelled to retain the services of a lawyer for a fee of P100, 000. You
will note that the totality of the amount claimed in the compulsory counterclaim is now P600,
000. But that counterclaim is strictly a compulsory counterclaim because it is related to the
subject matter of the complaint. It could not have arisen where it not for the filing of the
complaint. The question is, does the inferior court have jurisdiction to try the compulsory
counterclaim of P600, 000? The answer is NO. Even if that counterclaim is strictly a compulsory
counterclaim, if the amount sought to be recovered goes beyond the jurisdiction of the inferior
court, the counterclaim ceases to be a compulsory counterclaim. It is now simply considered as
a permissive counterclaim. And therefore in the example, the plaintiff can file a motion to
dismiss this counterclaim for lack of jurisdiction.

What is the basis in making a fine distinction between a compulsory counterclaim filed
before Regional Trial Court, and a compulsory counterclaim filed before an inferior court, when
the only difference is the amount involved? Both counterclaims are related to the subject
matter of the complaint. The reason given by the Supreme Court is that an inferior court is a
court of limited jurisdiction.

COMMENT:

Counterclaim is any claim which a defending party may have against an opposing party.

Nature of a counterclaim

It partakes of a complaint by the defendant against the plaintiff or a cross-claimant.

Although it may be alleged in the answer, it is not part of the answer. Upon its filing the same
proceeding are had as in the original complaint. For this reason, it must be answered within ten
(10) days from service.

It is an initiatory pleading. A counterclaim is considered a complaint, only this time, it is

the original defendant who becomes the plaintiff. It stands on the same footing and is to be tested
by the same rules as if it were an independent action.

In this connection, in filing a counterclaim, docket fee is required to be paid and a

certification of non forum shopping has to be attached.

Counterclaim may either be:

1. Compulsory; or
2. Permissive.
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Compulsory Counterclaim is one which, being cognizable by the regular courts, arises out of or
is connected with the transaction or occurrence constituting the subject matter of the opposing
partys claim and does not require for its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction.

Requisites of a compulsory counterclaim

1. It must arise out of, or be necessarily connected with, the transaction or occurrence that is
the subject matter of the opposing partys claim.
2. It does not require for its adjudication the presence of third parties of whom the court
cannot acquire jurisdiction;
3. It must be within the jurisdiction of the court; and
4. It must be cognizable by the regular courts of justice.

Rules on Compulsory Counterclaim

A counterclaim before the MTC must be within the jurisdiction of said court, both as to
the amount and nature thereof.
In an original action before the RTC, the counterclaim may be considered compulsory
regardless of the amount.

Illustration: In accion publiciana filed with the RTC where the value of the land is P1M and
defendant claims for reimbursement of P50,000, the reimbursement would be considered as
compulsory because the original action was filed with the RTC.

However the nature of the action is always material such that unlawful detainer cannot be
set up in the RTC.
If a counterclaim is filed in the MTC in excess of its jurisdictional amount, the excess in
considered waived.
The remedy where a counterclaim is beyond the jurisdiction of the MTC is to set off the
claims and file a separate action to collect the balance.
A plaintiff who fails to or chooses not to answer a compulsory counterclaim may not be
declared in default, principally because the issues raised in the counterclaim are deemed
automatically joined by the allegations of the complaint.

General Rule: A compulsory counterclaim not set up in the answer is deemed barred.

Exceptions:

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 1. If it is a counterclaim which either matured or was acquired by a party after serving
his answer. In this case, it may be pleaded by filing a supplemental answer or
pleading before judgment with the permission of court. (Sec. 9, Rule 11)

2. When a pleader fails to set up a counterclaim through oversight, inadvertence,

excusable negligence, or when justice requires, he may, by leave of court, set-up the
counter claim by amendment of the pleadings before judgment.

Permissive Counterclaim when any of the elements of a compulsory counterclaim is absent.

Distinction Permissive Counterclaim from Compulsory Counterclaim

Permissive Counterclaim
1. It does not arise out nor is it necessarily connected with the subject matter of the
opposing partys claim.
2. It may require for its adjudication the presence of third parties over whom the court
cannot acquire jurisdiction;
3. It is NOT barred even if not set up in the action;
4. It is considered an initiatory pleading;
5. It should be accompanied by a certification against non-forum shopping and whenever
required by law, also certificate to file action issued by Lupong Tagapamayapa.
6. It must be answered by the party against whom it is interposed otherwise he may be
declared in default as to the counterclaim;

Compulsory Counterclaim
1. One which arises out of or is necessarily connected with the transaction or occurrence
that is the subject matter of the opposing partys claim;
2. It does not require for its adjudication the presence of third parties of whom the court
cannot acquire jurisdiction;
3. It is barred if not set up in the action;
4. It is not an initiatory pleading;
5. It does not require the certificate.
6. A compulsory counterclaim that merely reiterates special defenses are deemed
controverted even without a reply. In such a case, failure to answer may not be a cause
for a declaration of default.

The filing of a motion to dismiss and the setting up a compulsory counterclaim are
incompatible remedies. A party who desires to plead a compulsory counterclaim should not file
a motion to dismiss. If he files a motion to dismiss and the complaint is dismissed there will be
no chance to invoke the counterclaim.
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Effect of the counterclaim when the complaint is DISMISSED.

1. The dismissal of the complaint where the defendant has previously filed an answer and a
counterclaim, whether compulsory or permissive shall allow the latter to prosecute the
counterclaim whether in the same or a separate action, notwithstanding such dismissal:

a. If no motion to dismiss has been filed, any of the grounds for dismissal provided for
in this Rule may be pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had thereon as if a motion to
dismiss had been filed. If during the hearing on the affirmative defenses, the court
decides to dismiss the complaint, the counterclaim pleaded in the answer, compulsory
or permissive is not dismissed.

b. Where the plaintiff himself files a motion to dismiss his own complaint after the
defendant has filed an answer with counterclaim, the dismissal shall be without
prejudice to the right of the defendant to prosecute his counterclaim in a separate
action unless within fifteen (15) days from notice of the motion, he manifest his
preference to have his counterclaim resolved in the same action;

c. Where the complaint is dismissed due to the plaintiffs fault and at a time when a
counterclaim has already been set up. The dismissal is also without prejudice to the
right of the defendant to prosecute his counterclaim in the same or separate action.
xxx ________________________________________ xxx _________________________________xxx

Rule 6 Section 8: Cross-claim counterclaim vs. Cross-claim: principle of ancillary

A cross claim is any claim by one party against a co-party arising out of the transaction or
occurrence that s the subject matter either of the original action or of a counterclaim therein.
Such cross claim may include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the action against the cross-
claimant.

The next claim pleading after counterclaim is a cross claim. The difference between a
counterclaim and a cross-claim is evident in the rules themselves. A cross claim is a claim by
one party against a co-party. Therefore, before we can make use of a cross claim in any
litigation, there must be at least two defending parties. We cant have a cross-claim if there is
only one defendant. There must be plurality of defendants. And one of the defendants files a
cross-claim against co-defendant.
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 Another evident distinction between a cross claim and a counter claim is that a
counterclaim may be totally unrelated to the subject matter of the complaint. But in a cross
claim, the subject of a cross claim may be related to the subject matter of the complaint. Just
like in a third party complaint, or other claim pleadings, the amount that is sought to be
recovered by the cross claimant from the cross-defendant, will not affect the jurisdiction of the
court.

For instance, if there is a complaint filed by A for the recovery of P700, 000 against B
and C, the co-defendants, and which case is therefore filed before a Regional Trial Court. B can
file a cross claim against C for the recovery of the entirety of the P700, 000 or B can file a cross
claim against C for the recovery of P100, 000. In the latter case, if the cross claim by B against C
is only for the recovery of P100, 000, the Regional Trial Court would still have jurisdiction to try
and decide the cross-claim for the recovery of P100, 000, although under BP 129, it is clearly
provided that a claim for this amount is exclusively cognizable by an inferior court. The reason
is that a cross claim is only ancillary to the complaint. This is an application of the ancillary
jurisdiction of a Regional Trial Court. All ancillary claims will fall within the jurisdiction of the
court as long as the court has jurisdiction over the subject matter of the complaint.

COMMENT:

CROSS CLAIM is any claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a counterclaim therein.
Such cross-claim may include a claim that the party against whom it is asserted is or may be
liable to the cross-claimant for all or part of a claim asserted in the action against a cross-
claimant. A cross claim may be filed against the original cross-claimant.

Requirements for a cross claim

1. A claim by one party against the co-party;

2. It must arise out of the subject matter of the complaint or of the counterclaim; and

3. The cross-claimant is prejudiced by the claim against him by the opposing party.

Purpose: To settle in a single proceeding all the claims of the different parties in the case against
each other in order to avoid multiplicity of suits (Republic vs. Paredes, G.R. No. L-12546, May
20, 1960)

If it is not set up in the action, it is BARRED.

Except:

1. When it is outside the jurisdiction of the court; or

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 2. If the court cannot acquire jurisdiction over third parties whose presence is necessary for
the adjudication of said cross-claim. In which case, the cross claim is considered
PERMISSIVE; or

3. Cross claim that may mature or may be acquired after service of the answer (Riano, 2007,
p. 285)

The dismissal of the complaint carries with it the dismissal of a cross claim which is purely
defensive, but not a cross claim seeking an affirmative relief.

Distinctions Cross Claim, Counterclaim, Third-Party Complaint

Cross Claim

1. Against a co-party;
2. Must arise out of the transaction that is the subject matter of the original action or of a
counterclaim therein;
3. No NEED for a leave of court.

Counterclaim

1. Against an opposing party;

2. May arise out of or be necessarily connected with the transaction or the subject matter of
the opposing partys claim, in which case, it is called compulsory counterclaim, or it may
not in which cases it is called a permissive counterclaim;
3. NO NEED for a leave of court.

Third Party complaint

1. Against a person not a party to the action;

2. Must be in respect of the opponents (Plaintiff claim)
3. Leave of court is NEEDED.

xxx ________________________________________ xxx _________________________________xxx

Rule 6 Section 11: Third, (fourth, etc.) party complaint

A third (fourth, etc.)-party complaint is a claim that the defending party may, with leave of
court, file against a person not a party to the action, called the third (fouth, etc.)-party
defendant, for contribution, indemnity, subrogation or any other relief in respect of his
opponents claim.

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 That principle will also apply to a third party complaint, which is a claim of a defending
party against a stranger to the case, for contribution, indemnity, subrogation or any other
relief in respect to the plaintiffs claim. Just like cross-claim, the subject matter of the third
party complaint must be related to the subject of the complaint itself.

You will notice that when it comes to a third party complaint, the rule says that the filing
of a third party complaint must be with leave of court. That is not a requisite when it comes to
the filing of the other claim pleadings. The filing of a complaint does not need leave of court.
The filing of a counterclaim does not need permission from the court. The filing of a cross-claim
also does not need permission from the court. But when it comes to a third party complaint,
suddenly there is a deviation in the rules. Before a third party complaint could be filed, there
must be a permission or leave given by the court.

Leave of court required in filing a third party complaint

Why do we need a leave of court when it comes to the filing of a third party complaint?
The reason is a third party complaint seeks to bring to the action a stranger to the case. The
stranger is not yet a litigant, and the only way by which the court can acquire jurisdiction over
the person of the stranger is for the court later on to issue summons. The court will require
that before the third party complaint is accepted, the leave of court must first be obtained by
the third party plaintiff. Again the jurisdiction of a court to try and decide a third party
complaint does not depend on the amount which the third party plaintiff seeks to recover from
the third party defendant, just like in a cross-claim. Even if the amount which the third party
seeks to recover is below jurisdiction of a Regional Trial Court, that Regional Trial Court will
have authority to hear and decide the third party complaint.

You will also notice that the rule says third party complaint, fourth party complaint
and the etc. Does it mean to say that these claim pleadings should end up with a fourth
party complaint, or should the court allow a fifth party complaint, a sixth party complaint, a
seventh party complaint? In other words, we cannot place a limitation as to the number of
these complaints that could be filed in one case. Well, there is no limitation. So there could be a
fifth party, sixth party, a seventh party complaint as long as the subject matter of this pleading
is related to the subject matter of the original complaint.

COMMENT:

Third Party Complaint is a claim that a defending party may, with leave of court, file against
a person not a party to the action for contribution, indemnity, subrogation, or any other relief, in
respect of his opponents claim. There could also be a fourth etc. party complaint with the
same purpose and function.
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Test to determine whether the third party complaint is in respect of plaintiffs claim

1. Whether it arises out of the same transaction on which the plaintiffs claim is based, or
although arising out of another or different transaction, is connected with the plaintiffs
claim;

2. Whether the third-party defendant would be liable to the plaintiff or to the defendant for
all or part of the plaintiffs claim against the original defendant; and

3. Whether the third party defendant may assert any defenses which the third party plaintiff
has or may have to the plaintiffs claim.

Leave of court to file a third party complaint may be obtained by motion under Rule 15.

Summons on third, fourth, etc-party defendant must be served for the court to obtain
jurisdiction over his person, since he is not an original party;

Where the trial court has jurisdiction over the main case, it also has jurisdiction the third
party complaint, regardless of the amount involved as a third party complaint is mere
auxiliary to and is a continuation of the main action (Republic vs. 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
Custom vs. Cloribel, G.R. No. L-21036, June 30, 1997)

Distinction Third-Party Complaint from Complaint in-Intervention

Third Party Complaint

1. Brings into the action a third person who was not originally a party;

2. Initiative is with the person already a party to the action.

Complaint In-Intervention

1. Brings into the action a third person who was not originally a party;

2. Initiative is with a non-party who seeks to join the action;

xxx ________________________________________ xxx _________________________________xxx

Rule 6 Section 9: Counter-counterclaims and counter cross claims

A counterclaim may be asserted against an original counter claimant.

A cross-claim may also be filed against an original cross-claimant.

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xxx ________________________________________ xxx _________________________________xxx

Rule 6 Section 10: Reply

A reply is a pleading, the office or function of which is to deny, or allege facts in denial or
avoidance of new matters alleged by way of defense in the answer and thereby join or make
issue as to such new matters. If a party does not file such reply, all the new matters alleged in
the answer are deemed controverted.

If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such
claims shall be set forth in an amended or supplemental complaint.

The most useless pleading is of course a reply, which is a responsive pleading, because
the rules after defining what a reply is continues with another sentence which says that even if
a reply is not filed, the new matters alleged in the answer are deemed controverted. So the
plaintiff does not have to file a reply to an answer even if the answer contains new matters in
avoidance of the claim of the plaintiff. The absence of a reply by the plaintiff means that the
plaintiff has controverted the assertions of the defendant.

Reply is MANDATORY when answer is founded on actionable document

For instance in the case we had a while ago, where the plaintiff files a complaint for the
recovery of money, and the defendant sets-up the affirmative defense that the loan has been
paid by the defendant. That is a new matter that is introduced by the answer. Should the
plaintiff file a reply in order to controvert that new matter? The answer is NO. Even if the
plaintiff fails to file a reply to controvert this allegation of payment, the allegation of payment is
deemed controverted. Does it mean to say that there is no occasion where the filing of a reply
becomes mandatory, that is mandatory in the sense that if no reply is filed by the plaintiff, it
could cause him harm or prejudice? The general rule is that the filing of a reply is mandatory.
But it may be mandatory, that is in the sense that if no reply is filed the plaintiff can be
prejudiced in his rights, is that when the answer is founded on an actionable document.

If the answer of the defendant is founded upon an actionable document, the plaintiff
must file a reply. Does the rule require him to do so expressly? Well there is also nothing in the
Rules, which require the plaintiff expressly to file a reply if the answer of the defendant is
founded upon an actionable document. But even in the absence of express requirement, the
plaintiff is still mandated to file a reply because of the principle that an actionable document
must be specifically denied under oath. And the only means by which the plaintiff could make a
specific denial under oath is to file a pleading. And the only pleading that could be used to make
specific denial under oath is a reply. The plaintiff cannot make use of an answer because he is

114
the plaintiff. He cannot make use of this responsive pleading. So the only pleading that is left
for him to use in order to make a specific denial under oath of an actionable document alleged
in the complaint, is a reply. This is the only known instance where the filing of a reply is
mandatory. Mandatory in the sense that if the plaintiff does not file a reply, he is deemed to
have admitted the genuineness and due execution of the actionable document alleged in the
answer.

Supposing the answer of the defendant sets up the defense of usury, is the plaintiff
mandated to file a reply because allegations of usury may need a specific denial under oath just
like an actionable document? That is NO longer true. Before the 1997 Rules were enacted, that
was another instance where the filing of a reply was mandatory. But under the present rules,
there is a need for specific denial under oath in allegations of usury, when these allegations of
usury is found in the complaint. In other words, the answer must be under oath. But when the
allegation of usury is contained in the answer, as a defense, the law does not require that there
must be specific denial under oath of the allegation of usury.

But if the allegation of usury by the defendant is contained in a claim pleading like a
counterclaim, or a cross-claim, then there must be a specific denial under oath. But if it is
contained in a counterclaim, the responsive pleading to a counterclaim is not a reply. It is still
an answer. So under the present dispensation as crafted in the 1997 Rules, it is only an
allegation of usury contained in a complaint, which needs a specific denial under oath. If the
allegation of usury is contained in an answer and set up as a defense, there is no need for the
plaintiff to make a specific denial under oath. Even if NO reply is filed by the plaintiff, the
plaintiff is deemed to have controverted this allegation of usury.

COMMENT:

REPLY is the response of the plaintiff to the defendants answer, the function of which is to
deny or allege facts in denial or in avoidance of new matters alleged by way of defense in the
answer and thereby join or make issue as to such new matters.

Effects of failure to file a Reply

General Rule: Filing a reply is merely optional. New facts that were alleged in the answer are
deemed controverted should a party fail to reply thereto.

Exceptions: Reply is required

1. Where the answer is based on an ACTIONABLE DOCUMENT; and

2. To set up AFFIRMATIVE DEFENSES on the counterclaim

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Note: Only allegations of usury in a COMPLAINT to recover usurious interest are deemed
admitted if not denied under oath. Hence, if the allegation of usury is contained in an answer, it
is not necessary for the plaintiff to file a reply thereto in order to deny that allegation under oath.
(Regalado, p. 146)

xxx ________________________________________ xxx _________________________________xxx

Rule 6 Section 12: Bringing new parties

When the presence of parties other than those to the original action is required for the
granting of complete relief in the determination of a counterclaim or cross-claim, the court shall
order them to be brought in as defendants, if jurisdiction over them can be obtained.

xxx ________________________________________ xxx _________________________________xxx

Rule 6 Section 13: Answer to third (fourth, etc.) party complaint

A third (fourth, etc)-party defendant may allege in his answer his defenses,
counterclaims or cross claims, including such defenses that the third (fourth, etc)-party plaintiff
may have against the original plaintiffs claim. In proper cases, he may also assert a
counterclaim against the original plaintiff in respect of the latters claim against the third party
plaintiff.

xxx ________________________________________ xxx _________________________________xxx

Rule 8 Section 12: Striking out of pleading or matter contained therein

Upon motion made by a party before responding to a pleading or, if no responsive pleading is
permitted by these Rules, upon motion ,made by a party within twenty (20) days after the
service of the pleading upon him, or upon the courts own initiative at any time, the court may
order any pleading to be stricken out or that any sham or false, redundant, immaterial,
impertinent, or scandalous matter be stricken out therefrom.

Because the preparation of a pleading is absolutely under the control of the pleader,
does it mean to say that he can allege any matter which he feels like doing so? Well there are
certain limitations. The law does not allow scandalous and indecent matters to be alleged in a
pleading. Supposing the plaintiff submits a complaint that contains scandalous or indecent
matter, what is the recourse of the defendant? Well the defendant can ask the court to strike
out the complaint itself. If the complaint is stricken off, then the case is dismissed. If the court
refuses to strike out the complaint itself, then the defendant can ask the court to strike out the
indecent allegation or scandalous allegation in that complaint.

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 In this situation, will the running of the period to answer be suspended? The answer is
YES. ALTHOUGH the rules again do not expressly say so. if there is a motion filed by the
defendant asking the court to strike out the complaint itself or certain allegations in the
complaint because they are indecent or scandalous, the period to respond is interrupted until
the court has finally resolved the motion. If the defendant fails to file a motion to strike out the
complaint or a part of the complaint that contains scandalous or indecent allegations, can the
court on its own order the striking out of the complaint or these scandalous allegations? The
answer is YES. The court is given authority to strike out the pleading, or the portion of that
pleading containing scandalous or indecent allegations motu propio. That is even without the
motions of the adverse party.

COMMENT:

Allegations of merely evidentiary or immaterial facts may be expunged from the pleading or may
be stricken out on motion.

xxx ________________________________________ xxx _________________________________xxx

Allegations concerning unliquidated damages deemed controverted even if theres no specific

denial.

When it comes to damages, there has also been a change in the rules. In the past
allegations concerning damages are deemed controverted even if there is no specific denial.
Under the present rules, only allegations concerning unliquidated damages are deemed
controverted even if there is no specific denial. So when there is an allegation concerning
liquidated damages, there must be a specific denial, otherwise, the allegation concerning this
liquidated damages are deemed admitted.

Non-waivable defenses

Rule 9 speaks about the defenses that are non-waivable. And we had the occasion to
talk about these non-waivable defenses in previous discussion. And you should know by heart
these non-waivable defenses in civil cases. Absence of jurisdiction over the subject matter.
Litis pendencia, res judicata, and prescription. They are called non-waivable defenses because
even if the adverse party fails to set these up as defense, the court can always order the
dismissal of the complaint as long as the court is convinced that the court does not have
jurisdiction over the subject matter, or prescription has set in, or there is res judicata, or there
is litis pendencia. All other defenses not set-up are deemed waived except these four defenses
in civil cases.

Non waivable defenses in civil cases vs. Non waivable defenses in criminal cases
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 It would also be proper for us to compare these non-waivable defenses in civil cases to
the non waivable defenses in criminal cases. So you might be asked, are there also non
waivable defenses in a criminal cases? The answer is YES. And that is supplied in Rule 117 in
Criminal Procedure. The non-waivable defenses in a criminal case are when the allegations in
the information do not constitute an offense, lack of jurisdiction, double jeopardy and
prescription. So if you make a comparison between the non-waivable defenses in civil cases
and the non waivable defenses in criminal cases, double jeopardy would be equivalent to res
judicata, while prescription in criminal cases is a non waivable defense, prescription is also a
non-waivable defense in a civil case. Litis pendencia is a non waivable defense in a civil case, but
in criminal case it is not even a defense at all. So there is no such thing as litis pendencia as a
defense in a criminal case.

Failure to state a cause of action is a waivable defense under the present Rules

When the information does not charge an offense, the equivalent defense in a civil case
is failure to state a cause of action. You see in the past, before 1997 Rules, failure to state cause
of action could be raised at any stage of the proceedings. So in that context, failure to state a
cause of action may be treated as a non-waivable defense in the old rules. But under the
present rules, failure to state a cause of action is a waivable defense.

So even if the complaint on its face does not state a cause of action, and the court is
convinced that the complaint is inadequate, the court cannot motu propio dismiss the
complaint. The court must wait for a motion coming from the defendant asking for the
dismissal of the case based on failure to state a cause of action.

What is the reason why the court cannot motu propio dismiss a complaint even if it is
clear that this complaint does not state a cause of action? The reason is that, this defect could
be remedied during the trial of the case. Even if a complaint does not state a cause of action, in
the course of the trial, the plaintiff may be able to present evidence that will convince the court
that he now has a cause of action. That is the reason why, failure to state a cause of action is no
longer considered as a non-waivable defense.

xxx ________________________________________ xxx _________________________________xxx

Rule 9 Section 2: Compulsory Counterclaim, or cross claim, not set up barred

A compulsory counterclaim, or a cross claim, not set up shall be barred.

xxx ________________________________________ xxx _________________________________xxx

Rule 9 section 3: Default; declaration of

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If the defending party fails to answer within the time allowed therefor, the court shall, upon
motion of the claiming party with notice to the defending party, and proof of such failure,
declare the defending party in default. Thereupon, the court shall proceed to render judgment
granting the claimant such relief as his pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence. Such reception of evidence may be delegated to the
clerk of court.

Rule 9 speaks about the situation concerning default. In civil cases there is default when
the court issues and order declaring the defendant in default for his failure to file a responsive
pleading the answer, within the reglementary period. The period to answer is either 15 days
or 30 days or 60 days as the case may be, depending on status of defendant as a domestic or
local corporation, or depending on whether summons has been served through publications. So
the period to pled, as we shall see later is either 15 days, or 30 days or 60 days.

Generally it is 15 day period if no answer is filed by the defendant and served upon the
plaintiff within the reglementary period, the recourse available to the plaintiff, is to file a
motion to declare defendant in default. Can the court on its own declare a defendant in default
since the absence of an answer filed within the reglementary period can easily be determined
by going over the expediente, the records of the case? The court does not have that authority.
There must be a motion filed by the plaintiff for the purpose of declaring the defendant in
default.

If the plaintiff is so neglectful that he does not file a motion to declare the defendant in
default, although he knows that there is no answer filed, can the court set the case for pre-trial
so that the case will move? The answer is NO. Unless all the pleadings are in, the court has no
business setting the case for pre-trial. In other words, if the plaintiff is so neglectful that he fails
to file a motion to declare the defendant in default although the plaintiff knows that no such
answer has been filed, we will have a situation where the case will not move at all, that the case
can only move if the defendant decides to file an answer even beyond the reglementary period.

Failure of plaintiff to file a motion to declare defendant in default after a long period of time,
court may resort to Rule 17 for failure of plaintiff to prosecute

Does the court have any option at all if the court waits in vain for the plaintiffs motion
to declare the defendant in default? Well the remedy of the court is just to dismiss the case
under Rule 17 for failure to prosecute. Then the dismissal by the court for failure to prosecute is
a dismissal with prejudice. It will be res judicata that will bar the plaintiff from filing a
subsequent complaint based on the same cause against the same defendant. So the plaintiff
must be alert in filing a motion to declare the defendant in default if the situation calls for the

119
default of the defendant. Otherwise, he will be confronted with a problem where his complaint
will be dismissed with prejudice under the provisions of Rule 117.

If the plaintiff is alert enough and accordingly files a motion to declare the defendant in
default, can he do so through an ex parte motion, given that the defendant anyway has not
filed an answer at all? The present rules do not allow a motion to declare the defendant in
default to be heard ex parte. The defendant must be notified of this motion. There must be a
service of a motion to declare the defendant in default upon the defendant himself. Otherwise,
the court will have no authority to issue an order declaring the defendant in default.

Isnt this requirement unfair to the plaintiff? Here is a situation where the defendant
does not answer within the reglementary period and then the plaintiff files a motion to declare
him in default, and yet, the plaintiff is required to give a copy of his motion to the defendant. If
we give a copy of the motion to the defendant, the defendant can easily preempt the
resolution of the motion by filing the answer right away. Now after receiving the motion to
declare the defendant in default and the defendant files the answer can still the court declare
the defendant in default? The answer is YES. Because default arises from a situation where the
defendant fails to answer within the reglementary period. If the answer is filed beyond the
reglementary period, the court can still properly declare him in default. Although if we are
going to follow jurisprudence, there is no trial court which will declare the defendant in default
if he has filed an answer, even beyond the reglementary period, because the instruction of the
Supreme Court to trial courts, is to be liberal in matters concerning defaults. So if there is no
answer filed within the reglementary period and the plaintiff files a motion for the declaration
of the defendant in default, and the defendant indeed files his answer even beyond this period,
chances are the court will deny the motion. The court will not declare the defendant in default.

Judgment by default in ordinary and summary procedure

If there is really no answer filed by the defendant and he is declared in default, can the
court thereafter render a judgment, a decision by default, even without conducting a hearing?
Well the answer is YES in ordinary procedure. It may also be NO in ordinary procedure,
depending on the discretion of the court. You see under Rule 9, after the court has declared the
defendant in default in ordinary procedure, the court can render judgment by default, even
without conducting a hearing or the court can require the plaintiff to present evidence. And it is
only after the presentation of evidence when the court will render a judgment by default.

So in ordinary procedure, the declaration by the court of default does not necessarily
mean that there will be a judgment by default, immediately. The court is given discretion to

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order the plaintiff to present evidence in support of his allegations in the complaint. This should
be distinguished from summary procedure.

In summary procedure if the defendant does not file an answer within the reglementary
period, the plaintiff is prohibited from filing a motion to declare the defendant in default. A
motion to declare the defendant in default is a prohibited motion in summary procedure. So if
the defendant cannot be ordered in default in summary procedure, what will happen to the
case? The court will simply render judgment based on the allegations in the complaint.

Can the court require the plaintiff to present evidence in support of his allegations in
summary procedure? That is not possible. The court has no authority to do so. in summary
procedure if the defendant does not answer, judgment will be rendered by the trial court. But
in ordinary procedure, if the defendant is declared in default the court retains enough
discretion to order that the plaintiff first present evidence in support of his allegations in the
complaint.

Is it bad for the defendant to be declared in default? Well of course it is bad for the
defendant to be declared in default. Does it mean to say that he has automatically lost the
case? It does not follow also that if the defendant is in default he will automatically lose the
case, because if the court orders the plaintiff to present evidence ex parte to prove his
allegations, and the plaintiff is unable to present this evidence, the court will also be justified in
rendering judgment dismissing the complaint. But generally, if the defendant is declared in
default, the trial court will be of the impression that the allegations contained in the complaint
are true.

You see when a defendant does not answer in ordinary procedure, from the point of
view of the court, there are two possibilities. The first possibility is that, the defendant is not
willing to put up a fight. That is, he admits his liability to the plaintiff. So by implication, he tells
the court Go ahead, decide the case against me. After all, Im not going to put up a fight. The
second possibility is that, the failure of the defendant to file an answer within reglementary
period is by reason of extraneous matters, fraud, accident, mistake, or excusable negligence.
The second possibility is the situation that is contemplated in that excepting rules, where the
court is given enough discretion to order that the plaintiff will present evidence in support of
his allegations.

COMMENT:

DEFAULT is the failure of the defendant to answer within the proper period. It is not his failure
to appear nor failure to present evidence.

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Two stages of default

1. Declaration or Order of default; and

a. Issued by the court, on plaintiffs motion for failure of the defendant to file his
responsive pleading seasonably. Interlocutory (Not appealable)

2. Rendition of Judgment by default.

a. Rendered by the court following a default order or after it received, ex parte,

plaintiffs evidence. Final (Appealable)

Note: Failure of the defendant to attend the pre-trial is a cause for the court to order the plaintiff
to present his evidence ex parte and for the court to render judgment on the basis thereof under
Rules. This consequence is NOT to be called a declaration of default. (Sec. 5 Rule 18)

General Rule: Default order and consequently a default judgment are triggered by the failure of
the defending party to file the required answer. (Sec. 3 Rule 9)

Exceptions: A judgment by default may be rendered in the following cases despite an answer
having been filed:

1. If the party refuses to obey an order requiring him to comply with the various modes of
discovery (Sec. 3(c), Rule 29); or

2. If a party or officer or managing agent of a party willfully fails to appear before the
officer who is to take his deposition (Sec. 5, Rule 29)

Elements of a Valid Declaration of Default:

1. The court must have validly ACQUIRED jurisdiction over the person of the defendant
either by service of summons or voluntary appearance;

2. The defendant FAILS TO ANSWER within the time allowed therefore;

3. There must be a MOTION to declare the defendant in default filed by the claiming party;

4. There must be NOTICE to the defendant by serving upon him a copy of such motion;

5. There must be PROOF of such failure to answer; and

6. There must be HEARING to declare the defendant in default.

Where no DEFAULTS ARE ALLOWED

1. Annulment of marriage;

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 2. Declaration of nullity of marriage;

3. Legal Separation;

4. Special Civil actions of certiorari, prohibition and mandamus where comment instead of
an answer is required to be filed.

5. Summary procedure.

Note: Under A.M. No. 02-11-10-SC (Rule on Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages) which took effect on March 5, 2003, if the defendant-
spouse fails to answer the complaint, the court cannot declare him or her in default but instead,
should order the prosecuting attorney to determine if collusion exists between the parties.
(Ancheta vs. Ancheta, G.R. No. 145370, March 4, 2004)

May a defendant be declared in default while a motion to dismiss or a motion for bill of
particulars remains pending and undisposed of? NO, because the filing of a motion to dismiss
or motion for bill of particulars interrupts the running of the period to answer. It will run again
from the moment defendant receives the order denying the motion to dismiss or for bill of
particulars (Feria, 2001, p. 155)

xxx ________________________________________ xxx _________________________________xxx

Rule 9 Section 3 (a): Effect of order of default

A party in default shall be entitled to notice of subsequent proceedings but not to take part in
the trial.

If the defendant is declared in default, can he participate in the ex parte presentation of

evidence? Well it all depends on how he participates. Definitely the defendant cannot present
his own evidence he has not filed an answer at all. He has no answer and therefor, he has not
set-up any defense at all. But if he is just one of several defendants and he is the defaulting
defendant, the other defendants can utilize him as a witness in the proceeding. There is nothing
in Rule 9 which says that a defaulting defendant is disqualified from testifying during the trial of
the case. But this contemplates a situation where there are two or more defendants in this civil
case.

Although the defendant is in default, he will still be given notice of the orders or
resolutions that will be rendered by the court.

Since it could be very disadvantageous for a defendant to be declared in default, does

he have any remedy at all? Can he assail the validity of the order of default? Can he challenge
the validity of the default order by appealing? The answer in NO. He cannot appeal the order
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declaring him in default because that order is purely interlocutory. What may be appealed are
final orders.

Can he file a motion for new trial? The answer is No. He cannot file a motion for new
trial because a motion for new trial assumes there has been a trial conducted by the court and
there has been a judgment rendered by the court. If there is only a default order, there is no
judgment by default yet. There is difference between an order of default and judgment by
default.

COMMENT:

Effect of an order of default

1. The court shall proceed to render judgment granting the claimant such relief as his
pleading may warrant; OR in its discretion;

2. Shall require the claimant to submit evidence;

3. Loss of standing in court of the defaulting party;

4. Defendant still entitled to notices of subsequent proceedings.

xxx ________________________________________ xxx _________________________________xxx

Rule 9 Section 3 (b): Relief from order of default

A party declared in default may at any time after notice thereof and before judgment file a
motion under to set aside the order of default upon proper showing that his failure to answer
was due to fraud, accident, mistake or excusable negligence and that he has a meritorious
defense. In such case, the order of default may be set aside on such terms and conditions as the
judge may impose in the interest of justice.

Can the defendant file a motion to lift the order of default? That is the remedy that is
given to him by Rule 9. The defendant can file a motion to lift or set aside the order of default,
that is at any time before the judgment is rendered. But he has to see to it that in that motion,
he submits affidavits of merit, because the grounds that could be relied upon are fraud,
accident, mistake or excusable negligence. And when these grounds are utilized in a motion;
the law requires that there must be affidavits of merit to prove the existence of fraud, accident,
mistake or excusable negligence.

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 Another requirement is that the defaulting defendant must show that he has a
meritorious defense. How does the defendant show that he has a meritorious defense? In
practice if the defaulting defendant files a motion to lift order of default, he usually
accompanies the motion with proposed answer. And that answer the defenses can be set-up,
that can easily convince the court whether the defenses that are going to be set-up are
meritorious. Well if the defendant fails to attach to his motion a copy of the proposed answer
he always embody in the motion itself the defenses, which he intends to set-up. If the motion is
granted.

Just like any other motion, a motion to set aside or to lift order of default can either be
denied or granted by the court. If the court grants the motion then the default order is lifted.
Will the case now be tried by the court? Well the answer in NO. if the default order is lifted, the
defendant must still file his answer, because the reason why he has been declared in default is
that he has dialed to answer within the reglementary period. But if he has accompanied his
motion with the proposed answer, then that proposed answer will be admitted by the court if
the court grants his motion.

Can the plaintiff assails the lifting or setting aside of the default order by appealing? The
answer is NO. An order granting or setting aside an order of default is also interlocutory. It is
not appealable.

If the court denies the motion to set aside the order of default, this time, can the
defendant appeal? The answer is still NO, because the order denying a motion to set aside the
default order is still an interlocutory order.

Can the defendant resort to Rule 65 special civil action of certiorari or prohibition?
Possibly, if he can show that the trial court has acted without jurisdiction, in excess of
jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction. So all he needs
to do when he files a petition under Rule 65 is to use these magic words the court has acted
without jurisdiction, in excess of jurisdiction, or with grave abuse of discretion amounting
to lack of jurisdiction. See in the Supreme Court, if you fail to include that grave abuse of
discretion amounting to lack of jurisdiction, the Supreme Court will deny the petition, because
these are the magic words when you resort to Rule 65.

Recourse of defendant where judgment by default is rendered RULE 37, RULE 38 and RULE
47

After the issuance of the default, assuming that the defendant does not assail the
validity of the order of default the court can now render a judgment by default. Will the

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defendant be furnished a copy of this judgment by default? Of course he will be given a copy.
The defendant will know that there is already a judgment by default rendered against him.

This time can the defendant appeal from that judgment by default? The answer is YES,
he can now appeal from that judgment by default, because it is now a judgment, and
judgments generally are appealable.

Can the default defendant resort to Rule 37, that is file a motion for new trial or a
motion for reconsideration? The answer is also YES. Can he also resort to Rule 38, relief from
judgment? The answer is also YES, because he is now assailing a judgment on the merits. Can
he later on file a petition to annul a judgment under Rule 47? The answer is also YES.

Right of the defendant to assail a judgment by default depends on whether procedure is

ordinary or summary.

May there be a situation where there is a judgment by default rendered against the
defendant but he cannot avail of Rule 37 that is motion for new trial or reconsideration? Or he
cannot avail of Rule 38 that is relief from judgment? The answer is also YES. In other words, the
availability of these modes to assail a judgment by default depends on the nature of the
proceedings.

If the case is decided under summary procedure, a judgment by default cannot be

assailed by Rule 37 a motion for new trial or a motion for reconsideration. It cannot be
assailed through a petition for relief from judgment under Rule 38. What is our basis in saying
that a judgment by default rendered in a case governed by summary procedure cannot be
assailed under Rule 37 that is a motion for new trial or motion for reconsideration, or under
Rule 38 relief from judgment? Because in summary procedure. Rule 37 is a prohibited motion.
A new trial/consideration under 37 is prohibited in summary procedure. The same is true with
Rule 38, it is also prohibited pleading or motion.

So the availability of remedies to challenge a judgment by default would depend on the

procedure followed by the trial court. if the procedure followed by the court is summary
procedure, the only remedies available to the defaulting defendant would be appeal, which is
not prohibited by summary procedure. There is also a chance that he can file a petition to annul
the judgment under Rule 47 because in the enumeration of prohibited pleadings and motions,
Rule 47 is not a part of the enumeration.

But if the judgment by default is rendered in a case governed by ordinary procedure, the
judgment by default may be challenged under Rule 37, under Rule 38, under Rule 40 that is
appeal and even under Rule 47. So be careful when you are confronted with remedies to assail
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a judgment by default. You must first determine whether or not the court followed summary
procedure or regular procedure.

COMMENT:

Relief from order of default: Motion to Lift Order of Default

Requisites:

1. Verified motion showing, fraud, accident, mistake or excusable negligence; and

2. Meritorious defenses.

In such a case, the order of default may be set aside on such terms and conditions as the judge
may impose in the interest of justice.

Rights of a party in default: Entitled to notice of

1. Motion to declare him in default;

2. Order declaring him in default.

3. Subsequent proceedings; and

4. Service of final orders and judgments;

Note: A defendant declared in default cannot take part in the trial, but he cannot be disqualified
from testifying as a witness in favor of non-defaulting defendants (Cavile vs. Florendo, G.R. No.
73039, Oct. 9, 1987)

If the defendant was declared in default upon an original complaint, the filing of the amended
complaint resulted in the withdrawal of the original complaint. Hence, the defendant was entitled
to file answer to the amended complaint as to which he was not in default.

Note: Judges are admonished against issuing precipitate orders of default as these have the effect
of denying a litigant the chance to be heard and in order to prevent needless litigations in the
appellate courts. While there are instances when a party may properly be defaulted, this should
be the EXCEPTION RATHER THAN THE RULE (Tropical Homes, Inc. vs. Villauz, G.R. No.
40628, Feb. 24, 1989)

xxx ________________________________________ xxx _________________________________xxx

Rule 9 Section 3(c): Effect of partial default

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When a pleading asserting a claim states a common cause of action against several depending
parties, some of whom answer and the others fail to do so, the court shall try the case against
all upon the answer thus filed and render judgment upon the evidence presented.

In Rule 9 there is also a mention of partial default. Partial Default contemplates a

situation where there are two or more defendants. We cannot speak of partial default if there
is only one defendant. There must be plurality of defendants. And two or more defendants are
sued under a common cause of action. So the caption of this case where are going to apply
partial default is plaintiff vs. defendant 1 and defendant 2. And defendant 1 and 2 are sued
under a common cause of action.

If defendant 1 does not answer, but defendant 2 files an answer, can the trial court
validly declare defendant 1 in default? The answer is YES. If defendant 1 does not answer, he
can be declared in default as long as the plaintiff files the correlative motion. After declaring
defendant 1 in default, can the court render a judgment by default against defendant 1? This
time the court cannot do so. The authority of the court in partial default is limited only in
declaring the non-answering defendant in default. After declaring the non-answering defendant
in default, the court cannot render judgment by default against defendant 1.

Since the court cannot render judgment against defendant by default, what should the
court do? The court should try the case based on the answer filed by defendant 2. So there will
still be a trial founded on the defense set-up by defendant 2. If defendant 2 prevails then the
defaulting defendant will also prevail because they are sued under a common cause of action.
Unless the defense set-up by defendant 2 are purely personal to defendant 2.

COMMENT:

Partial Default

1. The pleading asserting a claim states a common cause of action against several defending
parties.

2. Some of the defending parties answer and the others fail to do so; and

3. The answer interpose a common defense.

Effect of Partial Default

The court will try the case against ALL defendants upon the answer of some except where the
defense is personal to the one who answered, in which case, it will not benefit those who did not
answer.

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xxx ________________________________________ xxx _________________________________xxx

Rule 9 Section 3 (D): Extent of relief to be awarded

A judgment rendered against a party in default shall not exceed the amount or be different in
kind from that prayed for nor award unliquidated damages.

COMMENT:

The extent of relief to be awarded in a Judgment by Default shall not:

1. Exceed the amount prayed for; NOR

2. Be different in kind from that prayed for; NOR

3. Award unliquidated damages.

xxx ________________________________________ xxx _________________________________xxx

Rule 9 Section 3 (E): Where n defaults allowed

If the defending party in an action for annulment or declaration of nullity of marriage or for
legal separation fails to answer, the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if there is no collusion, to intervene
for the state in order to see to it that the evidence submitted is not fabricated.

There are certain case enumerated in Rule 9 where we cannot have default although the
defendant neglects to answer, and these are family related cases annulment of marriage,
separation, to declare a marriage null and void. Even if a defendant does not answer, the court
cannot order the defendant in default. In annulment of marriage for instance, if the defendant
does not answer and the court is prohibited from declaring the defendant in default, what is
the plaintiff supposed to do since there is no defense set up by the defendant? Well the
plaintiff should file a motion asking the court to order the prosecutor to make an investigation
whether or not there is collusion between parties. The fact that there is no answer filed by the
defendant in these family related cases, does that mean to say that the case will not move at
all? The next step is for the court to determine whether or not there is collusion between the
plaintiff and the defendant, whether or not the parties are fabricating evidence in support of
the petition to annul the marriage.

In other words even if the defendant does not answer in these special instances, and the
court is prohibited from issuing a default order the court can still schedule the case for pre-trial,
as if an answer had been filed by the defendant. So it is so much unlike a case that is not family

129
related where as we said, if the defendant fails to answer, he can be declared in default and
thereafter render a judgment by default.

xxx ________________________________________ xxx _________________________________xxx

Rule 10 Section 1: Amendments in General; Section 2: Amendments as a matter of right

Amendments in General Pleadings may be amended by adding or striking out an allegation or

the name of any party, or by correcting a mistake in the name of a party or a mistaken or
inadequate allegation or description in any other respect, so that the actual merits of the
controversy may speedily be determined, without regard to technicalities, and in the most
expeditious and inexpensive manner.

Amendments as a matter of right - a party may amend his pleading once as a matter of right at
any time before a responsive pleading is served or, in the case of a reply, at any time within ten
(10) days after it is served.

Rule 10 speaks about amended and supplemental pleadings. In amendment compared

to the filing of supplemental pleadings, the filing of an amended pleading could be a matter of
right. Filing a supplemental pleading can never be a matter of right. Before a supplemental
pleading could be filed, the permission of the court must first be obtained. But when it comes
to filing of an amended pleading. It could be a matter of right, that is, once before a responsive
pleading is filed.

When Rule 10 speaks about amended and supplemental pleadings, the rule does not
limit its coverage only to the complaint. The title is amended pleadings, so it could refer to all
the pleadings enumerated in Rule 6. So a complaint can be amended as a matter of right. An
answer could be amended as a matter of right. A counterclaim could also be amended as a
matter of right. The same is true with a cross claim, with a third party complaint. Even a reply,
could be amended as a matter of right.

But although there is a right given to a pleader to amend his pleading, he must exercise
this right only once. Rule 10 says that a pleading may be amended once as a matter of right,
before a responsive pleading is submitted. And when talk about amended pleadings as a matter
of right before a responsive pleading is filed, we have to relate back to Rule 6. What are these
responsive pleadings? So that we can determine whether or not the amendment is a matter of
right or a matter of discretion.

When we speak about a complaint, a complaint could be amended as a matter of right

once before the answer is filed because it is the answer that responds to a complaint. When it
comes to a counterclaim, a counterclaim could also be amended once as a matter of right
130
before the answer to the counterclaim is filed. So all you have to know is the responsive
pleading corresponding to the pleading sought to be amended. But the amendment is a matter
of right if it is the first amendment.

If the plaintiff files a complaint with one cause of action, can he amend his complaint as
a matter of right by introducing three other causes of action? The answer is YES. When the law
says that a pleader has a right to amend, the pleader is given almost absolute discretion in
determining which charges are going to be made in his complaint. He has the freedom to
change in its entirety the cause of action in his complaint. So if the complaint contains a cause
of action for the recovery of title to property, the plaintiff can amend his complaint by
disregarding his claim for accion reinvindicatoria and changing it with recovery of sum of
money. The right of a pleader to change the allegations in his pleading is practically limitless
when the law gives him the right to do so. But when it is just a matter of discretion, then he has
to get permission from the court and in that sense, it is the court which will determine the
extent of the amendment that could be introduced.

If the defendant files an answer containing a general denial, which is bad for the
defendant, can the defendant amend his answer by converting the general denial into a specific
denial? The answer is YES. As long as he is given the right to amend his answer. Changing of the
denial from a general denial to a specific denial will not harm anybody, that is, if the
amendment is made within the reglementary period given by law. If it is the defendant who
wants to amend his answer by converting the general denial into a specific denial, how much
time does he have? Well we still apply the general principle. He can amend his answer as a
matter of right, once before a responsive pleading is filed. And what is the responsive pleading
to an answer? It is a reply that serve as a responsive pleading to the answer. So the defendant
can amend his answer as a matter of right once before the reply is filed.

How about the reply itself, can the plaintiff amend his reply as a matter of right
considering that there is no more responsive pleading to a reply? Well the answer is also YES.
Even if there is no more responsive pleading to a reply, Rule 10 says that he is given a period of
10 days within which to amend his reply as a matter of right.

Under the Rules the plaintiff to a civil case can amend his complaint once as a matter of
right before a responsive pleading is filed by the defendant, so that if the defendant has already
been declared in default and the plaintiff decides to amend his complaint, notwithstanding the
default order issued by the court and the plaintiff can still amend his complaint as a matter of
right even if the default order has been issued, because no responsive pleading has yet been
filed by the defaulting defendant, the order of default is deemed lifted and the defendant is
given a new reglementary period within which to file an answer to the amended complaint.
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Amendment is still a matter of right even if a motion to dismiss is filed

Another incident that could arise from amendment of complaint after the defendant has
filed a motion to dismiss will have to be resolved in this manner. It is settled that a motion to
dismiss is not a pleading and therefore even if the defendant has filed a motion to dismiss, the
plaintiff still possesses the right to amend his complaint.

In a certain case the defendant, after receiving the summons, filed a motion to dismiss
founded on the failure of the complaint to state a cause of action. The plaintiff
reviewed/analyzed the motion to dismiss filed by the defendant and he was convinced that
there could be some merit to the motion. Instead of opposing the motion to dismiss, the
plaintiff amended his complaint in order to remedy the defects in that complaint cited by the
defendant. Naturally, the defendant resisted. The court said that a motion to dismiss is not a
pleading and therefore the presence of a motion to dismiss does not prevent the plaintiff from
exercising his right to amend his pleading. Now in this situation, the court will have no other
recourse except to deny the motion to dismiss because the defects cited by the defendant are
already remedied by the amended complaint.

Amendment is still a matter of right even after a motion to dismiss under Rule 16 is granted.

Supposing that in this same example the plaintiff is not convinced about the validity of
the defendants motion to dismiss. So the plaintiff does not amend his complaint instead, he
files an opposition to the motion to dismiss so the court now will have to rule on the merit of
this motion to dismiss. Let us assume that the court indeed dismisses the complaint because
the complaint has failed to state a cause of action. After receiving the order of dismissal
founded on the absence of a cause of action, can the plaintiff still amend his complaint under
Rule 10 as a matter of right? The Supreme Court said YES. Even if the complaint has been
dismissed by reason of a motion under Rule 16 filed by the defendant the plaintiff does not lose
his right to amend his complaint, because the motion to dismiss is not a responsive pleading.
But this time, the court said, but if there is going to be an amendment to the complaint, after
the court has ordered the dismissal of the complaint, the amendment must come before the
order of dismissal becomes final, that is before the lapse of 15 day period the order of dismissal
is entered. So the dismissal of a complaint by reason of a motion to dismiss filed by the
defendant will not deprive the plaintiff of his right under Rule 10 to amend his complaint as
long as the amendment is carried out before the lapse of the 15-day period. The 15-day period
is the period within which to challenge the order of dismissal. You see the order of dismissal of
a complaint by virtue of a motion to dismiss is a final order. It could be assailed either by an
ordinary appeal or by a petition for certiorari as provided in Rule 41. But even before the
plaintiff could avail of any of these remedies he has another remedy. He does not have to go to
132
a higher court and all he needs to do is to amend his complaint to rectify the errors that are
embodied in his original complaint.

xxx ________________________________________ xxx _________________________________xxx

Pleadings may be amended by:

1. Adding an allegation of a party;

2. Adding the name or substitution of a party;
3. Striking out an allegation of a party;
4. Striking out the name of a party;
5. Correcting a mistake in the name of a party;
6. Correcting a mistake or inadequate allegation or description in any other respect.

Types of amendment:
1. Amendment as a matter of right the party has the unconditional right to amend his
pleading. The court has no right to prevent him from amending. The opposite party has
no right to oppose the amendment (if the court refused to admit the amended pleading as
a matter of right, it is correctible by mandamus)
2. Amendment as a matter of Judicial Discretion the court may or may not allow the
amendments. The other party has the right to oppose (Amendment by leave of court)

xxx ________________________________________ xxx

_________________________________xxx

Rule 10 Section 2: Amendment as a matter of right

A party may amend his pleadings once as a matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any time within ten (10) days after it is served.

Amendment is a matter of right before a responsive pleading is served, or in case of a Reply,

within ten (10) days after it was served.
Such right can only be exercised once. Subsequent amendments should be made only by leave of
court even if the other party has not yet served a responsive pleading.

Instances when amendment is a matter of right:

1. Amendment of complaint before an answer is filed;
2. Amendment of answer before a reply is filed or before the period for filing a reply
expires;
3. Amendment of reply any time within tem (10) days after it is served; and
4. Formal Amendment.

Note: A motion to dismiss is not a responsive pleading. As such, an amendment AFTER the
denial of a motion to dismiss is still considered as a matter of right. Hence, it may be done
without leave of court.
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If new causes of action are alleged in the amended complaint filed before the defendant has
appeared in court, another summons must be served in the defendant with the amended
complaint. (Gumabay vs. Baralin GR. No. 30683, May 31, 1977)

Will the order of the court declaring the defendant in default be affected by the
amendment of the complaint? YES, because the amended complaint supersedes the original
complaint. In other words, the order of default is set aside.

Supposing the complaint was amended as a matter of right. Is there a requirement to send
summons anew? NO, based on the following reasons: (Section 3, Rule 11)
- First, answer to amended complaint filed as a matter of right shall be made within 15
days after being served a copy of the amended complaint.
- Secondly, an answer earlier filed may serve as the answer to the amended complaint if
no new answer is filed.

Rule 10 Section 3 Amendments by leave of court

Except as provided in the next preceding Section, substantial amendments may be made only
upon leave of court. But such leave may be refused if it appears to the court that the motion
was made with intent to delay. Orders of the court upon the matters provided in this Section
shall be made upon motion filed in court, and after notice to the adverse party, and an
opportunity to be heard.

Leave of court is required:

1. If the amendment is substantial; and
2. A responsive pleading had already been served.

Note: Even if the amendment is substantial, no leave of court is required if made as a matter of
right (Section 3, 1st sentence says: except as provided in the next preceding section.) In other
words, the consideration should always be whether the responsive pleading has already been
filed or not. If yes, then it is no longer as a matter of right.

Requisites:
1. There must be a motion filed in court;
2. Notice to the adverse party; and
3. Opportunity to be heard afforded to the adverse party.
Instances when amendment by leave of court may NOT be allowed:
1. When the cause of action, defense or theory of the case is changed;
2. Amendment is intended to confer jurisdiction to the court;
3. Amendment to cure a premature or non-existing cause of action; and
4. Amendment for purposes of delay.

xxx ________________________________________ xxx _________________________________xxx

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Rule 10 Section 4: Formal Amendments

A defect in the designation of the parties and other clearly clerical or typographical errors may
be summarily corrected by the court at any stage of the action, at its initiative or on motion,
provided no prejudice is caused thereby to the adverse party.

COMMENT:

A defect in the designation of the parties and other clearly clerical or typographical errors
may be summarily be corrected by the court at any stage of the action, as its initiative or on
motion, provided no prejudice is caused to the adverse party.

xxx ________________________________________ xxx _________________________________xxx

Rule 10 Section 5: Amendment to conform to or authorize presentation of evidence

When issues not raised by the pleadings are tried with the express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to conform to the evidence
and to raise these issues may be made upon motion of any party at any time, even after
judgment; but failure to amend does not affect the result of the trial of these issues. If evidence
is objected to at the trial on the ground that it is not within the issues made by the pleadings,
the court may allow the pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of substantial justice will be subserved
thereby. The court may grant a continuance to enable the amendment to be made.

In Rule 10 we should also pay attention to Section 5 that is amendment to conform to

evidence, which is both procedural in the sense that it is part of Civil Actions and a Rule on
Evidence.

The situation envisioned in Section 5 is one where the evidence presented by a plaintiff
or by the party is not material to the allegations contained in the pleading. Generally, in the
Rules on Evidence, if the evidence submitted by a party has no relation to all to the fact in issue
that evidence is not relevant. And if we are going to apply the first axiom of evidence, any
evidence, that is not relevant should not be admitted by the court.

To illustrate how Section 5 works here is a complaint for the recovery of ownership of a
piece of land. The case is pending before the Regional Trial Court. During the trial, if the only
issue is the ownership of the piece of land, during the trial the plaintiff is expected to present
evidence to show that he is entitled to the ownership. The defendant, on the other hand, is
expected to present evidence related to the fact in issue- that is the ownership of that land.

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Supposing that in the course of the presentation of plaintiffs evidence, the plaintiff submits to
the court a promissory note that is totally unrelated to the ownership of the land. The
promissory note will tend to show that the defendant owes the plaintiff P1M. This claim for
P1M is totally unrelated to the piece of land. Will the court admit the evidence? Well, the
answer will depend on the attitude of the defendant.

If the defendant does not interpose any objection, then the court will admit the
evidence because that is the basic rule in evidence. Evidence which ought not to be admitted
but which is not objected to by the adverse party will be admitted by the court. So if there is
no objection on the part of the defendant, then the court will admit the evidence showing that
the plaintiff is entitled to recover from the defendant P1M.

The trial is concluded and the case is now submitted for decision. Can the court render a
judgment declaring the plaintiff as the owner of the land, which is in the first place the fact in
issue and ordering the defendant to pay P1M although that claim is not embodied in the
complaint? If we are going to apply section 5, thats amendment to conform to evidence, the
court can render a judgment directing/ordering the defendant to pay P1M. Cannot the
defendant later on tell the court But the recovery of P1M is not alleged in the complaint and
therefor the court does not have jurisdiction at all to rule on that issue? According to Section 5,
if an issue is tried with the consent of the parties, expressly or impliedly, the pleading is
deemed to have been amended. And therefor if the pleading is deemed to have been amended
that complaint in the eyes of the court will be deemed to have contained adequate allegations
for the recovery of money. The complaint is deemed amended to conform to the evidence
presented by the plaintiff. But if the defendants objects to the presentation of the promissory
note, the objection will be proper because the issue in our case is only limited to the recovery of
ownership of a piece of land.

If the court refuses to admit the promissory note being offered by the plaintiff, what is
the remedy of the plaintiff if there is any? Again, Section 5 gives to the plaintiff the proper
remedy, the plaintiff can ask the court to authorize him to amend his complaint and the
plaintiff can amend his complaint by introducing a new cause of action that is for the
recovery of P1M. Once the complaint is amended in such a manner that the claim for P1M is
now embodied in the complaint the presentation of the promissory note will now be a relevant
evidence because it has something to do with one of the causes of action alleged in that
amended complaint.

Since the complaint here has been amended, would it be necessary for the court to
issue new summons addressed to the defendant, given that a new cause of action has been
introduced? In one case the Supreme Court said it is no longer necessary because the
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amendment anyway is with leave of court and the defendant is furnished a copy of the
amended complaint. You see in the last example the amendment is carried out during the trial
of the case, which means to say that an answer has already been filed by the defendant that is
why we need permission from the court before the amendment could be effected.

When issues NOT RAISED in the pleadings are tried with express or implied consent of parties:

1. They shall be treated as if raised in the pleadings;

2. Pleadings may be amended to conform to the evidence; and
3. Failure to amend does not affect the result of the trial of these issues.

Note: In Mercader vs. Development Bank of the Phils., the court explained that the foregoing
provision envisions two scenarios - -
First, when evidence is introduced on an issue not alleged in the pleadings and no objection was
interjected; and
Second, when evidence is offered on an issue not alleged in the pleadings but this time an
objection was interpolated. In cases where an objection is made, the court may nevertheless
admit the evidence where the adverse party fails to satisfy the court that the admission of the
evidence would prejudice him in maintaining his defense upon the merits, and the court may
grant him a continuance to enable him to meet the new situation created by the evidence (Azolla
Farms vs. CA GR. No. 138085, November 11m 2004)

Note: At the time of the filing of the complaint, the cause of action must actually exist. If cause
of action accrues after the filing then a party cannot avail of this remedy.

Legal Basis: That which has no cause of action cannot by amendment or supplemental pleading
be converted in a cause of action.

Illustration: The plaintiff sues the defendant before the maturity of the loan. Clearly, there is no
cause of action when the complaint was filed. Thus, if the loan matures after the filing of the
complaint, there is nothing that will conform to evidence since there is no cause of action in the
first place.

xxx ________________________________________ xxx _________________________________xxx

Rule 10 Section 6: Supplemental Pleadings

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just,
permit him to serve a supplemental pleading setting forth transactions, occurrences or events
which have happened since the date of the pleading sought to be supplemented. The adverse
party may plead thereto within ten (10) days from notice of the order admitting supplemental
pleading.
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Supplemental Pleadings those which aver facts occurring after the filing of the original
pleadings and which are material to the matured claims and/or defenses therein alleged.

The cause of action stated in the supplemental complaint must be the same as that stated in the
original complaint. Otherwise, the court should not admit the supplemental pleading.

Amended Pleadings
1. Refers to the facts existing at the TIME of the commencement of action;
2. Takes the place of the original pleading;
3. Can be made as a matter of right as when no responsive pleading has yet been filed;
4. When an amended pleading is filed, a new copy of the entire pleading must be filed,
incorporating the amendments, which shall be indicated by appropriate marks.

Supplemental Pleadings
1. Refers to facts arising AFTER THE FILING of the original pleading;
2. Taken together with the original pleading;
3. Always with leave of court;
4. A supplemental pleading does not require the filing of a new copy of the entire pleading;

xxx ________________________________________ xxx _________________________________xxx

Rule 10 Section 7: Filing Amended Pleadings

When any pleading is amended, a new copy of the entire pleading, incorporating the
amendments, which shall be indicated by appropriate marks, shall be filed.

An amendment which merely supplements and amplifies facts originally alleged in the
complaints relates back to the date of the commencement of the action and is not barred by the
Statute of Limitations which expired after service of original complaint. ( Verzosa vs. CA, GR.
No. 119511-13, November 24, 1998)

xxx ________________________________________ xxx _________________________________xxx

Rule 10 Section 8: Effect of Amended Pleadings

An amended pleading supersedes the pleading that it amends. However, admission in

superseded pleadings may be received in evidence against the pleader; and claims or defenses
alleged therein not incorporated in the amended pleading shall be deemed waived.

Effects of Amended Pleading

1. An amended pleading supersedes the pleading that it amends;

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 2. Admission in the superseded pleading can still be received in evidence against the
pleader but as an extrajudicial admission which must be formally offered in evidence and
proved;
3. Claims and defenses alleged therein but not incorporated or reiterated in the amended
pleading are deemed waived.
xxx ________________________________________ xxx _________________________________xxx

RULE 11

WHEN TO FILE RESPONSIVE PLEADINGS

Rule 11 speaks about the period for the filing of a responsive pleading. If you will recall there are only
two responsive pleadings among the seven that are enumerated in Rule 6 and there are: the answer and
the reply. So Rule 11 is expected to deal with the period within which an answer or a reply should be
filed, the reglementary period. Why did the Supreme Court fail to provide for a period for the filing of a
complaint, after all a complaint is also a pleading and in fact it is a pleading that commences an action in
court? The Supreme Court does not have any authority to fix a period for the filing of a complaint. That
is a matter of substantive law. The Supreme Court only has the authority to fix the period for the filing
of a responsive pleadings and other claim pleadings aside from the complaint. That is also the reason
why in Rule 16 one of the grounds for a motion to dismiss is prescription, and prescription as a ground
for a motion to dismiss has its elements contained in the Civil Code. The prescription of action, so that
the plaintiff must file his complaint in court before his cause of action prescribes. If prescription has set
in and the compliant nonetheless is filed, that complaint could be dismissed either upon motion of the
defendant or upon the courts own motion. Remember Rule 9, Prescription is one of the non-waivable
defenses.

Rule 11 Section 1: Answer to the complaint; Section 11 Extension of time to plead; period to answer in
a case governed by summary procedure cannot be extended.

Answer to the complaint The defendant shall file his answer to the complaint within fifteen (15) days
after the service of summons, unless a different period is fixed by the court.

Extension to plead Upon motion and on such terms as may be just, the court may extend the time to
plead provided in these Rules.

The court may also, upon like terms, allow an answer or other pleading to be filed after the time fixed by
these Rules.

In a matter of extending the period to file an answer it is not always correct to say that the trial
court has authority to extend the period to answer. Again, you have to distinguish whether the case is
governed by summary procedure or by regular procedure. In summary procedure the period is to
respond is non-extendible, it is a period of 10 days. In other words, the trial court in a case governed by
summary procedure cannot extend the 10 day period within which to file an answer.

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 Supposing that in a case governed by summary procedure the defendant files a motion to
extend the period to answer, can the court grant the motion? The court cannot grant the motion. If the
court grants the motion, is the period deemed extended? Even if the court grants the motion the period
is not deemed extended because summary procedure is very clear. The period to answer is a non
extendible period. But in regular procedure the court has discretion to extend the period within which
to answer.

General Rule: Trial Court has no authority to reduce the period within which to answer; Exception
Quo Warranto

Since the Rules allow the trial court in ordinary procedure to extend the period to answer, does
the trial court also possess the authority to reduce the period to answer provided for in the Rules? In
other words instead of giving the defendant a 15-day period, can the court say that the period to answer
is only 10-days? The trial court has the authority to extend the period but it does not give the authority
to reduce the period within which to answer. But this rule is not absolute. Are there civil actions where
the court is given enough authority to reduce the period within which to answer? YES. In Quo Warranto
if you turn your code to Rule 66. In Quo Warranto proceedings, the trial court is given authority to
reduce the period within which to file an answer. But generally, a trial court following summary
procedure, only has the right to extend a period. The trial court does not have the right to reduce the
period fixed in Rule 11 except in Quo Warranto proceedings in Rule 66. If you go to the provisions of
Rule 66 which are very short, it is contained in Section 8 Rule 66 that the court may, if it deems just, fix a
period that is shorter that that provided in the Rules of Court.

Sanctions for failure to comply with Rule 11 Default; no default for failure to answer a compulsory
counterclaim

The sanction for not following Rule 11 on the part of the defending party is of course, default. If
the defendant does not file an answer within the reglementary period as fixed in Rule 11, the usual
sanction is that he will be declared in default. Does the sanction apply to all claim pleadings? If we are
going to follow jurisprudence, it does not apply to all claim pleadings. If the counterclaim set up by the
defendant is a compulsory counterclaim, there is no need for the plaintiff to answer, a compulsory
counterclaim. Even if the plaintiff does not answer a compulsory counterclaim, he cannot be declared
in default.

Trial court exercises discretion whether or not to declare defendant in default for failure to answer a
cross-claim.

In one case decided in 1999, the SC said that if a cross claim is not answered the cross plaintiff
or the cross-claimant can also file a motion to declare the cross defendant in default. But the SC said
the court may or may not grant the order of default. So when it comes to a cross claim it is up to the
trial court to declare the defendant in default if the cross defendant fails to answer a cross claim.

Extension of time to plead

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Requisites:
1. There must be a motion;
2. With service of such motion to other party; and
3. On such terms as may be just.

Rule 11 Section 2: Answer of a defendant foreign private juridical entity

Where the defendant is a foreign private juridical entity and service of summons is made on the
government official designated by law to receive the same, the answer shall be filed within thirty (30)
days after receipt of summons by such entity.

In case the defendant is a foreign private juridical entity

a. If it has a resident agent within 15 days after service of summons to him;
b. If it has no resident agent, but it has an agent or officer in the Philippines within 15 days after
the service of summons to said agent or officer;
c. If it has no resident agent nor agent nor officer in which cases service of summons is to be made
on the proper government office(now SEC) which will then send a copy thereof by registered
mail within ten (10) days to the home office of the foreign private corporation within (30) days
after receipt of summons by the home office of the foreign private entity.

In case of service of summons by publication

Within the time specified in the order granting leave to serve summons by publication which shall NOT
be less than (60) days after notice;

In case of a non-resident defendant on whom extraterritorial service of summons is made

The period to answer should be at least (60) days.

The court may extend the time to file the pleadings BUT not shorten them (Except: Quo warranto)

Rule 11 Section 3: Answer to amended complaint

Where the plaintiff files and amended complaint as a matter of right, the defendant shall answer the
same within fifteen (15) days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall answer the amended complaint within ten
(10) days from notice of the order admitting the same. Answer earlier filed may serve as the answer to
the amended complaint if no new answer is filed.
This rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended third
(fourth, etc.)-party complaint, and amended complaint-in-intervention.

1. If the filing of an amended complaint is a matter of right

Within 15 days from service of the amended complaint.
2. If the filing of the amended complaint is NOT a matter of right
Within 10 days counted from notice of the court order admitting the same. This is so because the
responding party was already served with a copy of the proposed amended complaint

The rule shall apply to the answer to an amended counterclaim, amended cross-claim, amended
third (fourth ect.)-party complaint and amended complaint in intervention.

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 If NO NEW ANSWER is filed, answer to original pleading shall be deemed as answer to
amended pleading.

Rule 11 Section 4: Answer to counterclaim or cross claim

A counterclaim or cross-claim must be answered within ten (10) days from service.

Rule 11 Section 5: Answer to third (fourth, etc) party complaint.

The time to answer a third (fourth, etc)-party complaint shall be governed by the same rules as the
answer to the complaint.

When it comes to a third party complaint, since it is practically a new action against the third
party defendant the third party defendant is also required to file an answer to the third party complaint.
How much time does the third party defendant have to answer the third party complaint? Again, it all
depends on whether the summons is served through publication or through personal service or if the
third party defendant is a foreign corporation, which has been served summons through the proper
government agency. In other words, when it comes to the period to respond to a third party complaint
we also give to the defendant either a 15-day period, a 30-day period, or a 60 day period, similar to the
period which is given to the defendant when he files an answer to a complaint.

The third-party defendant is served with summons just like the original defendant. Hence, he also
has 15, 30, or 60 days from service of summons, as the case may be, to file his answer.

Rule 11 Section 6: Reply

A reply may be filed within ten (10) days from service of the pleading responded to.

Rule 11 Section 7: Answer to Supplemental Complaint

A supplemental complaint may be answered within ten (10) days from notice of the order admitting the
same, unless a different period is fixed by the court. The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or supplemental answer is filed.

Rule 11 Section 8: Existing counterclaim or cross claim; period for filing claim pleadings other than a
complaint.

A compulsory counterclaim or a cross-claim that a defending party has at the time he files his answer
shall be contained therein.

How about the other claim pleadings, a counterclaim, a cross claim, a third party complaint?
Does the Rules of Court fix a period for the filing of a counterclaim, a cross claim, a third party
complaint? If we are going to read Rule 11 there is by implication a period fixed for the filing of a
counterclaim, cross claim, third party complaint and other claim pleadings, particularly a compulsory

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counterclaim and a cross claim. The reason again is that, it Rules a compulsory counterclaim and a cross
claim that are not set up are deemed barred. So that there is a period fixed for the filing of a compulsory
counterclaim and cross-claim.

How about a permissive counterclaim? There is no fixed period in the Rules for the filing of a
permissive counterclaim, because whether or not a permissive counterclaim will be lost through
prescription is a matter again that will have to be decided by the Civil Code thats the prescription of
actions. But if the defendant desires to incorporate a permissive counterclaim or a third party
complaint he must do so during the pendency of the case. Because one of the rules stated here in 11 is
that, although a permissive counterclaim and a third party complaint are independent pleadings they
cannot be filed separately from an answer. So if the defendant has a third party complaint or if the
defendant has a permissive counterclaim he must always incorporate them in the answer so that what
the plaintiff or what the defendant is going to file is an answer with a permissive counterclaim or an
answer with a third party complaint. These pleadings although independent from an answer should
always be incorporated in the answer itself. And there is a period fixed for the filing of an answer. It is
either 15 days or 30 days or a period of not less than 60 days.

Rule 11 Section 9: Counterclaim or cross-claim arising after answer

A counterclaim or a cross claim which either matured or was acquired by a party after serving his
pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by
supplemental pleading before judgment.

Rule 11 Section 10: Omitted counterclaim or cross-claim

When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or

excusable neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-
claim by amendment before judgment.

RULE 12

BILL OF PARTICULARS

RULE 12 Section 1: When applied for; purpose

When applied for; purpose. 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. Such motion shall point out the defects
complained of the paragraphs wherein they are contained, and the details desired.

The next Rule after 11 is Bill of Particulars. Bill of Particulars is also a prohibited pleading in
summary procedure together with intervention. A bill of particulars is just a more definite statement of
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an allegation contained in a pleading which is not alleged with sufficient definiteness or adequacy. In a
bill of particulars the purpose of a litigant in asking for the particulars is to enable him to prepare a
responsive pleading.

Application of bill of particulars in civil and criminal cases

There is a great difference between the rule on bill of particulars in criminal cases and the bill of
particulars in civil cases. In civil case, the purpose why a bill of particulars maybe availed of by a litigant
is to enable the litigant to prepare a responsive pleading. In a criminal case the purpose of the accused
in asking for a bill of particulars is enable the accused to prepare for trial. So, in a civil case a litigant
cannot go to court and ask the court to compel the adverse party to issue an order directing the
submission of bill of particulars for the purpose of enabling the movant to prepare for trial. The only
purpose again in a civil case in asking for a bill of particulars is to enable the movant to prepare a
responsive pleading.

If a litigant reads the pleading submitted by the adverse party and he concludes that he cannot
really understand what the adverse party has written in the pleading, cannot this party ask for the
dismissal of the case, if it is the complaint that is vague? Can he not go to court and complain to the
court: I cannot possibly submit an intelligent answer because I could not understand what the plaintiff
is talking about? Is that not a ground for the dismissal of the complaint? Well unfortunately that is not
one of the grounds for the dismissal of a case under Rule 16. The fact that the complaint contains vague
and indefinite allegations is not one of the grounds enumerated in Rule 16 for the dismissal of the
complaint.

If the defendant cannot understand what the plaintiff is talking about in his complaint and he
can convince the court and the court is also convinced that the allegations in the complaint could not be
well understood, should not the defendant leave the complaint as it is? Cannot the defendant also file
an answer, which is not easy to understand? So that we have a case where the plaintiffs complaint is
hard to understand, where the defendants answer is also hard to understand and therefore the chances
are the court will be confused. Well, that maybe a sound move because, if the court itself is confused.
The court cannot understand what the plaintiffs claim is all about and what the defendants defenses
are all about, the chances are the court might dismiss the case. But the plaintiff always has a remedy if
the defendant does not ask for the bill of particulars. Any vagueness or indefiniteness in the complaint
can always be remedied by the evidence to be introduced during the trial. So, if the allegations
contained in the complaint are vague, the vagueness may be remedied submitted by the plaintiff in the
course of the trial.

Bill of particulars is a remedy available to all parties

Bill of particulars is not a remedy that is available to the defendant alone. A bill of particulars is
a remedy available to all litigants of a case, to both plaintiff and the defendant, to the third party
plaintiff, to the third party defendant. But in the cases decided in relation to bill of particulars are
centered usually on a motion for bill of particulars filed by the defendant. But if you are going to read
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the Rules, even, the plaintiff can avail of a bill of particulars if the allegations contained in the answer
are indefinite or vague.

BILL OF PARTICULARS is more a definite statement of any matter which is not averred with
sufficient definiteness or particularity.

Purpose: To aid in the preparation of a responsive pleading.

An action cannot be dismissed on the ground that the complaint is vague or indefinite. The
remedy of the defendant is to move for a bill of particulars or avail of the proper mode of
discovery.

The motion for bill of particulars shall be filed before responding to a pleading. Hence it must be
filed within the period granted by the Rules for the filing of responsive pleading.

The motion shall point out:

1. The defects complained of;
2. The paragraphs wherein they are contained; and
3. The details desired.

The motion must comply with the requirements for motions under Sec. 4, 5 and 6 of Rule 15.
OTHERWISE the motion will not suspend the period to answer

Note: A motion for bill of particulars is NOT directed only to a complaint. It is a motion that
APPLIES TO ANY PLEADING which in the perception of the movant contains ambiguous
allegations.

Rule 12 Section 2: Action by the court

Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court
which may either deny or grant it outright, or allow the parties the opportunity to be heard.

A bill of particulars should of course be requested in the form of a motion. So, there is a Motion
for Bill of Particulars that is filed by the interested party. The feature of a motion for a bill of particulars
which is not a feature in other motions is that, the court has the authority to rule on the motion even
before the date set for hearing. So if the defendant files a motion for a Bill of Particulars under Rule 15
on motions he should set his motion for a bill of particulars for hearing on a motion day. Under the
Rules, the court can disregard a hearing set on a particular motion date. Upon receipt of the motion,
the court has the authority to rule on the motion right away, the court can either grant or deny the
motion right away.

If the defendant ask for a bill of particulars and the court denies the motion, can the defendant
assail the denial by going to a higher court? Of course the answer is NO. The denial of a motion for a bill
of particulars is a good example of an interlocutory order. So, it cannot be assailed/it cannot be
appealed being an interlocutory order.

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 The court may either:
1. Deny;
2. Grant it outright;
3. Allow the parties the opportunity to be heard.

Supposing the motion for a bill of particulars is denied. Is there any remedy left for the party
asking for a bill of particulars? YES. A party may resort to discovery. (Rule 23)

Rule 12 Section 3: compliance with order;

If the motion is granted, either in whole or in part, the compliance therewith must be effected within
(10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars
or a more definite statement ordered by the court may be filed either in a separate or in an amended
pleading, serving a copy thereof on the adverse party.

Period to comply with order granting the motion: - Ten (10) days from notice of order unless a
different period is fixed by the court.

The Bill of Particulars may be filed either in a separate or in an amended pleading, serving a
copy thereof on the adverse party.

Section 4: Effect of non-compliance

If the order is not obeyed, or in case of insufficient compliance therewith, the court may order the
striking out of the pleading or the portions thereof to which the order was directed or make such other
order as it deems just.

Supposing that the court grants the Motion for a Bill of Particulars and the court directs the
plaintiff to submit this bill of particulars either independently or in the form of an amended pleading or
amended complaint or supplemental complaint; and the plaintiff ignores the order of the court that is
the plaintiff does not comply with the order of the court requiring him to submit the bill of particulars. Is
there any sanction that could be imposed by the court? If the plaintiff ignores an order issued by the
court for the submission of bill of particulars, the court can either strike out the complaint, in which
case the complaint will be dismissed. Or if the court will not strike out the complaint the court will
order the allegations in that complaint which are vague and indefinite to be stricken out. In the latter
case, the complaint itself will not be stricken out. Only portions of the complaint which are allegedly
vague will be stricken out. Will that be prejudicial to the plaintiff, that is the complaint is not stricken out
by portions of that complaint are ordered stricken out? That order could also be prejudicial to the
plaintiff because once some allegations in the complaint are ordered stricken out, the remaining
allegations may be inadequate to allege a cause of action and therefor, the defendant this time can file
a motion to dismiss on the failure to state cause of action.

Lets take the side this time of the plaintiff. As we said a Bill of Particulars is also available to the
plaintiff and the bill of particulars will be addressed to the answer, the responsive pleading which
contains also vague and indefinite allegations. The court orders the defendant to submit a bill of
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particulars. The defendant ignores the order of the court. Can the plaintiff also move that his complaint
be stricken out? Of course it is foolish for the plaintiff to move that his complaint be stricken out? Of
course it is foolish for the plaintiff to move that his complaint be stricken out because the order of the
court is for the defendant to submit a bill of particulars concerning his answer.

Can the plaintiff move that the answer, this time, be stricken out? This time the court can order
properly that the answer be stricken out. If the answer is stricken out, what happens to the case? Well
nothing. The case continues. But if the order is stricken out that means to say that in the eyes of the
court, the defendant has not filed any answer at all. Since in the eyes of the court the defendant has
not filed any answer at all then this will be a proper ground for a motion to declare the defendant in
default. So, in a bill of particulars directed to the defendant, which is ignored by the defendant, the
sanction could be that the answer be stricken out and accordingly the defendant could be declared in
default.

Can the court, instead of ordering the answer itself to be stricken out, simply order that only
portions of that answer be stricken out not the answer itself but only portions of the answer? Well, that
is one of the prerogatives given to the trial court. The trial court can order either order the striking out
of the pleading or the trial court can order that only certain portions of that pleading be stricken out.

If the court orders the striking out only of certain portions of the answer, will that be
disadvantageous to the defendant? It could be disadvantageous to the defendant. It is simply possible
that if certain portions of the answer are ordered stricken out by the court, that is left in the answer may
no longer constitute a specific denial. So, if the remaining parties of the answer will not be enough to
meet the requirements of a negative defense, then, it is possible that the plaintiff can now ask for a
judgment on the pleading because the denial contained in that answer is no longer a specific denial or a
general denial.

Effect of non compliance:

1. If the order is not obeyed or in case of insufficient compliance therewith, the court may:
a. May order the striking out of the pleading or the portion thereof to which the order is
directed; or
b. Make such order as it may deem just.

2. If the plaintiff fails to obey, his complaint may be dismissed with prejudice UNLESS
otherwise ordered by the court (Rule 12 Section 4; Rule 17 Section 3)

3. If the defendant fails to obey, his answer will be stricken off and his counterclaim dismissed,
and he will be declared in default upon motion of the plaintiff. (Rule 12 Section 4; Rule 17
Section 4; Rule 9 Section 3)

Rule 12 Section 5: Stay of period to file responsive pleading

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After service of the bill of particulars or of a more definite pleading, or after notice of denial of his
motion, the moving party may file his responsive pleading within the period to which he was entitled at
the time of filing his motion, which shall not be less than five (5) days in any event.

Effect of Motion

1. If the motion is GRANTED, in whole or in part, the movant can wait until the bill of particulars is
served on him by the opposing party and then he will have the balance of the reglementary period
within which to file his responsive pleading; and

2. If his motion is DENIED, he will still have such balance of the reglementary period to file his
responsive pleading, counted from service of the order denying his motion.

Note: In either case, he shall have not less than 5 days to file his responsive pleading.

Rule 12 Section 6: Bill a part of pleading

A bill of particulars becomes part of the pleading for which it is intended.

RULE 13

FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER PAPERS

Rule 13 Section 1: Coverage

This rule shall govern the filing of all pleadings and other papers, as well as the service thereof, except
those for which a different mode of service is prescribed.

Rule 13 Section 2: Filing and Service, defined

Filing is the act of presenting the pleading or other paper to the clerk of court.

Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has
appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service
upon the party himself is ordered by the court. where one counsel appears for several parties, he shall
only be entitled to one copy of any paper served upon him by the opposite side.

Notice given to a party who is duly represented by counsel is a nullity, unless service thereof on
the party himself was ordered by the court or the technical defect was waived.

Where a party is represented by more than one counsel of record, service of notice on any of the
latter is sufficient.

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 If there are 5 defendants in the same case and there is only one lawyer for all is the lawyer
entitled to 5 copies? NO. Where one counsel appears for several parties, he shall only be entitled
to one copy of any paper served upon him by the opposite side. (Sec. 2 Rule 13 Last paragraph)

Rule 13 Section 3: Manner of Filing

The filing of pleadings, appearances, motions, notices, orders, judgments, and all other papers shall be
made by representing the original copies thereof, plainly indicated as such, personally to the clerk of
court or by sending them by registered mail. In the first case, the clerk of court shall endorse on the
pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or
any other papers or payments or deposits, as shown by the post office stamp on the envelope or the
registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The
envelope shall be attached to the record of the case.

Personal Service by presenting the original copies thereof, plainly indicated as such, to the
clerk of court; or

Registered Mail

Filing by mail should be through the REGISTRY OF SERVICE which is made by deposit of the
pleading in the post office, and not through other means of transmission.

If a private carrier is availed of by the party, the date of actual receipt by the court of such
pleading and not the date of delivery to the private carrier, is deemed to be the date of the filing of
that pleading (Benguet Electric Cooperative inc. vs. NLRC, GR. No. 89070 May 18, 1992)

Rule 13 Section 4: Papers required to be filed and served

Every judgment, resolution, order, pleading subsequent to the complaint, written motion, notice,
appearance, demand, offer of judgment or similar papers shall be filed with the court, and served upon
the parties affected.

In the matter of service and filing of papers, judgments, motions and pleadings, you might be
asked. Which comes first? Is it the filing or is it the service? See, that is really a tough question to
answer whether it is service which comes ahead of filing or whether it is filing that comes ahead or
service. Now to get a correct answer, you have first to determine the document that we are referring
to.

Complaint (Filing comes ahead of service)

If the document referred to is a complaint, which is the pleading that commences an action it is
filing that comes ahead of service. If a plaintiff files a complaint, you dont expect the plaintiff to serve a
copy of the complaint upon the defendant and then file it in court. In the case of a complaint, the
complaint is first filed in court, docket fees are paid and after the filing of the complaint it is served upon
the defendant together with the summons.
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Responsive pleadings; counterclaim and cross claim

But that is in the case of a complaint. How about in the other pleadings in Rule 6? When it
comes to a responsive pleading and pleadings like counterclaim and cross claim, it is service that comes
ahead of filing. Because we said a while ago that if there is a counterclaim or a cross claim these
pleadings must always be embodied in the answer. And in the case of an answer, before the defendant
could file his answer in court, he must first serve a copy of the answer upon the plaintiff. In the case of a
third party complaint, it is the filing that comes ahead of the service because in a third party complaint,
it cannot be admitted without leave of court. So we must first file a motion for leave to admit third
party complaint and then pay the docket fees. And after the third party complaint is admitted, summons
is also served upon the third party defendant together with a copy of the third party complaint.

Judgment, resolutions and orders of the court (Filings comes ahead of Service)

How about in judgments and resolutions and orders of the court? Which comes first? Is it the
filing or the service? When it comes to the judgments and orders and resolutions of the court, it is the
filing which comes ahead of service. When the judge renders his decision, the judge will first submit a
copy or the original of the decision to the clerk of court that is filing. And it is now the duty of the clerk
of court to service copies of a judgment or order upon the adverse parties.

Papers required to be filed and served

1. Pleading subsequent to the complaint;

2. Appearance;
3. Written Motion;
4. Notice;
5. Order;
6. Judgment;
7. Demand;
8. Offer of Judgment;
9. Resolution; or
10. Similar Papers.

Filing is the act of presenting the pleading or other papers to the clerk of court.
Service is the act of providing a party with a copy of the pleading or paper concerned

Rule 13 Section 5: Modes of Service

Service of pleadings, motions, notices, orders, judgments and other papers shall be made either
personally or by mail.

Rule 13 Section 6: Personal Service

Service of the papers may be made by delivering personally a copy to the party or his counsel, or by
leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his

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office, or his office is not known, or he has no office, then by leaving the copy between the hours of
eight in the morning and six in the evening, at the partys or counsels residence, if known, with a person
of sufficient age and discretion then residing therein.

Personal Service

a. Delivering personally a copy to the party, who is not represented by a counsel, or to his
counsel; or
b. Leaving a copy in counsels office with his clerk or with a person having charge therefor;
c. Leaving the copy between 8 a.m. and 6 p.m. at the partys or counsels residence, if known
with a person of sufficient age and discretion then residing therein if no person is found in
his office or if he has no office

Rule 13 Section 7: Service by mail

Service by registered mail shall be made by depositing the copy in the post office, in a sealed envelope,
plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known,
with postage fully pre-paid, and with instructions to the postmaster to return the mail to the sender
after ten (10) days if undelivered. If no registry service is available in the locality of either the sender or
the addressee, service may be done by ordinary mail. (as amended by en banc resolution)

Registered Mail service by registered mail shall be made:

i. By depositing the copy in the post office;

ii. In a sealed envelope;
iii. Plainly addressed to the party or his counsel at his office, if known;
iv. Otherwise his residence, if known
v. With postage fully pre-paid, and
vi. With instructions to the postmaster to return the mail to the sender after ten (10) days if
undelivered.

Ordinary Mail if no register service is available in the locality of either the sender or the
addressee, service, may be done by ordinary mail.

Rule 13 Section 9: Service of Judgments, final orders, or resolutions

Judgments, final orders or resolutions shall be served either personally or by registered mail. When a
party summoned by publication has failed to appear in the action, judgments, final orders or resolutions
against him shall be served upon him also by publication at the expense of the prevailing party.

By personal service;
By registered mail;
By publication, if party is summoned by publication and has failed to appear in the action

No substituted service.

Rule 13 Section 10: Completeness of service

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Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the
expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail
is complete upon actual receipt by the addressee, or after five (5) days from the date he received the
first notice of the postmaster, whichever date is earlier.

Personal Service is deemed complete upon actual delivery

Service by way of registered mail - is deemed complete upon actual receipt by the addressee or
after 5 days from the date he received the first notice of the postmaster, whichever is earlier.

Service by ordinary mail is deemed complete upon the expiration of 10 days after mailing
unless the court otherwise provides.

Substituted Service is complete at the time of the delivery of the copy to the clerk of court.

Rule 13 Section 11: Priorities in modes of service and filing

Whenever practicable, the service and filing of pleadings and other papers shall be done personally.
Except with respect to papers emanating from the court, a resort to other modes must be accompanied
by a written explanation why the service or filing was not done personally. A violation of this Rule may
be cause to consider the paper as not filed.

But whether the filing comes ahead of service or service comes ahead of filing, the litigants must
always be aware that under the present rules there is an order of priority when it comes to service. The
order of priority is that personal service must always be resorted to. If personal service is not resorted
to, there must be an explanation given by the party why he has not resorted to personal service. Is this a
serious violation of the Rules, that is, personal service is not resorted to but there is no explanation
given by the litigant? The Supreme Court has always considered this to be a serious violation of the
Rules. So, if a motion is filed and the motion is served through registered mail without an explanation,
the court has every reason to consider that motion as a useless scrap of paper. This Rule is strictly
followed by the Supreme Court. You must have heard about petitions for certiorari dismissed by the
Supreme Court outright simply because the petitioner has failed to give an explanation in his petition
why personal service has not been resorted to.

What are the modes of service of these motions, pleadings and judgments? Of course the first in
priority when it comes to service is personal service, and then service by mail and then substituted
service and service by publication. It is only in unusual, exceptional, circumstances when there is service
by publication.

But it is also settled that if a litigant is represented by counsel, service must be made upon the
counsel. If the service is not made upon a counsel but upon the party himself that is not proper service.
Service must always be made upon the counsel representing a litigant not upon the litigant himself.

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 Personal service and filing is the general rule, and resort to other modes of service and filing is
the exception.

Except papers emanating from the court, a resort to modes other than by personal service must
be accompanied by written explanation why the service or filing was not done personally.

Rule 13 Section 8 vs. Rule 14 Section 7 on substituted service

Rule 13 Section 8: Substituted Service If service of pleadings, motions, notices, resolutions, orders, and
other papers cannot be made under the two preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made by delivering the copy to the clerk of court,
with proof of failure of both personal service and service by mail. The service is complete at the time
such delivery.

Rule 14 Section 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
defendants residence with some person of suitable age and discretion then residing therein, or (2) by
leaving the copies at defendants office or regular place of business with some competent person in
charge thereof.

You should also take note of the litigant difference between substitute service of motions and
pleadings and other documents and substitute service of summons under Rule 14. When it comes to
service of motions and pleadings, service of said motion or pleading upon the counsel is considered as
personal service. In summons, a personal service means service upon the defendant himself
personally. In fact the term used in Rule 14 is not personal service but, service in person to emphasize,
that in summons, when it comes to service in person, the summons must be delivered or at least
tendered to the defendant himself.

If the summons is tendered properly upon a person other than the defendant then that is
substitute service of summons. In pleadings and motions, substitute service refers to a situation where
personal service and service by mail is not effective. If personal service and service by mail is not
effective, the party will go to the clerk of court, present proof in at he has tried to serve this document
through personal service or service by mail but to no avail. And when he submits the paper to the clerk
of court, that is the meaning of substitute service in Rule 13. Again, when it comes to Rule 13 always pay
attention to the requirement on the order of priority. Personal service must always be availed of ahead
of other modes of service. Otherwise, the service will not be considered as having been properly carried
out.

Rule 13 Section 12: Proof of filing

The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in
the record, but is claimed to have been filed personally, the filing shall be proved by the written or
stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered
mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full
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statement of the date and place of depositing the mail in the post office in a sealed envelope addressed
to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to
the sender after ten (10) days if not delivered.

The filing of a pleading or paper is proved by its existence in the record. If it is not in the record,

a. If filed personally: Proved by the written or stamped acknowledgment of its filing by the
clerk of court on a copy of the same; or

b. If filed by registered mail: Proved by the registry receipt AND the affidavit of the person
who did the mailing with a full statement of:

i. The date and place of depositing the mail in the post office in a sealed envelope
addressed to the court;
ii. With postage fully prepaid; and
iii. With instructions to the postmaster to return the mail to the sender after ten (10) days if
undelivered.

Rule 13 Section 13: Proof of service

Proof of personal service shall consist of a written admission of the party served, or the official return if
the server, or the affidavit of the party serving, containing a full statement of the date, place and
manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the
person mailing of facts showing compliance with Section 7 of this Rule. If service is made by registered
mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The
registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the
unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the
addressee.

a. proof of personal service shall consist of:

i. The written admission of the party served;

ii. The official return of the server; or
iii. The affidavit of the party serving containing full information of the date, place, and
manner of the service.

Proof of service by registered mail shall be shown by the affidavit of the mailer showing
compliance with Sec. 7 of Rule 13 and the registry receipt issued by the mailing office. The
registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof of
the unclaimed letter together with the certified or sworn copy of the notice given by the
postmaster to the addressee.

Proof of service by ordinary mail service shall be proved by the affidavit of the mailer
showing compliance with Sec. 7 of Rule 13

Rule 13 Section 14: Notice of lis pendens

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In an action affecting the title or the right of possession of real property, the plaintiff and the defendant,
when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the
province in which the property is situated a notice of the pendency of the action. Said notice shall
contain the names of the parties and the object of the action or defense, and a description of the
property in that province affected thereby. Only from the time of filing such notice for record shall a
purchaser, or encumbrancer of the property affected thereby, be deemed to have constructive notice of
the pendency of the action, and only of its pendency against the parties designated by their real names.

The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after
proper showing that the notice is for the purpose of molesting the adverse party, or that it is not
necessary to protect the rights of the party who caused it to be recorded.

Lis pendens is a notice of a pendency of the action between the parties involving title to or
right of possession over real property.

Requisites:
1. Action affects the title or the right of possession of the real property;
2. Affirmative relief is claimed;
3. Notice shall contain the name of the parties and the object of the action or defense and a
description of the property affected thereby; and
4. Action in rem

This serves as a warning to all persons that a particular real property is in litigation, and that one
who acquires an interest over said property does so at his own risk, or that he gambles on the
result of the litigation over said property

The defendant may also record a notice of lis pendens when he claims an affirmative relief in his
answer.
Note: Section 76 PD 1529 Provides that no action to recover possession of real estate, or to quite
title thereto, or to remove the clouds upon the title thereof, or for partition, or other proceedings
of any kind in court directly affecting the title to land or the use or occupation thereof or the
buildings thereon, and no judgment and no proceeding to vacate or reverse any judgment shall
have any effect upon registered land as against persons other than the parties thereto, unless a
memorandum or notice stating the institution of such action or proceeding and the court wherein
the same is pending, as well as the date of institution thereof, together with a reference to the
number of the certificate of title, and an adequate description of the land affected and the
registered owner thereof, shall have been filed and registered.
Notice of lis pendens CANNOT be cancelled on an ex parte motion or upon the mere filing of a
bond by the party on whose title the notice is annotated, as section 14 provides that such
cancellation may be authorized ONLY upon order of court, after proper showing that;
1. The notice is for the purpose of molesting the adverse party;
2. It is not necessary to protect the rights of the party who caused it to be recorded.

Note: File for cancellation of the notice of lis pendens only during the pendency of the case and NOT if it
is already final and executory pursuant to PD 1529 Section 77.

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 RULE 14

SUMMONS

COMMENT:

JURISDICTION over the person of the defendant in a civil case is acquired either by his VOLUNTARY
APPEARANCE or SERVICE OF SUMMONS upon him (Minucher vs. CA, G.R. No. 142963, Feb. 11,
2003)

SUMMONS is the writ by which the defendant is notified of the action brought against him. (Cano-
Gutierrez vs. Gutierrez, 341 SCRA 670)

The issuance of summons is NOT discretionary on the part of the court or clerk of court but is a
MANDATORY requirement.

Purpose of summons

A. Action in Personam

1. To acquire jurisdiction over the person of the defendant in a civil case; and

2. To give notice to the defendant that an action has been commenced against him; (Right to due
process)

B. Action in Rem and Quasi-in-Rem:

Not to acquire jurisdiction over the defendant but mainly to satisfy the constitutional requirement
of due process. Jurisdiction over the defendant is not required and the court acquires jurisdiction
over an action as long as it acquires jurisdiction over the res. (Riano, 2007. P.232)

Effect of Non-Service

Unless the defendant voluntarily submits to the jurisdiction of the court, NON SERVICE or
IRREGULAR SERVICE of summons renders null and void all subsequent proceedings and issuances in
the action from the order of default up to and including the judgment by default and the order of
execution.

The NON-SERVICE or Invalidity of Service of summons may be a ground for dismissal, for lack of
jurisdiction over the person of the defending party

Note: Where the defendant has already been served with summons on the original complaint, no further
summons is required on the amended complaint if it does not introduce new cause of action. (Ong Peng
vs. Custodio, G.R. No. 14911, March 25, 1961)

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But where the defendant was declared in default on the original complaint and the plaintiff subsequently
filed an amended complaint, new summons must be served on the defendant on the amended complaint,
as the original complaint was deemed withdrawn upon such amendment. (Atkins vs. Domingo, G.R. No.
L-19565, March 24, 1923)

General Rule: When an additional defendant is joined, summons must be served upon him.

Exceptions:

1. When the administrator of a deceased party defendant substitutes the deceased;

2. Where upon the death of the original defendant his infant heirs are made parties; and

3. In cases of substitution of the deceased under Section 16 of Rule 3.

Note: In these instances, the service of the ORDER OF SUBSTITUTION is sufficient.

Rule 14 Section 1: Clerk to issue summons

Upon the filing of the complaint and the payment of the requisite legal fees, the clerk of court shall
forthwith issue the corresponding summons to the defendants.

COMMENT:

Summons to be issued:

1. Upon the filing of the complaint; and

2. Payment of the requisite legal fees.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 2: Contents

The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain;

(a)The name of the court and the names of the parties to the action;

(b)A direction that the defendant answer within the time fixed by these Rules;

(c)A notice that unless the defendant so answers, plaintiff will take judgment by default and may be
granted the relief applied for.

A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the
original and each copy of the summons.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 3: By whom served

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The summons may be served by the sheriff, his deputy, or other proper court officer, or for justifiable
reasons by any suitable person authorized by the court issuing summons.

COMMENT:

Summons may be served by:

1. Sheriff;
2. Sheriffs deputy; or
3. Other proper court officers; or
4. For justifiable reasons, by any suitable person authorized by the court issuing the summons.

The enumeration is EXCLUSIVE.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 4: Return

When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of
the return, personally or by registered mail, to the plaintiffs counsel, and shall return the summons to
the clerk who issued it, accompanied by proof of service.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 5: Issuance of alias summons

If a summons is returned without being served on any or all of the defendants, the server shall also
serve a copy of the return in the plaintiffs counsel stating the reasons for the failure of service, within
five (5) days therefrom. In such a case, or if the summons has been lost, the clerk, on demand of the
plaintiff, may issue an alias summons.

COMMENT:

ALIAS SUMMONS is one issued when the original has not produced its effect because of a
defect in form or in the manner of service, and when issued, supersedes the first writ.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 6: Service in person on defendant

Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in
person, or, if he refuses to receive and sign for it, by tendering it to him.

COMMENT:

Service in person on defendant Sec. 6

1. By handing a copy of summons to him; OR

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 2. By tendering it to him if he refuses to receive it.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 7: Substituted service

If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the
preceding section, service may be effected (a) by leaving copies of the summons at the defendants
residence with some person of suitable age and discretion then residing therein, or (b) by leaving the
copies at defendants office or regular place of business with some competent person in charge thereof.

COMMENT:

Substituted service (Section 7)

Only when personal service cannot be made promptly and after all efforts to do so are exerted,
may substituted service be resorted to.

1. By leaving copies of the summons at the defendants resident with some person of suitable age
and discretion residing therein; or

2. By leaving the copies at defendants office or regular place of business with some competent
person in charge thereof.

For substituted service of summons to be valid, it is necessary to establish the following:

1. The impossibility of the personal service of summons within a reasonable time;

Note: Reasonable Time is defined as so much time as is necessary under the circumstances for a
reasonably prudent and diligent man to do, conveniently, what the contract or duty requires that
should be done, having regarded for the rights and possibility of loss, if any, to the other party.

To the sheriff, reasonable time means 15 to 30 days because at the end of the month, it is a
practice for the branch clerk of court to require the sheriff to submit a return of the summons
assigned to the sheriff to submit a return of the summons assigned to the sheriff for service. The
sheriff return provides data to the Clerk of Court, which the clerk uses in the Monthly Report of
Cases to be submitted to the Office of the Court Administrator within the first ten (10) days of the
succeeding month. Thus one month from the issuance of summons can be considered.
reasonable time with regard to personal service on the defendant (Collado-Lacorte vs. Rabena,
A.M. No. P-09-2665, Aug. 4, 2009)

2. The efforts exerted to locate the person to be served; and

3. Service upon a person of sufficient age and discretion residing in the same place as defendant OR
some competent person in charge of his office or regular place of business.

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 In substituted service, the sheriffs return must show that an effort or attempt was exerted to
personally serve the summons on the defendant and that the same had failed. (Spouses
Venturanza vs. CA, G.R. No. 77760, Dec. 11, 1987)

For substituted service of summons to be available, there must be several attempts by the sheriff
to personally serve the summons within a reasonable period (of one month) which eventually
resulted in failure to prove impossibility of prompt service.

Service Attempts means at least three (3) tries, preferably on at least two different dates.
(Collado-Lacorte vs. Rabena, A.M. No. P-09-2665, Aug. 4, 2009)

C. Publication (Section 14)

Requisites:

1. Defendants identity or whereabouts are unknown and cannot be ascertained by diligent inquiry
(but is in the Philippines); and

2. There must be leave of court.

Summons by way of publication may with leave of court be availed of where a defendant involved in any
action (in rem, quasi in rem, and in personam) is designated as an unknown owner or whenever his
whereabouts are unknown and cannot be ascertained. The summons shall be effected through publication
in a newspaper of general circulation and in such places and for such time as the court sets.

In Santos vs. PNOC (GR No. 170943, Sept. 23, 2008), the Supreme Court held that 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. Because of this silence, the court limited the application of the old rule to
in rem actions only. This has been changed. The present rule expressly states that it applied to any action
where the defendant is designated as unknown owner, or the like, or whenever his whereabouts are
unknown and cannot be ascertained by diligent inquiry. Thus, it now applies to any action, whether in
personam, in rem or quasi-in-rem.

If property is attached and later the defendant appears (and voluntarily submits to the jurisdiction
of the court), the case becomes mainly as suit in personam (Villareal vs. CA, GR. No. 107314,
Sept. 17, 1998)

Note: Summons is validly served if it is left with some person of suitable age and discretion then
residing in the defendants residence, even if defendant was abroad at that time. The fact that the
defendant did not actually receive the summons did not invalidate the service of such summons
(Montalban vs. Maximo, G.R. No. 22997, March 15, 1968)

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 8: Service upon entity without juridical personality

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When persons associated in an entity without juridical personality are sued under the name by which
they are generally or commonly known, service may be effected upon all defendants by serving upon
any one of them, or upon the person in charge of the office or place of business maintained in such
name. But such shall not bind individually any person whose connection with the entity has, upon due
notice, been severed before the action was brought.

Rule 14 Section 9: Service upon prisoners

When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by
the officer having the management of such jail or institution who is deemed deputized as a special
sheriff for said purpose.

Summons is not the sole means to acquire jurisdiction over the person

Summons in Rule 14 our usual impression when it comes to summons is that there is a need to
summons because this is the only means by which the court can acquire by compulsion, jurisdiction over
the person of the defendant. That is not an accurate statement. A court can acquire jurisdiction over the
person of the defendant by compulsion, that is, not by voluntary appearance. Even if the process is not a
summons, there could be other modes by which a court can acquire jurisdiction over the person of a
defending party that is not through the service of summons.

A good example is Rule 65, that is the rule on certiorari, prohibition, and mandamus. In Rule 65,
which is an independent civil action, although we call it a special civil action. In Rule 65, the court does
not issue a summons. What does the court issue in Rule 65? The court simply issue an order addressed
to the defending party to file a comment. That is a process, which will confer upon the court, by
[compulsion], jurisdiction over the person of the respondent/defending parties. This is also the reason
why in Rule 65 since summons is not issued by the court, if the respondent ignores the order of the
court to file a response or a comment, the court cannot declare the respondent in default because the
process is issued is not a summons.

So there are instances in the Rules where the jurisdiction over the person of the defendant is
not acquired necessarily through service of summons. It could also be acquired through the service of
other processes. But generally, for a court to acquire jurisdiction over the person of the defending party
by compulsion summons must be served upon the defendant. Of course if the defendant voluntarily
appears in court then there is no more need for the court to cause the service of summons upon the
voluntary appearance on the part of the defendant will enable the court to acquire jurisdiction over his
person.

Order of priority

In summons, since the main purpose is to enable the court to acquire jurisdiction over the
person of the defendant, the modes of service as enumerated in the Rules must be strictly followed and
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just like in Rule 13 there is also an order of priority when it comes to service of summons that is, service
in person will always be preferred over substitute service. And service by publication cannot be had
unless the court is convinced that personal service or substitute service have been resorted to but it has
not been successfully carried out.

Rule 14 Section 10: Service upon minors and incompetents

When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him
personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose
appointment shall be applied for by the plaintiff. In the case of a minor, service may also be made on his
father or mother.

You will also notice that in Rule 14 when it comes to service of summons, when the defendant is
a minor or an insane person, summons must be served upon the minor or insane person and also upon
the guardian. The rule is also quiet clear. There must be service of summons upon both the guardian and
the insane person. Well if there is anyone of you here who can give an explanation why summons
should still be served upon an insane person, then just let us know because I could not think of any good
reason why the rules requires summons to be served upon an insane person. Service upon the guardian
probably should be adequate but this section has not been changed at all. When the defendant is
insane, summons must be served both upon the insane person and upon his guardian.

Rule 14 Section 11: Service upon domestic private juridical entity; cases in point: Villarosa and Mason
vs. Court of Appeals

Service upon domestic private juridical entity when the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a juridical personality, service may be made
on the president, managing partner, general manager, corporate secretary, treasurer, or in house
counsel.

In 1999 or year 2000 when it comes to defendant corporation that is domestic, the Supreme
Court came out with the case of Villaroza, which ruled that when the defendant is a domestic
corporation, service of summons must be made upon anyone of the officers enumerated in Section 11.
They are the president, the general manager, the managing partner or the treasurer, the corporate
secretary or in house counsel. According to this case of Villaroza, service upon any other officer of the
corporation will not be sufficient to confer jurisdiction over the person of this corporation on the part of
the court. in other words, the Supreme Court in Villaroza gave a very strict interpretation on the matter
of service of summons upon a domestic corporation. Again, the summons must be served upon anyone
of the officers enumerated in Section 11.

In case of Villaroza, the summons was served upon branch manager of the defendant-
corporation and the Supreme Court said that is not a proper service because Section 11 speaks about a
general manager or a managing partner.

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 We all through that sooner or later the Supreme Court will revert to the old doctrine of
substantial compliance with the Rules of Court. But last year in October, the Supreme Court came out
with a decision confirming or affirming the strict application of the Rules on Service of summons when it
comes to a domestic corporation. The case of Mason vs. Court of Appeals decided on October 13, 2003.
So we do have now two decisions of the Supreme Court which apply strictly the rules concerning service
of summons upon a domestic corporation.

Again in order to have a valid service of summons upon a domestic corporation or a partnership, the
summons must be served upon anyone of the officers mentioned in Section 11 of Rule 14. Otherwise,
the court does not acquire jurisdiction over this defendant corporation. And if the court is not
considered to have acquired jurisdiction over the person of the defendant corporation, a decision
rendered by the court is null and void. For a decision to be valid the court must have jurisdiction over
the subject matter, it must have jurisdiction over the person of the litigants and in some instances the
law requires that the court must also have jurisdiction over the res and the issues submitted to the
court. So, always be reminded that the doctrine in Villaroza has not been abandoned by the court. in
fact, it has been adopted in a decision released last year in October 2003, and the case is Mason vs.
Court of Appeals.

Rule 14 Section 12: Service upon foreign private juridical entity

When the defendant is a foreign private juridical entity which has transacted business in the Philippines,
service may be made on its resident agent designated in accordance with law for that purpose, or, if
there be no such agent, on the government official designated by law to that effect, or on any of its
officers or agents within the Philippines.

Rule 14 Section 13: Service upon public corporations

When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General;
in case of a province, city or municipality, or like public corporations, service may be effected on its
executive head, or on such other officer or officers as the law or the court may direct.

COMMENT:

SERVICE OF SUMMONS ON DIFFERENT ENTITIES

1. ENTITY w/o juridical personality (Section 8)

Service of Summons: Upon any or all the defendants being sued under common name; or person
in charge of the office.

2. MINORS and INCOMPETENTS (Section 10)

Service of Summons: IN CASE OF MINORS: By serving upon the minor, regardless of age,
AND upon his legal guardian, or also upon either of his parents.

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 IN CASE OF INCOMPETENTS: By serving on him personally AND upon his legal guardian,
but not upon his parents, UNLESS they are his legal guardians.

IN ANY EVENT, if the minor or incompetent has no legal guardian, the plaintiff must obtain the
appointment of a guardian ad litem for him.

3. PRISONER (Section 9)

Service of Summons: Serve on officer having management of the jail or prison (warden );

4. DOMESTIC PRIVATE JURIDICAL ENTITY (Section 11)

Service of Summons: To the president, managing partner, general manager, corporate secretary,
treasurer, or in house counsel.

Note: Service upon a person other than those mentioned is invalid and does not bind the
corporation. THE ENUMERATION IS EXCLUSIVE.

5. FOREIGN PRIVATE JURIDICAL ENTITY (Section 12 as amended by AM. No. 11-3-3-SC,

March 15,2011

Service of Summons: 1.) IF REGISTERED IN THE PHILIPPINES, serve on the resident agent;
or if none; on the government official designated by law, or on any officer or agent of the
corporation within Philippines. 2.) If the foreign private juridical entity is NOT REGISTERED
IN THE PHILIPPINES or has no resident agent, service may, with leave of court, be effected out
of the Philippines through any of the following means: a.) By personal service coursed through
the appropriate court in the foreign country with the Department of Foreign Affairs; b.) By
publication once in a newspaper of general circulation in the country where the defendant may be
found and by serving a copy of the summons and the court order by registered mail at the last
known address of the defendant; c.) By facsimile or any recognized electronic means that could
generate proof of service; d.) By such other means as the court may in its discretion direct.

6. PUBLIC CORPORATIONS (Section 13)

Service of Summons: IN CASE DEFENDANT IS THE REPUBLIC OF THE PHILIPPINES

By serving upon the Solicitor General. IN CASE OF A PROVINCE, CITY OR
MUNICIPALITY, OR LIKE PUBLIC CORPORATION By serving on its executive head or on
such other officer or officers as the law or the court may direct.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 14: Service upon defendant whose identity or whereabouts are unknown

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In any action where the defendant is designated as 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.

Section 15: Extraterritorial service:

When the defendant does not reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in
which the defendant has or claims a lien or interest, actual or contingent, or in which the relief
demanded consist, 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.

Section 16: Resident 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.

To continue with summons, you read Section 14, 15, and 16. Service by publication. Again, there
are conflicts concerning the applicability of these three sections. Service of Summons by mail is not a
mode of service. If the court directs that summons be served by mail, that order of the court is void. And
if the summons is sent by registered mail even if it is received by the defendant, the court does not
acquire jurisdiction over the person of the defendant.

There are only three modes of service of summons in 14. Service of summons in person,
substitute service and service by publication. Service by mail is just complimentary to service by
publication of summons. If you are going to read sections 14, 15 and 16 which all refer to publication of
summons it is very clear that if the defendant is unknown, that is in section 14, or his whereabouts are
unknown, the court could properly direct that summons be served by publication. In Section 15, which is
the old doctrine on the service by publication, it is called extraterritorial service, the situation
contemplated is that the defendant is non-resident and is not found in the Philippines. Generally, we
cannot sue in the Philippines a defendant who does not reside in the Philippines and who is not found in
the Philippines. The cases excepted are those enumerated in Section 15.

The first is when the case involves the civil status of the plaintiff, when it relates to a property in
the Philippines over which the defendant has an interest or it relates to a property and the prayer

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sought is to exclude the defendant from an interest over that property, or when properties of this
defendant have been attached.

On the other hand, in the next section 16, the situation contemplated is that the defendant is a
resident of the Philippines but he is out of the Philippines temporarily. Section 16 appears to authorize
the court to order the publication of the summons in order to enable the court to acquire jurisdiction.
So that you must have learned in civil procedure that even if an action is purely personam, like an action
to recover sum of money, as long as anyone of the requirements in section 14 or 16 are present and the
plaintiff asks for publication of the summons, the court can properly grant the motion which will enable
the court to acquire jurisdiction over the person of this defendant, regardless of the nature of the action
whether the action is purely in personam.

In an action in personam where defendant cannot be served with summons personally, action must
first be converted into an action in rem or quasi in rem before court can acquire jurisdiction over the
person through service of summons by publication ruling in Citizens Surety stands.

An action that is purely in personam is illustrated by a complaint for the recovery of money/ an
unpaid loan. That is an action purely in personam. So that since 1997, everybody is of the belief that if
the defendant is out of the Philippines even temporarily, or he is sued as an unknown defendant or his
whereabouts are unknown, as long as the plaintiff can show that personal service and substitute service
could not be carried out properly, his last recourse is to file a motion in court for leave to publish the
summons. And if so granted then the court will acquire jurisdiction over the person of the defendant.
Last year the Supreme Court came out with a case, the title of the case is Jose vs. Boyon decided in
October 2003, where the Supreme Court reverted to the old doctrine that when the case is purely
personam, publication of the summons even if allowed by court will not be enable the court to acquire
jurisdiction over the person of the defendant. So, it seems that we should still follow the doctrine laid
down in that old case of Citizens Surety vs. Herrera. You are familiar probably with that case.

In that case of Citizens Surety vs. Herrera, which was decided long before these 1997 Rules were
promulgated, the doctrine was this: if an action is purely personam, before the court could acquire
jurisdiction to try the case and the defendant could not be served by service in person, or personal
service, before the court could acquire jurisdiction by service of summons through publication, the
action in personam must first be converted into an action in rem or quasi in rem. That was the
doctrine long held before the 1997 Rules were enacted. But as presently crafted, again, sections 14, 15
and 16 seem to have abandoned that doctrine. But in 2003 case of Jose vs. Boyon the Supreme Court
has emphasized that old doctrine in Citizens Surety that before we can publish summons, the action in
personam must first be converted into an action in rem or quasi in rem.

If you have forgotten that case of Citizens Surety vs. Herrera, the facts are substantially like this,
a complaint was filed against the defendant for the recovery of a sum of money. So that was clearly an
action in personam. The sheriff submitted his return to the court and in the return by the sheriff it was
clearly indicated by him that he could not find the defendant, so that he could not serve summons upon

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him personally. The sheriff also submitted a return that substitute service could not be carried out
because the sheriff does not know where the defendant lived. Since summons could not be served by
personal service or substitute service, the plaintiff file a motion in court asking the court for permission
to publish the summons, to enable the court to acquire jurisdiction over the case. Nobody objected of
the course to that motion because the defendant could not be located. Since there was no opposition to
the motion and the plaintiff was insistent that the court issue this order, the court issued that order. The
court told the plaintiff: Alright, you publish the summons once a week for three consecutive weeks
and the plaintiff complied with that order. After the publication of the summons, the plaintiff returned
to the court this time the plaintiff asked the court to declare the defendant in default because the
records did not show that an answer was filed by the defendant, this time Judge Herrera when he was
confronted with the motion, the judge told the plaintiff, Wait I will not grant your motion; you first
explain why your complaint should not be dismissed. Because it seems that the court has not acquired
jurisdiction over the person of the defendant. The plaintiff retorted: But you were the one who
authorized me to publish the summons. Now that I have published the summons you are asking me to
explain why my complaint should not be dismissed. The judge said But that is our jurisprudence. Your
complaint is one in personam and you have not converted the action in personam to in rem or quasi in
rem. So the court has not acquired jurisdiction over the case. Because the plaintiff could not give a
decent explanation, which was really impossible , the court issued an order dismissing the complaint.
Well the plaintiff was not satisfied ; in fact the plaintiff was irritated. The plaintiff felt that he was double
crossed by the court. And the plaintiff went to the Supreme Court and the Supreme Court said: The
judge is correct. When the action is purely in personam before summons could be published in order to
enable the court to acquire jurisdiction, that action in personam must first be converted into in rem or
quasi in rem. And the Supreme Court reverting to this old rule further said: And it is easy to convert an
action in personam into an action in rem or quasi in rem. All that the plaintiff needs to do is to look for a
property in the Philippines belonging to the defendant and have it attached. Then the plaintiff thought.
How could I ask the court to attach a property of the defendant when the defendants whereabouts are
unknown or he is even an unknown defendant? And why will the court issue a writ of preliminary
attachment if the court has not acquired jurisdiction over the defendant in the first place? It seems that
the plaintiff forgot Rule 57, because in Rule 57 it is expressly provided that a preliminary attachment
may be issued if the defendant could not be located in the Philippines. So there was no problem at all, it
is quite easy for the plaintiff to convert his action in personam into in rem or quasi in rem by the simple
expedient of attaching properties of the defendant in the Philippines. Of course, the problem here is
looking for properties of the defendant in the Philippines. If properties in the Philippines could not be
located then it is also useless to ask for a writ of preliminary attachment. But the assumption, is that the
plaintiff should have enough resources to look for properties of the defendant in the Philippines that
could be the subject of a writ of preliminary attachment.

Since the Supreme Court agreed with the trial court, the next problem confronted by the
Supreme Court was this: if we are going to affirm the dismissal of the case and the case is eventually
dismissed, it is possible that by the time plaintiff is able to locate properties in the Philippines belonging
to the defendant and he files a succeeding complaints/ a new complaint asking for preliminary
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attachment, prescription might already set in. So if it takes the plaintiff a very long period of time to look
properties and the case in the meantime has been dismissed, it is also possible that by the time
properties are located his cause of action would have already prescribed. So if he files another case,
another problem will confront the plaintiff. That is the dismissal of the second complaint by reason of
prescription, which you know very well is one of the non-waivable offenses.

In order to avoid this situation, the Supreme Court modified the judgment of the trial court. The
Supreme Court said: The trial court is correct in saying that it did not acquire jurisdiction over the case.
But the trial court committed an error in dismissing the case. What the trial court should have done is to
archive the case, place the matter in the archives of the court. Placing the case in the archives of the
court is different from dismissing the case. If a case is archived it remains to be in the records of the
court as an action as an action duly filed in court.

Now, how will archiving the case benefit the plaintiff in the sense that archiving of the case will
prevent prescription from setting in? According to the court, if a case is sent to the archives the only
consequences is that it will not be considered as an active case. But still there is a case that is pending in
court, and under the Civil Code prescription does not start to run if there is a case that is pending in
court. So, that decision of the Supreme Court in Citizens Surety vs. Herrera reaffirmed that doctrine that
before the court acquire jurisdiction over a case in personam through publication that case must first be
converted into one that is in rem or quasi in rem.

What if it is not possible to convert the action in personam into in rem or quasi in rem?

Now, if it is not possible to convert the action in personam into in rem or quasi in rem. The
remedy of the court is not to dismiss the case but send the records to the archives to be reactivated
when the plaintiff is able to locate properties of the defendant in the Philippines. These were the
doctrines in Citizens Surety vs. Herrera until again the 1997 Rules came out. And as I said if you are
going to read sections 14, 15 and 16, it would seem that this case was abandoned by the 1997 Rules. But
again in this 2003 case of Jose vs. Boyon, the Supreme Court reiterated that there was no intention on
the part of the Supreme Court to abandon the Herrera doctrine in adopting the 1997 Rules of Civil
Actions. So, again, the rule applicable up to the present is that in actions purely in personam, before
summons by publication could enable the court to acquire jurisdiction over the case, the action must be
converted from in personam into in rem or quasi in rem. And the conversion could easily be done by
attaching properties of the defendant in the Philippines.

Since, we have reverted to this doctrine Citizens Surety vs. Herrera, we are also reverting to the
old precept that when the action is purely in personam converted into quasi in rem because properties
of the defendant in the Philippines are subject to preliminary attachment, if the defendant does not
respond at all, he does not file an answer, the case will remain to be an action quasi in rem or in rem as
the case may be. But if the defendant later on files an answer to the complaint, the action will be
reconverted from quasi in rem into personam. So we took this up some time ago. We have a situation

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where a case starts in personam, it is converted into quasi in rem and it is converted into in personam
once more simply because the defendant has filed an answer after the publication of the summons.

COMMENT: RESIDENTS TEMPORARILY OUT OF THE PHILIPPINES

1. RESIDENT but identity or whereabouts unknown (Section 14)

Action: Any action (in rem, in personam or quasi in rem)

Service of Summons: With leave of court, BY PUBLICATION in a newspaper of general

circulation.

2. NOT A RESIDENT and is not found in the Philippines (Section 15)

Action: In rem or quasi in rem. It either 1.) affects the personal status of plaintiff; 2.) relates to or
the subject of which is property within the Philippines in which defendant has a lien or interest.
3.) demands a relief which consist wholly or in part in excluding the defendant from any interest
in any property with the Philippines; or 4.) property of defendant has been attached in the
Philippines.

Service of summons: Extraterritorial Service: a.) with leave of court serve outside the
Philippines by personal service; or b.) with leave of court serve by publication in a newspaper of
general circulation, in which case copy of the summons and order of court must also be sent by
registered mail to the last known address of defendant. c.) any other manner the court deem
sufficient.

3. RESIDENT TEMPORARILY OUT of the Philippines (Section 16)

Action: Any action (in rem, in personam or quasi in rem)

Service of Summons: Substituted service or with leave of court, personal service out of the
Philippines as under extraterritorial.

4.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 17: Leave of Court

Any application to the court under this Rule for leave to effect service in any manner for which leave of
court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds for the application.

Rule 14 Section 18: Proof of service

The proof of service of a summons shall be made in writing by the server and shall set forth the manner,
place, and date of service; shall specify any papers which have been served with the process and the

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name of the persons who received the same; and shall be sworn to when made by a person other than a
sheriff or his deputy.

COMMENT:

The proof of service shall be made in writing by the server and shall state the manner, place and date of
service, specify any accompanying papers and the name of the person who received the summons. It shall
be sworn to if made by a person other than a sheriff or his deputy.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 19: Proof of service by publication

If the service has been made by publication, service may be proved by the affidavit of the printer, his
foreman or principal clerk, or the editor, business or advertising manager, to which affidavit a copy of
the publication shall be attached, and by an affidavit showing the deposit of a copy of the summons and
order for publication in the post office, postage prepaid, directed to the defendant by registered mail to
his last known address.

COMMENT:

A. Affidavit of the printer, his foreman or principal clerk, or of the editor, business or advertising
manager, to which affidavit a copy of the publication shall be attached; AND

B. Affidavit showing the deposit of a copy of the summons and order for publication in the post
office, postage prepaid directed to the defendant by registered mail to his last known address.

xxx ________________________________________ xxx _________________________________xxx

Rule 14 Section 20: Voluntary appearance

The defendants voluntary appearance in the action shall be equivalent to service of summons. The
inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance.

COMMENT:

Where the defendant makes a voluntary appearance in the action it shall be the equivalent to service of
summons and jurisdiction is acquired over him. Submission to the courts jurisdiction takes the form of an
appearance that seeks affirmative relief, except when the relief sought is for the purpose of objecting to
the jurisdiction of the court over the person of the defendant even if other grounds are included in a
motion to dismiss. This is also known as special appearance.

xxx ________________________________________ xxx _________________________________xxx

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 RULE 15

MOTIONS

Motions vs. Pleadings

The next rule is about Motions. The noticeable distinctions between a motion and a pleading is
the number. In Rule 6 there is an enumeration of only nine pleadings. In other words, in our system we
recognize only nine pleadings. But in Rule 15 you will notice that the Supreme Court mentions nothing
about the number of motions that could be used in a particular case. It is not possible for the Supreme
Court to enumerate all the possible motions because a motion will depend almost completely upon the
creativity of lawyer. If a lawyer cannot ask for a relief in a pleading, he can always do so in a motion. And
it is up to him to give the name of that motion.

Pleadings cannot be filed while the case is already on appeal before the Supreme Court, before
the Court of Appeals or before the Regional Trial Court. That is, if we consider a Regional Trial Court as
an appellate court. But even if the case is on appeal to these appellate courts, while pleadings can no
longer be filed, there is nothing to stop a litigant from filing motions before the appellate courts. So it is
utterly impossible for the Supreme Court to tell parties. Here is the number of motions that could be
utilized in a particular case.

Rule 15 Section 1: Motion defined

A motion is an application for relief other than by a pleading.

COMMENT:

MOTION is an application for relief other than by a pleading. A motion is NOT a pleading.

DISTINCTIONS MOTION from PLEADING

PLEADING

1. Purpose: To submit a claim or defense for appropriate judgment;

2. May be initiatory;

3. Always filed before judgment;

4. Only 9 kinds of pleading are allowed by the Rules;

5. Must be written;

MOTION

1. Purpose: To apply for an order not included in the judgment;

2. Cannot be initiatory as they are always made in a case already filed in court;
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 3. May be filed even after judgment;

4. Any application for relief not by a pleading is a motion;

5. May be oral when made in open court or in the course of a hearing or trial.

Kinds of Motions

1. Motion EX PARTE is made without the presence or a notification to the other party because
the question generally presented is not debatable (i.e Motion for extension of time to file
pleadings)

2. Motion OF COURSE is where the movant is entitled to the relief or remedy sought as a matter
of discretion on the part of the court;

3. LITIGATED MOTION is the one made with notice to the adverse party to give an
opportunity to oppose (i.e. Motion to Dismiss)

4. SPECIAL MOTION is a motion addressed to the discretion of the court.

General Rule: A motion cannot pray for judgment.

Exceptions:

1. Motion for judgment on the pleadings;

2. Motion for summary judgment; and

3. Motion for judgment on demurer to evidence.

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Rule 15 Section 2: Motion must be made in writing

All motions shall be in writing except those made in open court or in the course of a hearing or trial.

COMMENT:

General Rule: Motions must be in writing.

Exceptions: Those made in OPEN COURT or in the Course of Hearing or TRIAL.

xxx ________________________________________ xxx _________________________________xxx

Rule 15 Section 3: Contents

A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if
required by these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting
affidavits and other papers.

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COMMENT:

Contents of the Motion:

1. The relief sought to be obtained;

2. The ground upon which it is based; and

3. If required by the rules or necessary to prove facts alleged therein, shall be accompanied by
supporting affidavits and other papers.

Requisites of a Motion (not made in open court or in the course of a hearing or trial):

1. It must be in writing;

2. Hearing of Motion set by the applicant;

Except for Motions which the court may act upon without prejudice to the rights of the adverse
party (ex parte motions), every written motion shall be set for hearing by the applicant;

3. Notice and Hearing shall addressed to all parties concerned. Date of hearing must not be later
that ten (10) days from the filing of the motion (Sec. 5)

4. Motion and notice of hearing must be served at least three (3) days before the date of hearing
(three day notice rule)

5. Proof of service (Section 6);

Exceptions to the three day notice rule:

1. Ex parte motions one which does not require that the parties be heard and which the court may
act upon without prejudicing the rights of the other party;

2. Urgent Motions;

3. Motion agreed upon by the parties to be heard on shorter notice or jointly submitted by the
parties; and

4. Motions for summary judgment which must be served at least ten (10) days before its hearing.

Note: Any motion that does not comply with Sections 4,5, and 6 of this Rule (Requirements 4 and 5) is a
mere SCRAP OF PAPER.

It does not interrupt the reglementary period for the filing of the requisite pleading.

Rule 15 Section 4: Hearing of motion

Except for motions which the court may act upon without prejudicing the rights of the adverse party,
every written motion shall be set for hearing by the applicant.

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Every written motion required to be heard and the notice of the hearing thereof shall be served in such
a manner as to ensure its receipt by the other party at least three (3) days before the date of hearing,
unless the court for good cause sets the hearing on shorter notice.

Motions filed before the trial court compared to motions filed before the appellate courts (SC and
CA): RULE 15 Section 5: Notice of Hearing

The notice of hearing shall be addressed to all parties concerned, and shall specify the time and date of
the hearing which must not be later than ten (10) days after the filing of the motion.

There is also a difference in form between a motion that is filed before a trial court and a
motion that is filed before an appellate court like the Supreme Court or the Court of Appeals. In a
motion filed before a trial court in Rule 15, the motion generally must contain a notice of hearing.
Otherwise, according to jurisprudence, a motion without a notice of hearing a motion which does not
comply with the requirements in Rule 15, is a useless piece of paper it is a scrap of paper. A motion that
is filed before the Supreme Court or the Court of Appeals does not have to contain a notice of hearing.
The reason is, in the Supreme Court and in the Court of Appeals, there is no such thing as a motion day.
If a party files a motion before the Court of Appeals, or before the Supreme Court and he embodies in
his motion a notice of hearing, there is a great chance that this party will be asked to explain why he
should not be cited for contempt of court. But before a trial court, compliance with all the requisites of a
motion is a must. The requirements are found in Rule 15 that is a notice of hearing. Otherwise, the
motion is just a scrap of paper and the court has no authority to act on that motion.

Rule 15 Section 6: Proof of service necessary

No written motion set for hearing shall be acted upon by the court without proof of service thereof.

xxx ________________________________________ xxx _________________________________xxx

Rule 15 Section 7: Motion day

Except for motions requiring immediate action, all motions shall be scheduled for hearing in Friday
afternoons, or if Friday is a non-working holiday, in the afternoon of the next working day.

COMMENT:

EXCEPT motions requiring immediate action, all motions shall be scheduled for hearing on Friday
afternoons, or if Friday is a nonworking day, in the afternoon of the next working day.

Note: No motion day in the Supreme Court.

xxx ________________________________________ xxx _________________________________xxx

Rule 15 Section 8: Omnibus Motion

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Subject to the provisions of Section 1 of Rule 9, a motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available, and all objections not so included shall be deemed
waived.

In Rule 15 you should concentrate on the Omnibus Motion rule which says that a motion
attacking a pleading should contain all the grounds therein then available. Otherwise grounds that are
left out are waived except again the grounds in Rule 9, the non-waivable grounds (1) lack of jurisdiction
over the subject matter; (2) litis pendencia; (3) res judicata; (4) prescription or statute of limitations.

COMMENT:

OMNIBUS MOTION RULE motion attacking a pleading, order, judgment, or proceeding shall
include all objections then available. Objections not included shall be deemed waived except the defenses
referred in Section 1, Rule 9.

xxx ________________________________________ xxx _________________________________xxx

Rule 15 Section 9: Motion for leave

A motion for leave to file a pleading or motion shall be accompanied by the pleading or motion sought
to be admitted.

xxx ________________________________________ xxx _________________________________xxx

Rule 15 Section 10: Form

The Rules applicable to pleadings shall apply to written motions so far as concerns caption, designation,
signature, and other matters of form.

xxx ________________________________________ xxx _________________________________xxx

RULE 16

MOTION TO DISMISS

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 the venue is improperly laid;

(d) That the plaintiff has no legal capacity to sue;

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 (e) That there is another action pending between the same parties for the same cause;

(f) That the cause of action is barred by prior judgment or by the stature of limitations;

(g) That the pleading asserting claim states no causes of action;

(h) That the claim or demand set forth in the plaintiffs 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.

The first ground is absence of jurisdiction over the subject matter. Whenever you are confronted
with the problem concerning jurisdiction over the nature of the case or over the subject matter, you can
forget about the Rules of Court. There is nothing in the rules of court which has provided for jurisdiction
of courts over the subject matter. The reference should always be to BP 129. But do not also consider BP
129 as the only law that will give correct answer to a problem on jurisdiction. BP 129 is the general law
on jurisdiction and as a general law it will always give way to a special statute or a special legislation.

For instance real actions are cognizable either by a Regional trial court or an inferior court
depending upon the assessed value of the property. This is provided in BP 129. But if the real action
involves title to or possession of a subdivision lot and the dispute is between the subdivision buyer, the
case is not cognizable by a Regional Trial Court or an Inferior Court. That case is cognizable exclusively by
a quasi judicial body, the Housing and Land Use Regulatory Board, that is, by virtue of Presidential
Decree 957. Another real action for instance which is not cognizable by courts of justice either by the
Regional Trial Court or an Inferior Court will be a land covered by the Agrarian Reform Code. These
disputes are cognizable by the agencies treated by the Department of Agrarian Reform Code.

Lack of jurisdiction over the person of the defendant, this is procedural of course. How can the
defendant properly assails lack of jurisdiction over his person on the ground that summons has not been
served upon him properly when he is compelled under Rule 16 to file a corresponding motion? Does not
the filing of the motion to dismiss itself be considered as a recognition by the defendant that the court
has jurisdiction over his person? Well even if a defendant files a motion to dismiss founded on absence
of jurisdiction over the person of the defendant the mere filing of the motion to dismiss will not be
considered as submission by the defendant voluntarily of his person to the jurisdiction of the court. That
is sometimes known as a special appearance in a motion to dismiss by the defendant founded on this
ground that is lack of jurisdiction over his person.

Under the present rules, if the defendant files a motion to dismiss based on lack of jurisdiction
over his person he can also avail of the other grounds mentioned in Rule 16 which is contrary to past
jurisprudence. Under old jurisprudence, if a defendant files a motion to dismiss founded on lack of
jurisdiction over his person he should not accompany his motion with any other ground. That has been
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abandoned by the present rules. So lack of jurisdiction over the person of the defendant can be
coupled/can be accompanied by other grounds for a motion to dismiss mentioned in Rule 16.

The next ground is improper venue; we have taken up venue in Rule 4. Another ground is lack
of capacity to sue on the part of the plaintiff. Supposing it is the defendant who does not have the
capacity to be sued, will that be a ground for dismissal under Rule 16? The answer is YES. But the basis
will be failure to state cause of action, litis pendencia or otherwise known as poter accion pendant. Do
not confuse litis pendencia with lis pendens which is found in Rule 13.

Litis pendencia vs. notice of lis pendens

Notice of lis pendens is a constructive notice in real actions. Notice of lis pendens operates when
the case involves title to or possession of real property and one of the litigants request the register of
deeds to annotate at the back of the title of the property involved the fact that there is a pending action
between the plaintiff and the defendant involving this real property. The concept of a notice of lis
pendens, therefore, eliminates its use to a personal action. That is when the action involves personal
property, the litigants cannot make use of the notice of lis pendens. Notice of lis pendens is limited to its
application to a dispute involving title to real property.

Since there is an action that is already pending in court, does the interested party need
permission from the court before he can register a notice of lis pendens? The answer is NO. For the
purpose of recording a notice of lis pendens even if there is already a pending action, the Register of
Deeds has the ministerial duty to record this notice of lis pendens. The Register of Deeds cannot tell the
applicant to produce permission from the court.

Will give any advantage to the interested party if the notice of lis pendens is so registered? Will
the notice of lis pendens be an obstacle or will it prevent this property from being sold during the
pendency of the case? A notice of lis pendens is only a notice to the whole world that there is a pending
action between the plaintiff and defendant. The registered owner of the property will not prevented, he
will not be precluded from disposing of the property. So a property that carries with it an annotation of
a notice of lis pendens can be sold. It can be mortgaged. It can be encumbered. The notice of litis
pendens will not be considered as an obstacle to the conveyance of the property involved in the
litigation.

The advantage enjoyed by the applicant is that the subsequent buyer of the property or the
person who subsequently acquires a lien over the property cannot be considered as a lien holder or a
buyer in good faith. So the sale is valid, the encumbrance is valid but the sale or the encumbrance will
be subject to the outcome of the litigation.

Since notice of lis pendens could be recorded even without the permission of the court, can the
notice of lis pendens be cancelled without permission from the court? This time if it is a cancellation of
notice of lis pendens there is a need from an order of the court to carry out the cancellation. So the
registration of a notice of lis pendens does not require prior leave of court, but the cancellation of the

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notice of lis pendens requires permission from the court trying the case. So that is the concept of lis
pendens.

Litis pendencia on the other hand in Rule 16, simply means the pendency of another case
involving the same parties founded on the same cause of action. We had the occasion to talk about litis
pendencia when we are discussing splitting a cause of action. When a cause of action is split by the
plaintiff and he therefor files two or more complaints against the same defendant involving the same
subject matter and founded on the same cause of action, the rule on splitting a cause of action says that
one or more cause can be dismissed under Rule 16.

Under Rule 9 also we has a chance to talk about litis pendencia. Under Rule 9 litis pendencia is
one of the non-waivable grounds for the dismissal of the case.

Case in point: Hong Kong and Shanghai Bank vs. Aldecoa

In an old case entitled Hong Kong and Shanghai Bank vs. Aldecoa a property was mortgaged to
the bank. The mortgagor filed a complaint against the bank for the annulment of the mortgage. So that
was case # 1, a complaint for the annulment of the mortgage. During the pendency of the case, the
indebtedness became due, and the mortgagor failed to pay the obligation. So the bank decided as it did,
file a complaint for the foreclosure of the same mortgage. So the second case was a complaint to
foreclose the mortgage. The mortgagor upon receipt of the summons issued in the second case filed a
motion to dismiss founded on litis pendencia. The mortgagor argued that the mortgage cannot be
foreclosed during the pendency of his complaint for the annulment of the mortgage. The mortgagor said
If the mortgaged is annulled in my complaint then there is nothing to foreclose on the part of the bank.
So case # 2 should be dismissed and wait for the outcome of case # 1. That was a very logical approach.
It is really impossible to foreclose the mortgage that is already annulled or set aside. But the court, the
Supreme Court said that there is no litis pendencia. In other words the two cases should stand together.
So even if the first complaint is for the annulment of a mortgage and the succeeding case is for the
foreclosure of a mortgage, the two cases could stand together. The Supreme Court said that in litis
pendencia the essential requirement is that the outcome of anyone of the cases will be res judicata as to
the other, regardless of who is going to prevail in anyone of these cases.

If we are going to use that standard, the argument of the mortgagor is correct only partially. His
argument that if the mortgage is eventually annulled, there is nothing to foreclose is correct. But the
mortgagor did not take into consideration the other possibility. The other possibility is that in case #1
the court may not annul the mortgage. So if the mortgage is not annulled in case #1, there is nothing to
stop the bank from foreclosing the mortgage. So in litis pendencia the requirement that is essential is
that a decision in anyone of the cases will constitute res judicata as to the other case. Again, if the
mortgage is not annulled the second case can really push through because the foreclosure of the
mortgage is predicated on the premise that there is a valid and existing mortgage.

In 1990, a similar case came out involving this time a trust receipt, a trust receipt that served as
a collateral for a loan. The debtor also filed a complaint for the annulment of the contract treating these
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receipts. Later on during the pendency of the case, the bank filed a complaint for the recovery of the
loan founded on these trust receipts. The same arguments were presented and the court resolved the
matter on litis pendencia in a way similar to that old case of Aldecoa. So there was no litis pendencia
even if it appears initially that the two cases are interrelated and the two cases involved the same
parties, the same subject matter. What is missing again in these litigations is the essential requisite that
the decision in one of the cases must served as res judicata as to the other cases.

Failure to raise the issue of lack of jurisdiction for a considerable length of time: Tijam vs.
Sibonghanoy

Going back to lack of jurisdiction over the subject matter, one of the distinctions between
jurisdiction and venue. Is that venue is essentially waivable because it is procedural, but jurisdiction
being part of substantive law cannot be the subject of an agreement between the parties and cannot be
waived. But we all know that absence of jurisdiction over the subject matter could be the subject of
waiver as exemplified in that well known case of Tijam vs. Sibonghanoy and I assume that you are very
familiar with the doctrine in Tijam vs. Sibonghanoy.

Before the case of Tijam vs. Sibonghanoy was resolved by the court, the procedural precept was
that jurisdiction being a matter of substantive law, could not be a subject of stipulation between the
parties, it could not be the subject of waiver. In other words this was a rule that did not recognize any
exception. But in 1968, the case of Tijam vs. Sibonghanoy was decided and the court recognized this
time an exception to the rule. That is, if a party fails to raise the issue of jurisdiction for a considerable
length of time, then that party may be stopped by laches from raising the issue of jurisdiction. In Tijam
vs. Sibonghanoy the period involved was 15 years. So if you are going to answer a problem on estoppel
by laches concerning jurisdiction, you should always state that in Tijam vs. Sibonghanoy the period
involved was at least 15 years.

Also in Tijam vs. Sibonghanoy the decision to a case that was already on appeal to the Supreme
Court. The case of Tijam vs. Sibonghanoy of course originated from a Regional Trial Court. The court
clearly did not have jurisdiction over the case but nobody raised the issue of jurisdiction. The court did
not even know the extent of its jurisdiction at that time, and under our rules the court is conclusively
presumed to know the extent of its jurisdiction. But the court failed to dismiss the case for absence of
jurisdiction.

When the case was brought to the Court of Appeals several incidents also took place before the
Court of Appeals and nobody raised the issue of absence of jurisdiction. When the case went to the
Supreme Court, that was the first time when the defeated party asked the Supreme Court to dismiss the
case on the ground that the judgment was null and void because of the absence of jurisdiction over the
subject matter. Well the Supreme Court was placed in a quandary. The Supreme Court had always
advocated that when a court decides a case without jurisdiction, that decision is null and void. And it
could be assailed at anytime. But the Supreme Court took into account that the case has been pending
for 15 years, and the Supreme Court said If we are going to dismiss this case and this case will be

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returned again to the Regional Trial Court with proper jurisdiction, it is simply possible that this will
finally be decided after the lapse of another 15 year period. So the Supreme Court said This is
anomalous, we will have a case in our hands involving only the sum of not more than P2, 000 to be
finally decided after a period on 30 years. So the Supreme Court had to look for an excuse in refusing to
dismiss the case. And the Supreme Court invented this theory of estoppel by laches in questioning the
lack of jurisdiction over the subject matter.

Case of Calimlim vs. Ramirez

After the case of Tijam was decided several cases reached various trial courts and also the
Supreme Court making use of the doctrine. That is, a party cannot assail the jurisdiction of the court by
virtue of the principle of estoppel by laches, until another case came in 1982 and that case was Calimlim
vs. Ramirez. In Calimlim vs. Ramirez, the Supreme Court finally settled the question, the Supreme Court
said W still adhere to the old rule, that lack of jurisdiction over the subject matter is a question that
can be raised at anytime, at any stage of the proceedings, unless the case falls within the coverage of
estoppel by laches as enunciated in Tijam. So the rule still is that a court cannot validly decide a case
which does not fall within its jurisdiction. And the defeated party can raise this issue at anytime, at any
stage of the proceedings. That is the exception is Tijam vs. Sibonghanoy.

Another exception appears to have been recognized by the Supreme Court even if the 15-year
period is not involved or is not apparent. In one case an action was filed before the Regional Trial Court.
Lets say an action reinvindicatoria , where the assessed value of the property is only P5, 000. That case
is clearly beyond the jurisdiction of a Regional Trial Court. That complaint is cognizable exclusively by an
Inferior Court. So the court could properly dismissed that case motu propio. If the court does not dismiss
the case motu proprio and the defendant file an answer without assailing the jurisdiction of the court
and in that answer he embodies a counterclaim for the recovery of, let us say P1, 000, 000, which
counterclaim is really cognizable by a Regional Trial Court, the defendant later on cannot raise the issue
of jurisdiction over the complaint. If the defendant seeks an affirmative relief that is filing a
counterclaim, and later on he loses the case, he should suffer the consequence of his action. The
defendant could have easily asked for the dismissal of the case. But since he decided to fight it out and
the defendant even set up a counterclaim within the jurisdiction of the Regional Trial Court then the
defendant in this case is stopped. He is barred from raising the issue of jurisdiction with respect to the
complaint of the plaintiff.

The decision of Tijam vs. Sibonghanoy has been made a part of the Rules of Court. If you are
going to read Rule 47, that is, in annulment of judgment. One of the grounds for annulment of judgment
is of course lack of jurisdiction over the subject matter. Rule 47 expressly recognizes lack of jurisdiction
over the subject matter could be the basis of annulment unless estppel by laches has come in, and the
term estoppel has obvious reference to that case of Tijam vs. Sibonghanoy.

Another ground for a motion to dismiss is res judicata, which we will take up in Rule 39 and the
statute of limitations, which is prescription. As we have observed several days ago, prescription is not

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procedural in character, Prescription is part of a substantive law. In fact in the Civil Code, there is a
separate chapter devoted alone to prescription of action.

Another ground is what we call the Statute of Frauds. Again, this is not procedural in character.
The statute of fraud is embodied in, in think Article 1403 of the Civil Code. If a contract is covered by the
statute of fraud, the contract is not void, it is only unenforceable by action. And substantially, the
statute of fraud requires that contracts covered by it should be supported by an agreement in writing,
subscribed by the parties.

For instance, if the lender lends P200, 000 to the borrower without any written
acknowledgment of the existence of the loan, and later on the borrower fails to pay the obligation, can
the lender file a complaint for the recovery of the defaulted loan. If the lender files a complaint for the
recovery of the defaulted loan, can the defendant lender take advantage of Rule 16, that is, can he file a
motion to dismiss on the ground that the contract of loan falls within the coverage of the statute of
fraud? Well the answer is NO, because in the Civil Code the statute of fraud applies only to executory
contracts. In the contract of loan the lender has already delivered the money to the borrower the
agreement will not be covered anymore by the statute of fraud. So the statute of fraud as a ground for
the dismissal of the case, must refer to an action that is based on an executory contract. If the contract
has been executed, even partially, then a complaint can be filed and that complaint cannot be dismissed
under Rule 16 by using the statute of fraud as a ground therefor.

Although the Rules do not enumerate the motions that could be availed of by a litigant in
particular case there is a special kind of a motion that is given concentration by the Rules. A motion that
is given particular attention by the Rules because of its uniqueness and we are referring to Rule 16 a
motion to dismiss. You will see that this is one of the few motions to which is devoted a particular rule.
Rule 16 is particularly devoted only to a motion to dismiss. There are motions like a motion for
postponement; you do not find any particular rule talking about a motion for postponement. And her
unique motion that deserves particular attention is Rule 37 that is motion for new trial/motion for
reconsideration. But we are going to take up this motion that deserves a particular attention given by
the Supreme Court, that is in Rule 16, a motion to dismiss.

Is it possible to file several motions to dismiss successively without violating the Omnibus motion
rule?

The examiner might ask the following question: Can the defendant file a motion to dismiss
under Rule 16 one after another? In other words, can the defendant file a motion to dismiss today, if it is
denied, next week he files another motion to dismiss, and again if it is denied, the third week he files a
motion to dismiss? And if it is denied once more, he will file a fourth motion to dismiss? Do not
immediately jump into the conclusion that it is not possible. It can be done. There could be four
successive motions to dismiss filed by the defendant notwithstanding the Omnibus Motion Rule. Again,
we are just applying Rule 9 which enumerates the non-waivable motions. So that if a defendant is
served with summons and after analyzing the complaint, the defendant feels that the 4 grounds are

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available that is the four non waivable grounds: lack of jurisdiction over the subject matter,
prescription, litis pendencia, and res judicata. He can file first a motion to dismiss based on lack of
jurisdiction over the subject matter. If that is denied he can file a second motion to dismiss founded on
res judicata. If that is again denied he can file a third motion to dismiss based on litis pendencia. And
again, if that is denied he can file a fourth motion to dismiss based on prescription. In other words that
is the meaning of a non-waivable defense in Rule 9. If these defenses are available, the Omnibus Motion
Rule does not apply the defendant is given the freedom to file successively four motions to dismiss
founded on these four grounds. Because again Rule 9 clearly says that these are non-waivable defenses.

But when it comes to the other grounds for a motion to dismiss enumerated in Rule 16. Even if
all of them are available at the time of the filing of the motion to dismiss. These grounds must be
invoked in a single motion to dismiss. Otherwise, the Omnibus Motion Rule will apply. A ground that is
not incorporated in a motion to dismiss is deemed waived.

COMMENT:

A MOTION TO DISMISS is NOT a responsive pleading. It is not a pleading at all.

It is subject to the omnibus motion rule since it is a motion that attacks a pleading. Hence, it must raise all
objections available at the time of the filing thereof.

However the following grounds are NOT DEEMED WAIVABLE:

1.) Lack of jurisdiction over the subject matter;

2.) Litis pendentia;
3.) Res Judicata;
4.) Prescription.

General Rule: A court may NOT motu proprio dismiss a case unless a motion to that effect is filed by a
party thereto.

EXCEPTIONS:
1. Those cases where the court may dismiss a case motu proprio; (Sec. 1 Rule 9)
2. Sec. 3 Rule 17 (Failure to prosecute); and
3. Rule on Summary Procedure (Section 4, 1991 Revised Rule on Summary Procedure)

Distinction MOTION TO DISMISS UNDER RULE 16 from MOTION TO DISMISS UNDER RULE 33

MOTION TO DISMISS
1. Grounded on preliminary objections;
2. May be filed by any defending party against whom a claim is asserted in the action;
3. Should be filed within the time for but prior to the filing of the answer of the defending party to
the pleading asserting the claim against him;
4. If DENIED, defendant must file an answer, or else he may be declared in default. If GRANTED,
plaintiff may appeal or if subsequent case is not barred, he may re-file the case.

MOTION TO DISMISS (Demurer to Evidence)

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 1. Based on insufficiency of evidence;
2. May be filed only by defendant against the complaint of the plaintiff;
3. May be filed only after the plaintiff has completed the presentation of evidence;
4. If DENIED, defendant may present evidence, If GRANTED, plaintiff appeals and the order of the
dismissal is reversed, the defendant loses his right to present evidence.

Types of Dismissal of Action

1. Motion to Dismiss before answer under Rule 16;

2. Motion to Dismiss under Rule 17
a. Upon notice by plaintiff;
b. Upon motion by plaintiff; or
c. Due to fault of plaintiff.
3. Motion to Dismiss called a demurer to evidence after plaintiff has completed the presentation of
his evidence under Rule 33; and
4. Dismissal of an appeal.

Grounds for Motion to Dismiss

1. NO jurisdiction over the person of the defending party;

2. NO jurisdiction over the subject matter of the claim;
3. Improper venue;
4. NO legal capacity to sue;
5. Litis pendentia;
6. Res Judicata;
7. Prescription;
8. Failure to state a cause of action;
9. Claim or demand has been paid, waived, abandoned, or otherwise under the Statute of
Frauds; and
10. Claim is unenforceable under the Statute of Frauds; and
11. NON-compliance with a condition precedent for filing a claim.

The language of the rule, particularly on the relation of the words abandoned and otherwise
extinguished to the phrase claim or demand deemed set forth in the plaintiffs pleading is broad
enough to include within its ambit the defense of bar by laches (Pineda vs. Heirs of Eliseo Guevarra, G.R.
No. 168557, February 19, 2007)

NOTE: A motion to dismiss generally partakes the nature of a demurer. It hypothetically admits the
allegations stated in the complaint. However, the admission extends ONLY to material and relevant
allegations.

Requisites of Litis pendentia

1. Identity of parties or at least such parties representing the same interest in both actions;
2. There is substantial identity in the cause of action and relief sought, the relief being founded on
the same facts; and
3. The identity in the two cases should be such that any judgment that may be rendered in one,
regardless of which party is successful, would amount to res judicata in the other case.

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NOTE: It is applicable between the same parties only when the judgment to be rendered in the action first
instituted will be such that, regardless of which party is successful, it will amount to res judicata against
the second action (HSBC vs. Aldecoa & Co., GR. No. L-8437, Mar. 23, 1915)

A motion to dismiss may be filed in either suit, NOT necessarily in the one instituted first.

Requisites of Res Judicata

1. Previous judgment or order;
2. Jurisdiction over the subject matter and the parties by the court rendering it;
3. Judgment upon the merits; and
4. There must be identity of parties, of subject matter, and of cause of action between the first and
second actions.

NOTE: There could be res judicata without a trial, such as in a judgment on the pleadings (Rule 34), a
summary judgment (Rule 35); or an order of dismissal under (Section 3 of Rule 17).

PRESCRIPTION
- A motion to dismiss on the ground of prescription will be given due course only if the complaint
shows on its face that the action has already prescribed.

Distinction PRESCRIPTION from LACHES

PRESCRIPTION

1. It is concerned with the fact of delay;

2. It is a matter of time;
3. Statutory;
4. Applies at law;
5. Based on fixed time.

LACHES

1. It is concerned with the effect of delay;

2. It is a matter of equity;
3. Non-Statutory;
4. Applies in equity;
5. Not based on fixed time.

Complaint states NO cause of action

- When the ground for dismissal is that the complaint state no cause of action, such fact can be
determined only from the facts alleged in the complaint.

Failure to State a Cause of action and NOT Lack or Absence of Cause of Action
- Is the ground for a Motion to Dismiss. The former means there is insufficiency in the allegations
in the pleading. The latter means that there is insufficiency in the factual basis of the action.

Effect of Motion to Dismiss

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 1. Order granting motion to dismiss is a final order (without prejudice);
Remedy: Re File the complaint

2. Order granting motion to dismiss (with prejudice);

Remedy: Appeal

3. Order denying the motion to dismiss is interlocutory

Remedy: File answer and proceed with the trial, if decision is adverse, appeal therefrom and raise
error the denial of the motion to dismiss. If there is grave abuse of discretion amounting to lack or
excess of jurisdiction, Certiorari or Prohibition may lie under Rule 65.

Non-compliance with a Condition Precedent

Non compliance with PD 1508 (Katarungang Pambarangay Law) may result in dismissal of the
case on the ground of non-compliance with a condition precedent.

xxx ________________________________________ xxx _________________________________xxx

Rule 16 Section 2: Hearing of Motion

At the hearing of the motions, the parties shall submit their arguments on the questions of law and their
evidence on the questions of fact involved except those not available at that time. Should the case go to
trial, the evidence presented during the hearing shall automatically be part of the evidence of the party
presenting the same.

Another feature of a motion to dismiss is that the court may conduct really a trial/hearing on
this motion to dismiss. Although there are other motions also which may require the holding of a trial.
For instance, a motion for the issuance of a preliminary attachment or a motion for the issuance of a
temporary restraining order or a writ of preliminary injunction. These motions could also require the
holding of a trial.

In Rule 16 also, it is clearly provided that if the court conducts a trial on a motion to dismiss, the
evidence submitted during that hearing and everything that comes during the motion to dismiss are
deemed reproduced during the trial of the case. So that there is no need for repetition of trial that is
conducted with the court with reference to a motion to dismiss.

Can the plaintiff file a motion to dismiss under Rule 16?

Can the plaintiff file a motion to dismiss under Rule 16 himself? Well it is really foolish for a
plaintiff to file a motion to dismiss his own case based on Rule 16. If it is the plaintiff who is interested in
seeking the dismissal of his own case, he should make use of Rule 17, he should not make use of Rule
16. Rule 16 is a motion to dismiss that is designed to be used by the defending party, not by the plaintiff.
But you should also note that Rule 17 which also refers to dismissal of a case could be availed of by the
plaintiff, by the defendant, or by the court itself. But Rule 16 is designed to be used by the defending
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party. Because the first section refers to a motion to dismiss filed by the defending party before he
submits a responsive pleading.

Can the court on its own dismiss the complaint using Rule 16?

Can the court on its own dismiss a complaint using Rule 16 motion to dismiss? The answer is
YES, as long as the ground used by the court is anyone of the non-waivable grounds. If you go back to
Rule 9 in the enumeration of non-waivable defenses the court is given authority to dismiss motu propio
a case based on any of the non-waivable grounds. So the court also can dismiss a case under Rule 16 but
the grounds should be limited to those grounds enumerated in Rule 9.

xxx ________________________________________ xxx _________________________________xxx

Rule 16 Section 3: Resolution of Motion

After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment
of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor.

Just like any other motion, the court will have to resolve. And in other motions there are only
two options given to the court in resolving a motion. Either grant the motion or deny the motion. In the
case of a motion to dismiss there is a third option that is given to the court, that is, the court will not
grant the motion, the court will not deny the motion but instead the court will order amendment to the
pleadings. This is also unique feature of a motion to dismiss. It seems that it is only in a motion to
dismiss where a court is given third option that is order the amendment of a pleading.

Another unique feature of a motion to dismiss not found in other motions is that in resolving a
motion to dismiss, the court is mandated to explain the reasons which support the resolution of the
court. In other motions, the court can simply say the motion is granted because it is meritorious or
finding no merit, the motion is denied. That is the usual aptitude of the courts before other motions.
But when it comes to a motion to dismiss, whether the court grants or denies the motion or orders an
amendment to the pleading, the court must give reasons/the court must explain the basis of its
resolution either granting or denying the motion to dismiss.

COMMENT:

The court may:

1. Dismiss the action;

2. Deny the motion; or
3. Order the amendment of the pleading.

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NOTE: In resolving motion to dismiss, the court is required to give reasons for its resolution.

xxx ________________________________________ xxx _________________________________xxx

Rule 16 Section 4: Time to plead

If the motion is DENIED, the movant shall file his answer within the balance of the period prescribed by
Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any
event, computed from his receipt of the notice of the denial. If the pleading is ordered to be amended,
he shall file his answer within the period prescribed by Rule 11 counted from service of the amended
pleading, unless the court provides a longer period.

COMMENT:

Defendant is GRANTED only the balance of the reglementary period to which he was entitled at
the time he filed his motion to dismiss, counted from his receipt of the denial order, but not less than 5
days in any event.

If the pleading is ORDERED to be amended, the defendant shall file his answer within the period
prescribed by Rule 11 from service of amended pleading UNLESS the court provides a longer period.

xxx ________________________________________ xxx _________________________________xxx

Rule 16 Section 5: Effect of dismissal in relation to final orders which are not appealable under Rule 41

Subject to the right of appeal, an order granting a motion to dismiss based on paragraphs (f) that the
cause of action is barred by a prior judgment or by the statute of limitations, (h) that the claim or
demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise
extinguished;, and (i) that the claim on which the action is founded is unenforceable under the provision
of the statute of frauds; of Section 1 hereof shall bar the refilling of the same action or claim.

If a motion to dismiss is denied by the court, can the defendant assail the order of denial by
bringing it up to a higher court? Well the answer in NO. Generally, the denial of a motion to dismiss is an
interlocutory order. It cannot be questioned by appeal. Can the defendant assail the denial of his motion
by availing of Rule 65? YES, as long as he can comply with the requirements of Rule 65, that is, he can
file a petition for prohibition under Rule 65.

If a motion to dismiss is granted by the court, is the order dismissing the complaint an
interlocutory order? It is no longer an interlocutory order. An order dismissing a case by reason of a
motion to dismiss under Rule 16 is a final order. It cannot be an interlocutory order. Since it is a final
order, can the plaintiff therefore appeal from that order of dismissal? Again you have to read Rule 41 to
be able to arrive at a correct answer.

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 You see in Rule 16 itself, it is provided that if the dismissal is founded upon the grounds
enumerated in letters F, H, and I there could be an appeal. And these grounds are res judicata,
prescription; the obligation has been waived, abandoned or otherwise extinguished; when the court
finds that the claim is unenforceable under Statute of Frauds.

In other words when it comes to the granting of a motion to dismiss and the question revolves
around the remedies available to the plaintiff in assailing the dismissal of this case, do not jump into the
conclusion that since it is a final order it is appealable to higher court. Again, if you read Rule 41, there is
an enumeration of final orders, that is Section 1 of Rule 41. There is an enumeration of orders which
although considered as final, are not appealable. So not all final orders are appealable under Rule 41.
There are certain orders considered to be final which are not appealable and the only remedy that is
given to the plaintiff is petition for certiorari under Rule 65. In the enumeration of final orders which are
not appealable in Rule 41, it is mentioned that an order of dismissal without prejudice although it is a
final order, it is not appealable. The remedy in the last paragraph of section 1 of Rule 41 is not appeal
but a petition under Rule 65.

Dismissal of a complaint under Rule 16, when with or without prejudice

So, our inquiry will be along this line: is a dismissal of a complaint under Rule 16, a dismissal with
prejudice or is it a dismissal without prejudice? If the dismissal is founded upon any of the grounds
mentioned in letters F, H, and I the dismissal is with prejudice and therefore the remedy of the plaintiff
is to appeal, not to file a petition under Rule 65. But if the dismissal of a case under Rule 16 is founded
on grounds other than letters F, H, and I, the dismissal is a dismissal without prejudice and therefore the
remedy of the plaintiff is not to appeal but to file a petition for certiorari. Well of course by implication
Rule 41 tells the plaintiff if the dismissal is without prejudice you do not have to make use of Rule 65.
Since the dismissal is without prejudice all the plaintiff needs to do is to file another complaint against
the same defendant for the same cause. But if he insist on assailing the order of dismissal without
prejudice, he is precluded from taking an appeal. His only recourse is to file for certiorari under Rule 65.

So if you go through the enumeration of the grounds for a motion to dismiss: lack of jurisdiction
over the subject matter, lack of jurisdiction over the person, improper venue, failure to state a cause of
action and so on and so forth. A dismissal founded on anyone of these grounds again excepting letter F,
H, and I will be considered as a dismissal without prejudice and therefore the remedy of the plaintiff is
to file a petition for certiorari as mandated by Rule 41.

COMMENT:

General Rule: The action or claim may be re-filed.

Exception: The action cannot be re-filed if it was dismissed on any of these grounds:

1. Prescription;
2. Unenforceability under the Statute of Frauds;
3. Res Judicata;
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 4. Extinguishment of the claim or demand.

In these instances the remedy of the plaintiff is APPEAL.

xxx ________________________________________ xxx _________________________________xxx

Rule 16 Section 6: Pleading grounds as affirmative defenses

If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be
pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing
may be had thereon as if a motion to dismiss had been filed.

The dismissal of the complaint under this section shall be without prejudice to the prosecution in the
same or separate action of a counterclaim pleaded in the answer.

Rule 16 also tells us that instead of filing a motion to dismiss, the defendant could choose to file
an answer and incorporate in that answer any or all of the grounds in Rule 16 as an affirmative defense.
So, the defendant is given also a choice, either file a motion to dismiss under Rule 16 or file an answer
and make use of the available grounds as an affirmative defense.

Procedural advantage of pleading any of the grounds under Rule 16 as an affirmative defense

From the point of view of the defendant, will it be advantageous for him if he simply files a
motion to dismiss or will it be advantageous for the defendant to file an answer with affirmative
defense? Strictly from a procedural point of view, it will be more advantageous for a defendant to file an
answer with affirmative defense. Why? If the defendant files an answer with an affirmative defense,
that is, he makes use of any of the grounds in Rule 16 as an affirmative defense, he can incorporate in
that answer already a counterclaim, a permissive or a compulsory counterclaim. And then he could ask
for a preliminary hearing on these affirmative defenses as if a motion to dismiss had been filed. If the
court is convinced that the case should really be dismissed by reason of Rule 16, the court will really
order the dismissal of the case, but in Rule 16 it is provided that the dismissal of the complaint will not
prejudice any counterclaim, which the plaintiff has set up. So, the case will be dismissed but a
counterclaim set up by the defendant in his answer will not be dismissed. It can be tried by the court.

If that is the only procedural advantage, cannot the defendant also file a motion to dismiss and
embody in that motion to dismiss his counterclaim so that if the motion to dismiss is granted he will just
ask the court to go ahead and hear the counterclaim? That is not possible. A counterclaim must always
be incorporated in another pleading. A motion to dismiss is not a pleading so that it is not proper for a
defendant to file a motion to dismiss with a counterclaim. He can only file a counterclaim if he files an
answer and in that answer he makes use of any of the grounds in Rule 16 as an affirmative defense.

COMMENT:

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 If NO motion to dismiss had been filed, any of the grounds for dismissal provided for in Rule 16,
INCLUDING IMPROPER VENUE, may be pleaded as affirmative defense in the answer and a
preliminary hearing may be had thereon in the discretion of the court.

NOTE: If the defendant would want to file a counterclaim, he should NOT file a motion to dismiss,
instead he should allege the grounds of a motion to dismiss as affirmative defenses in his answer with a
counterclaim. A preliminary hearing may be had thereon, and in the event the complaint is dismissed, the
defendant can PROSECUTE his counterclaim.

The 2nd paragraph of section 6 clearly provides that the dismissal of the complaint is without
prejudice to the prosecution of the counterclaim.

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RULE 17

DISMISSAL OF ACTIONS

Dismissal under Rule 16 vs. Dismissal under Rule 17

Rule 17 is another rule which speaks about dismissal of actions. if you are going to compare Rule
17 to Rule 16, the dismissal under Rule 16 comes from the initiative of the defendant that is he files a
motion to dismiss. But in Rule 17 the dismissal comes from the initiative of the plaintiff, it could also
come from the initiative if the defendant and it could also come from the initiative of the court itself.
Rule 17 refers to dismissal of actions by notice from the plaintiff, by motion from the plaintiff, by motion
from the defendant or motu proprio on the part of the court. But the grounds of course will be different.

Rule 17 Section 1: Dismissal upon notice by plaintiff

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 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.

When the plaintiff who files a notice for dismissal under Rule 17, he does not have to give any
reason at all. So the plaintiff can simply file a notice telling the court, I am dropping my complaint. The
court cannot compel the plaintiff to give reason why he is dropping or withdrawing his complaint. But
this privilege is given to the plaintiff, the privilege to drop his complaint by mere notice before the
defendant files his responsive pleading or before a motion for summary judgment is filed.

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 So of the plaintiff files a complaint today against the defendant for the recovery of an unpaid
loan and upon receipt of the summons the defendant goes to the plaintiff and tells the plaintiff: Please
pity me, I am hard up at this time and I cannot really pay the obligation. But if you are going to dismiss
the case I will see to it that the obligation will be paid in due time. If the plaintiff takes pity and he files
a notice to drop the complaint, then the complaint will be dismissed that is upon the confirmation of the
court. After this complaint has been dismissed, and the debtor does not live up to his commitments, can
the creditor file a second complaint for the recovery of the same obligation, of course against the same
defendant? The answer is YES, because this is just the second time that the plaintiff has filed a complaint
for the recovery of this loan against the same defendant.

Two dismissal rule

Upon receipt by the defendant of the summons in the second complaint, he goes again to the
plaintiff and begs the plaintiff to spare him from embarrassment. If the plaintiff again decides to
withdraw his complaint but later on the defendant does not comply with his commitments, can the
plaintiff file a third complaint against the defendant for the recovery of this unpaid loan? If it is just a
matter of filing a complaint, the third complaint, well it can be done. The third complaint can be filed by
a plaintiff. If it is just the physical act of filing a third complaint but if that third complaint is indeed filed,
the plaintiff should NOT expect the defendant to beg him to dismiss the case this time. The defendant
will no longer approach the plaintiff. The defendant will now file a motion to dismiss the third case
based on res judicata because the second dismissal operates as an adjudication upon the merits.

But it is essential that before we apply the two dismissal rule that the court must have
jurisdiction over the cases. If any one of these cases was filed before a court without jurisdiction, the
dismissal by notice of the plaintiff, the two dismissal rule, will not have any application at all. It is
essential that the court must be a court with jurisdiction over the two cases.

If this third complaint is filed against the defendant but he neglects also to file a motion to
dismiss by reason of res judicata, can the court on its own dismiss the third complaint? Well if you are
going to use Rule 9 the answer is YES, because under Rule 9, res judicata is one of the non-waivable
defenses. So the third complaint will be dismissed upon motion by the defendant or even in the absence
of a motion by the defendant motu proprio by the court, because under Rule 17, the second dismissal
operates as an adjudication upon the merits. Meaning to say, it is as if the court has rendered a
judgment on the merits and that judgment has become final and executory.

Will the second dismissal operate as an adjudication upon the merits outright that is, upon the
dismissal of the second complaint will that dismissal operate outright as res judicata? Well the answer is
NO. You also have to observe the 15-day period before that order is entered. So that order of dismissal
is not immediately executory. It will be entered after the lapse of 15 days and before entry the plaintiff
can change his mind. The plaintiff can ask the court to lift the consequences of the two dismissal rule.

Can the first dismissal operate as an adjudication upon the merits? Generally NO, unless it is the
plaintiff himself who tells the court, I am withdrawing this complaint and I am considering my
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withdrawal as an adjudication upon the merits. So it all depends now on the attitude of the plaintiff,
when he ask for the dismissal for the first time. If he does not qualify the first dismissal as one that is
with prejudice, the first dismissal will always be considered as a dismissal without prejudice.

Can the plaintiff qualify his second dismissal as a dismissal without prejudice? The answer is NO,
the second dismissal will always be a dismissal with prejudice. The second dismissal will always operates
as an adjudication upon the merits even if the plaintiff tells the court that he is dismissing the second
complaint without prejudice.

COMMENT:

DISMISSAL is effected not by motion but by mere NOTICE of dismissal which is a matter of
right before the SERVICE of;

1. The answer; or

2. A motion for summary judgment.

NOTE: The dismissal as a matter of right ceases when an answer or a motion for summary judgment is
SERVED on the plaintiff and NOT when the answer or the motion is FILED with the court. Thus, if a
notice of dismissal is filed by the plaintiff even after an answer has been filed in court but before the
responsive pleading has been served on the plaintiff, the notice of dismissal is STILL A MATTER OF
RIGHT.

The rule requires a COURT ORDER confirming the dismissal.

Such dismissal is WITHOUT prejudice EXCEPT:

1. Where the notice of dismissal so provides; or

2. Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction.
(Two dismissal Rule).

Two Dismissal Rule applies when the plaintiff has a.) twice dismissed actions; b.) based on or including
the same claim; c.) in a court of competent jurisdiction.
The second notice of dismissal will bar the refilling of the action because it will operate as an adjudication
of the claim upon the merits.

If the plaintiff files a notice of dismissal providing therein a reason that prevents the refilling of
the complaint, the dismissal must be deemed one with prejudice. This happen when the notice
provides that the plaintiff recognizes the fact of prescription or extinguishment of the obligation
of the defendant or for reasons stated in Sec. 5 of Rule 16
xxx ________________________________________ xxx _________________________________xxx

Rule 17 Section 2: Dismissal upon motion of plaintiff

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Dismissal upon motion of plaintiff Except as provided in the preceding section, a complaint shall not be
dismissed at the plaintiffs instance save upon approval of the court and upon such terms and conditions
as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon
him of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. The dismissal
shall be without prejudice to the right of the defendant to prosecute his counterclaim in a separate
action unless within fifteen (15) days from notice of the motion he manifest his preference to have his
counterclaim resolved in the same action. Unless otherwise specified in the order, a dismissal under this
paragraph shall be without prejudice. A class suit shall not be dismissed or compromised without the
approval of the court.

In the next section, the plaintiff is still given the prerogative to dismiss his own complaint. But
this time the dismissal by the plaintiff should be with permission, from the court, that is, with leave of
court, after the defendant has filed an answer. If you look at the problem, from a practical point of view,
even if the defendant has already filed an answer, but it is the plaintiff who ask for the dismissal of his
own complaint, the defendant really should not object to the dismissal of that complaint because that is
for the benefit of the defendant. But the defendant may have some reasons for objecting to the
dismissal by the plaintiff himself after he has filed his answer. One good reason is when he has
incorporated or embodied in his complaint a counterclaim. If the defendant has embodied in his answer
a counterclaim, the dismissal by the plaintiff after the filing of the answer will not affect the
counterclaim, so the counterclaim could stand.

Will this principle be applied even if the counterclaim is compulsory in character? Well, Rule 17
tells us that the counterclaim filed by the defendant will stand regardless of the nature of the
counterclaim. So we meet a situation where a compulsory counterclaim is not affected by the dismissal
of the complaint itself. Generally, if a complaint is dismissed the ancillary proceedings in that complaint
will also be dismissed. But in Rule 17, it recognizes this instance where a complaint is dismissed but the
ancillary proceeding concerning the compulsory counterclaim will not be affected. In fact Rule 17 gives
to the defendant an option. The defendant can ask the court to try the compulsory counterclaim or he
can ask the court also to dismiss his counterclaim although compulsory in character, without prejudice
to his pursuing the same counterclaim in an independent action.

COMMENT:

Under this section, the dismissal of the complaint is subject to the DISCRETION of the court and upon
such terms and conditions as may be just.

If a counterclaim has been pleaded by the defendant PRIOR TO THE SERVICE upon him of the
plaintiffs motion for dismissal, the dismissal shall be LIMITED TO THE COMPLAINT.

Such dismissal shall be without prejudice to the right of the defendant to either:

1. Prosecute his counterclaim in a separate action; or

193
 2. To have the same resolved in the same action. In this case, defendant must manifest such
preference to the trial court within fifteen (15) days from notice to him of plaintiffs motion to
dismiss.

These alternative remedies of the defendant are available to him regardless of whether his
counterclaim is compulsory or permissive.

Dismissal under this Rule is WITHOUT PREJUDICE, i.e. the complaint can be re-filed EXCEPT:

1. When otherwise stated in the motion to dismiss; or

2. When stated to be with prejudice in the order of the court.

The approval of the court is necessary in the dismissal or compromise of a class suit.

xxx ________________________________________ xxx _________________________________xxx

Rule 17 Section 3: Dismissal due to the fault of the plaintiff

Dismissal due to fault of plaintiff If, for no justifiable cause, the plaintiff fails to appear on the date of
the presentation of his evidence in chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may
be dismissed upon motion of the defendant or upon courts motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have
the effect of adjudication upon the merits, UNLESS otherwise declared by the court.

The third section of Rule 17 provides for other grounds for the dismissal of a complaint. And the
third section speaks about a dismissal upon motion by the defendant and upon the initiative of the court
itself. If the plaintiff does not appear during a trial scheduled for the presentation of his evidence in
chief. The defendant can ask for the dismissal of the case and the dismissal is a dismissal with prejudice
unless the court otherwise qualifies. If the plaintiff fails to obey an order of the court or fails to comply
with the provisions of the Rules of Court, the case could also be dismissed and the dismissal again is with
prejudice unless otherwise classified.

Rule 17 is emphatic in saying that it is in absence of the plaintiff during the trial scheduled for
the presentation of his evidence in chief. So if the plaintiff does not appear during the trial set for the
presentation by plaintiff of rebuttal evidence, the defendant cannot ask for the dismissal of the
complaint. Because the presentation by the plaintiff of rebuttal evidence means that he plaintiff has
already submitted his evidence in chief. So it is not the absence of the plaintiff in any stage of the trial
that will justify the dismissal of the complaint. It is his absence in a trial where the court has rescheduled
the presentation by the plaintiff of his evidence in chief. So you should know the distinctions between
evidence in chief and rebuttal evidence, so we could properly apply the provisions of Rule 17.

Another ground is when the plaintiff neglects to prosecute his claim for an unreasonable length
of time. In one case, the plaintiff filed a complaint, against the defendant for the recovery of money.
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Somehow, the plaintiff failed to follow up the issuance of the summons, so the summons was already
prepared by the clerk of court, but nobody picked up the summons from the office of the clerk. So that
case could not move for a long period of time. When the court inventoried the cases pending before it,
the court discovered this case. It was filed, summons was prepared by the court, but nobody picked up
the summons, so the case really became inactive. Could the court dismiss that complaint on the ground
of nolle prosequi, that is failure by the plaintiff to prosecute his claim for an unreasonable length of
time? The court said Of Course. That is a perfect example of a case where the plaintiff has failed to
prosecute his complaint for an unreasonable length of time.

In the rule on pre-trial, in the next rule it is also provided that when all the pleadings have been
submitted to the court, it is the duty of the plaintiff to file an ex parte motion, to set the case for pre-
trial. That is no longer the burden of the clerk of court. It is the duty of the plaintiff to file a motion
setting the case for pre-trial conference. And the motion is one of the few motions, which the court
recognizes as one that could be filed ex parte.

Here is a complaint filed by the plaintiff, the defendant has already filed his answer and the
plaintiff chooses not to file a reply. But the plaintiff does not file a motion to set the case for pre-trial. So
the court does not scheduled any pre-trial for this particular case. The court waits for the motion coming
from the plaintiff but the court waits in vain. Can the court now dismiss the complaint on the ground
that the plaintiff failed to prosecute his claim for an unreasonable length of time? Of course YES. A
motion to set the case for pre-trial after all the pleadings have been submitted is now the duty of the
plaintiff. If he fails to file the correlative motion, he is guilty of violating certain provisions of the Rules of
Court. Dismissal by reason of the failure of the plaintiff to prosecute for an unreasonable length of time
nolle prosequi is also a dismissal with prejudice unless the court in the order specifies that the
dismissal is without prejudice.

Remedy of the defeated party under RULE 17 in relation to RULE 41

Still on Rule 17, what is the remedy of the defeated party in Rule 17? Just like in Rule 16 before
we could give the right remedy, we have to consult Rule 41. So in reading Rule 16 and Rule 17 we should
always refer to Rule 41. We said that in Rule 41, an order may be a final order but it may not be
appealable. That used to be the old doctrine that a final order can always be challenged by the usual
mode of appeal. But this concept has been changed entirely by Rule 41. Final order may be appealable,
it may not be appealable under Rule 41. And in Rule 17 just like in Rule 16, the order of dismissal is final
but it may be a dismissal with prejudice or without prejudice. If the final order is with prejudice, it is
appealable. But if the final order is without prejudice, it is not appealable under Rule 41. And the
remedy given in Rule 41 when it comes to a final order that is without prejudice is a petition under Rule
65, that is petition for certiorari. And again in Rule 17 the order of dismissal may be with prejudice, it
may be without prejudice. So accordingly the remedy of the defeated party is the one that is mentioned
in Rule 41. We should again determine whether the final order is with prejudice or without prejudice.

COMMENT:

195
Causes for Dismissal

1. Plaintiff fails to appear for NO justifiable cause on the date of the presentation of his evidence in
chief on the complaint;

2. Plaintiff fails to prosecute his action for an unreasonable length of time (Nolle prosequi);

3. Plaintiff fails to comply with these Rules or any order of the court.

The plaintiffs failure to appear at the trial after he has presented his evidence and rested his case
DOES NOT WARRANT the dismissal of the case on the ground of failure to prosecute. It is
merely a waiver of his right to cross-examine and to object to the admissibility of evidence
(Jalover vs. Ytorriaga, G.R. No. L-35989, Oct. 28, 19770

Complaint may be dismissed:

1. Upon motion of the defendant; or

2. Upon the courts own initiative.

Dismissal shall have the effect of an ADJUDICATION UPON THE MERITS (RES JUDICATA), unless
otherwise declared by the court or if the court has not yet acquired jurisdiction over the person of the
defendant.

xxx ________________________________________ xxx _________________________________xxx

Rule 17 Section 4: Dismissal of counterclaim, cross-claim, or third party complaint

The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third party
complaint. A voluntary dismissal by the claimant by notice as in Section 1 of this Rule, shall be made
before a responsive pleading or a motion for summary judgment is served or, if there is none, before the
introduction of evidence at the trial or hearing.

COMMENT:

A DISMISSAL or discontinuance of an action operates to annul orders, rulings or judgments previously

made in the case, as well as all proceedings had in connection therewith and renders all pleadings
ineffective. (Servicewide Specialist Inc. vs. CA, GR. No. 110597, May 8, 1996)

xxx ________________________________________ xxx _________________________________xxx

RULE 18

PRE-TRIAL

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 The next rule marks the start of the second stage of a life of a civil action. The first stage being
the stage for pleadings. The next rule that is Rule 18 talks about pre-trial, that is the next stage in the life
of civil cases. And for the purpose of pre-trial, I suggest that you read a new law RA 9285. This is the law
that institutionalizes the use of the system of alternative dispute resolution: mediation, conciliation,
arbitration combination of these ADRs.

Another rule which you should read in relation to Rule 18 is Rule 118 that is in criminal
procedure the pre-trial in criminal procedure. And then another is Rule 48 that is preliminary
conference in cases pending before the appellate courts. And another law that should be read in
relation to pre-trial is title 14 of the civil code, the title on compromise and arbitration. These are all
related to Rule 18.

Pre-trial in a civil case vs. pre-trial in criminal case

We should compare the pre-trial in a civil case and the pre-trial in a criminal case in order to
avoid confusion given that a pre-trial is MANDATORY in both cases. We should also take note that even
in cases governed by summary procedure, a preliminary conference is mandatory. The message given in
the enactment of this new law 9285 as well as Rule 18 and then Rule 48 is that an amicable settlement
of a civil case is a matter of public policy. In fact if you read the Civil Code, it is provided that the court
should always endeavor to convince the litigants to a civil case to settle their differences amicably and
Rule 18 on pre-trial is the means by which the courts implement this public policy on compromise and
arbitration. Since pre-trial is MANDATORY, it means to say that the court cannot simply do away with it
even if it is with the consent of the parties. The court must conduct a pre-trial in both civil and criminal
cases.

The first obvious difference between pre-trial in criminal and civil case is found in some of the
purpose. In a civil case the primordial purpose is to enable the parties to settle their differences
amicably that is to enter into a compromise agreement. That is not one of the purposes of a pre-trial in a
criminal case because it is the interest of the state, a violation of a penal law that is involved. But with
respect to the civil liability arising from the crime, the Civil Code still encourages that there be an
amicable settlement between the accused and the victim and the compromise will be without prejudice
to the prosecution of the criminal aspect of the violation.

Another distinction between a pre-trial in civil and criminal cases is the absence of a pre-trial
brief in criminal cases. In a civil case the parties are required to submit a pre-trial brief otherwise the
court could impose sanctions for each violation. In a criminal case, there is NO need for the accuse,
there is NO need for the prosecutor to submit pre-trial brief to the court. And therefore, in a criminal
case if the parties do not submit a pre-trial brief the court could not impose any sanction at all.

Another difference between the pre-trial in a criminal and civil case is that a criminal case, while
the parties can stipulate on facts and on the admission of certain exhibits, criminal procedure requires
that the stipulation of facts must be reduced into writing and signed, by the accused and his counsel.
Otherwise the facts so stipulated will not be admissible against the accused. In a civil case stipulation of
197
facts arrived at during the pre-trial conference need not be reduced into writing. After all, courts now
are courts of record and there is always a stenographer who will be around taking down the admission
and stipulations entered into between the parties. In a criminal case of course, there is always a court
stenographer that is present but for evidentiary purposes criminal procedure requires that all
stipulations in a criminal case must be reduced into writing signed by the counsel and the accused.
Otherwise these stipulations will not bind the accused.

Rule 18 Section 1: When conducted

When conducted. After the last pleading has been served and filed, it shall be the duty of the plaintiff
to promptly move ex parte that the case be set for pre-trial.

COMMENT:

PRE-TRIAL is a mandatory conference and personal confrontation before the judge between the parties
and their respective counsel.

After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex-
parte that the case be set for pre-trial.

Specifically, the motion is to be filed within five (5) days after the last pleading joining the issue
has been served and filed (administrative circular no. 3-99 January 15, 1999). If the plaintiff fails
to file said motion within given period, the branch clerk of court shall issue NOTICE OF PRE-
TRIAL.

NOTE: The LAST PLEADING need not be literally construed as the actual filing of the last pleading.
For the purposes of the pre-trial, the expiration of the period for filing the last pleading is sufficient.
(Sarmiento vs. Juan, G.R. No. 56605, Jan. 28, 1983)

xxx ________________________________________ xxx _________________________________xxx

Rule 18 Section 2: Nature and purpose

Nature and purpose The pre-trial is mandatory. The court shall consider:

(a) The possibility of an amicable settlement or of a submission to alternative modes of dispute

resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid
unnecessary proof;

198
 (e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing
the action should a valid ground therefor be found to exist;

(h) The advisability of necessity of suspending the proceedings; and

(i) Such other matters as may aid in the prompt disposition of the action;

In a civil case one of the purposes of a pre-trial conference aside from the possibility of amicable
settlement is for the court to determinate the possibility of suspending the action. That is mentioned in
Rule 18. But if the court is given the discretion to determine whether or not the proceeding should be
suspended, there should at least be grounds for the suspension of the action. Rule 18 does not mention
the grounds that could justify the suspension of an action. It does not mean to say that there are no
justifiable grounds. The grounds for the suspension of the action are contained in the Civil Code, in Title
14 of the Civil Code. There are certain articles which enumerate the instance which will justify the court
in issuing an order for the suspension of action.

COMMENT:

The court shall consider:

1. The possibility of an amicable settlement or of a submission to alternative modes of dispute

resolution;

2. The simplification of issues;

3. The necessity or desirability of amendments to the pleadings;

4. The possibility of obtaining stipulations or admission of facts and documents to avoid

unnecessary proof;

NOTE: The process of securing admissions, whether of facts or evidence, is essentially voluntary. When
the parties are unable to arrive at a stipulation of agreed facts, the court must close the pre-trial and
proceed with the trial of the case. (Filoil Marketing Corp. vs. Dy Pac & Co., G.R. No. 29636, Sep. 30,
1982)

5. The limitation of the number of witness;

6. The advisability of a preliminary reference of issues to a commissioner;

7. The propriety of rendering judgment on the pleadings, or summary judgment, or of

dismissing the action should a valid ground therefor be found to exist;

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 8. The advisability or necessity of suspending the proceedings; and

9. Such other matters as may aid in the prompt disposition of case.

xxx ________________________________________ xxx _________________________________xxx

Rule 18 Section 3: Notice of Pre-Trial

Notice of pre-trial The notice of pre-trial shall be served on counsel, or on the party who has no
counsel. The counsel served with such notice is charged with the duty of notifying the party represented
by him.

COMMENT:

The NOTICE of PRE-TRIAL shall be served on counsel, or on the party who has NO
COUNSEL. The counsel served with such notice is charged with the duty of notifying the party
represented by him

xxx ________________________________________ xxx _________________________________xxx

Rule 18 Section 4: Appearance of parties

Appearance of parties - It shall be the duty of the parties and their counsel to appear at the pre-trial. The
non-appearance of a party may be excused only if a valid cause is shown therefor or if a representative
shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of
documents.

Appearance of parties; counsel must be armed with power of attorney if party cannot attend pre-trial

During the pre-trial conference which as we said earlier is the duty of the plaintiff to have it
scheduled, generally the Rules require the presence of the party and the counsel. If a party cannot
attend the pre-trial conference, the party is required to give a power of attorney to anybody or to his
counsel. That is power of attorney in writing that will empower the attorney in fact, to enter into
stipulations to submit to arbitration or other alternative dispute resolution, or to enter into a
compromise agreement. This is a departure from an old ruling of the Supreme Court which held that if a
lawyer goes to court to attend a pre-trial conference and he is not armed with a written power of
attorney he can always tell the court that he is so empowered and the court can take it as true because
a lawyer is an officer of the court. Rule 18 has changed the picture. Even if it is a lawyer who appears
and on behalf of a client, during pre-trial conference he must be armed, he must have in his possession a
power of attorney in writing which empowers the lawyer to perform these three acts they are expressly
enumerated in Rule 18.

In one case, after the court has terminated the pre-trial conference, the parties received from
the court an order scheduling another pre-trial. The defendant chose not to attend the second pre-trial

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conference since the first one had long been terminated, the court sanctioned the defendant. The
Supreme court said that after the termination of the pre-trial conference it is arbitrary and capricious on
the part of the trial court to schedule another pre-trial conference. So if the parties do not attend the
second scheduled pre-trial conference the trial court cannot validly imposed sanctions but what is
essential is that the first pre-trial conference must have been terminated by the trial court.

COMMENT:

BOTH the parties and their counsel must appear at the trial

When non-appearance of a party may be EXCUSED:

1. If a valid cause is shown therefor; AND

2. If a representative shall appear in his behalf fully authorized in writing to:

a. Enter into an amicable settlement;

b. Submit to alternative modes of dispute resolution; and

c. Enter into stipulations or admissions of facts and of documents.

Written authority must be in the form of Special Power of Attorney. If the party is a corporation,
the SPA must be supported by a board resolution.

NOTE: The mere presentation of such written authority is NOT sufficient, but must be complemented by
a showing of valid cause for the non-appearance of the party himself.

xxx ________________________________________ xxx _________________________________xxx

Rule 18 Section 5: Effect of failure to appear

Effect of failure to appear The failure of the plaintiff to appear when so required pursuant to the next
preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice,
UNLESS otherwise ordered by the court. A similar failure on the part of the defendant shall be cause to
allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis
thereof.

COMMENT:

Effect of Non-Appearance of Plaintiff:

Cause for the dismissal of the action. This dismissal shall be with PREJUDICE except when the court
orders otherwise. The dismissal shall have the effect of an adjudication on the merits and is thus final. The
remedy of the plaintiff is to APPEAL the order of dismissal.

Effect of Non-appearance of Defendant:

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Cause the plaintiff to present evidence ex parte and for the court to render judgment on the basis thereof.
The order to present evidence ex parte is interlocutory order and thus not appealable. The defendant may
ask for reconsideration and if the denial is with grave abuse of discretion he may file a petition for
certiorari.

NOTE: The non-appearance of the defendant in the pre-trial is not a ground to declare him in default.

xxx ________________________________________ xxx _________________________________xxx

Rule 18 Section 6: Pre-trial brief

Pre-trial brief The parties shall file with the court and serve on the adverse party, in such manner an
shall ensure their receipt thereof at least three (3) days before the date of the pre-trial, their respective
pre-trial briefs which shall contain, among others:

(a) A statement of their willingness to enter into amicable settlement or alternative modes of
dispute resolution, indicating the desired terms thereof;

(b) A summary of admitted facts and proposed stipulation of facts;

(c) The issues to be tried or resolved;

(d) The documents or exhibits to be presented, stating the purpose thereof;

(e) A manifestation of their having availed or their intention to avail themselves of discovery
procedures or referral to commissioners; and

(f) The number and names of the witnesses, and the substance of their respective testimonies.

Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

In civil cases, the filing of a pre-trial brief by both sides, both claiming party and the defending
party is MANDATORY. And to show that it is mandatory there are serious sanctions that could be
imposed by the court. If it is the plaintiff who fails to submit pre-trial brief the case could be dismissed
and the dismissal is a dismissal with prejudice, that is an adjudication on the merit. Even if the plaintiff
appears during the pre-trial conference as long as he has not submitted a pre-trial brief this sanction
could still be imposed. On the other hand, if the plaintiff submits a pre trial brief but he does not attend
the pre-trial conference, the case could still be dismissed and again the dismissal is dismissal with
prejudice.

Supposing it is the defendant who violates the rule, it is the defendant who does not submit a
pre-trial brief or he does not attend the pre-trial conference? Well the sanction is that the plaintiff will
be allowed to present the evidence ex parte. The defendant will be deprived of introducing his own
evidence or in participating during the ex parte presentation of evidence by the plaintiff.

Ex parte hearing under Rule 18 vs. Ex parte hearing under Rule 9

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 You should distinguish the consequences of an ex parte hearing ordered by the court under Rule
18 and an ex parte hearing ordered by the court under Rule 9. Under Rule 9 that is on the section
concerning default; If the defendant is declared in default and the court orders the plaintiff to present
evidence the presentation of evidence is also ex parte. In fact Rule 9 says, that the receipt of this
evidence could be delegated to the branch clerk of court. In Rule 18 if the defendant does not attend a
pre-trial conference or he fails to submit his pre-trial brief, the court could also issue an order directing
an ex parte hearing be conducted for the sole purpose of receiving the plaintiffs evidence. So in both
instances under Rule 9 and Rule 18, there is going to be an ex parte presentation of evidence.

Is there a difference between the ex parte presentation of evidence contemplated in Rule 9 and
the ex parte presentation of evidence contemplated in Rule 18? Well there is a difference, in fact it is a
very big difference when it comes to the award that can be issued, that can be given by the court to the
plaintiff. In Rule 9, if the plaintiff is allowed to present his evidence ex parte, the award to be given by
the court is limited to what has been prayed for in the complaint. That is the rule on default. In other
words if in a case for the recovery of P500,000 the defendant is declared in default and the plaintiff is
ordered to present evidence ex parte even if the evidence presented by the plaintiff convinces the court
that the plaintiff is entitled to P1, 000, 000 the award of the court will be limited to P500, 000. That is
the rule followed in Rule 9. When the defendant is in default and the plaintiff is required to submit
evidence ex parte.

In Rule 18, we do not follow that principle. If the defendant does not attend the pre-trial
conference or he does not submit a pre-trial brief and the plaintiff is allowed to present evidence ex
parte, using the same example, the claim of the plaintiff is to recover P500, 000 but after presentation of
evidence the court is convinced that the plaintiff is entitled not only to P500, 000 but to P1, 000,000, the
court can award P1, 000, 000. Why are the two instances treated differently? In Rule 18 if there is ex
parte presentation of evidence we are going to apply Rule 10 that is the rule on amendment to pleading
to conform to evidence. So if the evidence presented by the plaintiff shows that he is entitled to P1, 000
, 000 although his complaint seeks to recover only P500, 000 his complaint is deemed amended which
will enable him to recover P1, 000, 000.

In Rule 9 we do not apply the principle of amendment to pleading to conform to evidence

because Rule 9 limits the award to the amount that is sought by the plaintiff in his complaint, not more.
It could be less, but it could not be more than the relief that is prayed for in the complaint. Another
justification is that in Rule 9 the defendant is declared in default and therefore he has not filed an
answer. And if the defendant does not file an answer, the message given by the defendant is that he is
not willing to put up a fight.

In Rule 18 the defendant has filed an answer. He has already submitted to the court for
consideration negative as well as affirmative defense, meaning to say that the defendant is willing to put
up a fight, but he is not given the chance to present evidence to prove his negative and affirmative
defense because he has violated a rule that he should attend the pre-trial conference, that he should

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submit to the court his pre-trial brief. Always remember the difference between ex parte presentation
of evidence in Rule 9 and the ex parte presentation of evidence in Rule 18.

COMMENT:

Contents of the Pre-Trial Brief

1. A statement of their willingness to enter into amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;

2. A summary of admitted facts and proposed stipulations of facts;

3. The issues to be tried or resolved;

4. The documents or exhibits to be presented stating the purpose thereof;

5. A manifestation of their having availed or their intention to avail themselves of discovery

procedures or referral to commissioners; and

6. The number and names of witnesses, and the substance of their respective testimonies.

Distinction Section 2 from Section 3 of this Rule:

Section 2

1. Dismissal is at the instance of the plaintiff;

2. Dismissal is a matter of procedure, without prejudice UNLESS otherwise stated in the order of
the court or on plaintiffs motion to dismiss his own complaint;
3. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim in a
separate action unless within fifteen (15) days from notice of the motion he manifests his
intention to have his counterclaim resolved in the same action.
Section 3

1. Dismissal is NOT procured by plaintiff though justified by causes imputable to him;

2. Dismissal is a matter of evidence, an adjudication on the merits;
3. Dismissal is without prejudice to the right of the defendant to prosecute his counterclaim on the
same or separate action;

NOTE: Failure to file pre-trial brief has the same effect as failure to appear at the pre-trial conference.

Principles involved in Compromise Agreements

- The authority to compromise a litigation is NOT mandatorily required to be in writing. The vital
thing that is that the authority was made expressly. The authority to compromise if not in writing
may be established by evidence.

Compromise agreement entered without authority is NOT VALID, but unenforceable and may be
ratified. (Lim Pin vs. Liao Tan, GR. No. L-47740, July 20, 1982)
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xxx ________________________________________ xxx _________________________________xxx

Rule 18 Section 7: Record of pre-trial

Record of pre-trial The proceedings in the pre-trial shall be recorded. Upon the termination thereof,
the court shall issue an order which shall recite in detail the matters taken up in the conference, the
action taken thereon, the amendments allowed to the pleadings, and the agreements or admissions
made by the parties as to any of the matters considered. Should the action proceed to trial, the order
shall explicitly define and limit the issues to be tried. The contents of the order shall control the
subsequent course of the action, unless modified before trial to prevent manifest injustice.

A pre-trial conference plays an important role when it comes to the factum probanda the
issues that are going to be tried. Rule 18 mandates that after the termination of the pre-trial conference,
the court must issue a pre-trial order. This is required. And in the pre-trial order the court is also
mandated to state the facts stipulated upon, if there are any readmission of exhibits by the parties and
most importantly the court must indicate in the pre-trial order the issues of fact that will be tried by the
court. So the pre-trial order must contain or must enumerate the factum probanda.

It is essential that the facts in issue the probanda, contained in the pre-trial order, be similar to
the facts in issue raise in the pleadings? Or could the facts in issue stated in the pre-trial order be
different from the facts in issue mentioned in the pleadings of the parties? The facts in issue that are
given by the court in the pre-trial order are the ones that will prevail for purposes of trial. So even if the
pre-trial order contains facts in issues which are not raised in the pleadings the court will follow what is
contained in the pre-trial order. So that in determining the facts in issue in a civil case, we cannot rely
solely on the pleadings, we should rely principally on the pre-trial order. Again a fact in issue that is
contained in the pre-trial order may not be a fact in issue that is raised in the pleadings of the parties.

If you are going to read Rule 30 that is the Rule on Trial, it is also clearly provided that the trial of
the case shall be limited to the facts in issue that are enumerated in the pre-trial order. So for purposes
of ascertaining what these facts in issue are, the parties and the court will be limited by what is
contained in the pre-trial order. So it is simply possible that the facts in issue to be contained in the pre-
trial order are not even raised at all in the complaint and in the answer, or in the pleadings submitted by
the parties.

COMMENT:

1. A statement of the nature of the case;

2. The stipulations or admissions of the parties, including testimonial and documentary evidence;
3. The issues involved:
(a) Factual;
(b) Legal.
4. Number of witness; and
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 5. The dates of the trial.
The proceedings in the pre-trial shall be recorder.

The contents of the PRE-TRIAL order shall control the subsequent course of the action, UNLESS:

1. Modified before trial to prevent manifest injustice (Rule 18 Sec. 7)

2. Issues impliedly included therein or may be inferable therefrom by necessary implication;
(Velasco vs. Apostol, GR. No. 44588, May 9, 1989); and
3. Amendment to conform to evidence. (Rule 10 Sec. 5)

A party is deemed to have waived the delimitations in a pre-trial order if he failed to object to the
introduction of evidence on an issue outside of the pre-trial order, as well as in cross-examining the
witness in regard to said evidence.

Distinctions between PRE-TRIAL IN CIVIL CASES from PRE-TRIAL IN CRIMINAL CASES

CIVIL CASES

1. Set when the plaintiff moves ex parte to set the case for pre-trial;
2. The motion to set the case for pre-trial is made after the last pleading has been served and filed;
3. Considers the possibility of an amicable settlement as an important objective;
4. The proceedings are to be recorded in the minutes to be signed by either the party or his counsel;
5. The sanctions for non-appearance in a pre-trial are imposed upon the plaintiff and defendant;
6. The presence of the defendant is required, UNLESS he is duly represented at the pre-trial
conference by his counsel with the requisite authority to enter into a compromise agreement,
failing in either of which the case shall proceed as if the defendant has been declared in default;
7. The presence of the plaintiff is required at the pre-trial UNLESS excused therefrom for valid
cause or if he is represented therein by a person fully authorized in writing to perform the acts
specified in Sec. 4, Rule 18. Absent such justification, the case may be dismissed with or without
prejudice.
8. A pre-trial brief is required with the particulars and the sanctions provided by Sec. 6, Rule 18.

CRIMINAL CASES

1. Ordered by the court and no motion to set the case for pre-trial is required from either the
prosecution or the defense;
2. The pre-trial is ordered by the court after arraignment and within thirty (30) days from the date
the court acquires jurisdiction over the person of the accused.
3. Does not include the considering of the possibility of amicable settlement as one of its purpose;
4. All agreements or admission made or entered during the pre-trial conference shall be reduced in
writing and signed by both the accused and counsel, otherwise they cannot be used against the
accused;
5. The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor;
6. The accused is merely required to sign written agreement arrived at in the pre-trial conference, if
he is in conformity therewith. UNLESS otherwise required by the court, his presence therefore is
NOT indispensable. NOTE: this is aside from the consideration that the accused may waive his

206
 presence at all stages of the criminal action, except at the arraignment, promulgation of judgment
or when required to appear for identification.
7. The presence of the private offended party is NOT required at the pre-trial. Instead, he is required
to appear at the arraignment of the accused for the purposes of plea bargaining, determination of
civil liability, and other matters requiring his presence. Should he failed to appear therein, and the
accused offers to plead guilty to a lesser offense necessarily included in the offense charged, he
may be allowed to do so with the conformity of the trial prosecutor alone.
8. The rules do not require the filing of a pre-trial brief in criminal cases but only require attendance
at a pre-trial conference to consider the matters stated in Sec. 2, Rule 118.

xxx ________________________________________ xxx _________________________________xxx

RULE 19

INTERVENTION

Rule 19 Section 1: Who may intervene

Who may intervene A person who has legal interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of the court or of an officer thereof may,
with leave of court, be allowed to intervene in the action. The court shall consider whether or not the
intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and
whether or not the intervenors rights may be fully protected in a separate proceeding.

The next rule is about intervention. As we have always observed an intervenor in a civil case is a
very strange fellow. He is a queer person. He is a typical Filipino. Intervenor in tagalog I think is
translated into pakialamero something like that isnt it?

Here is a person who is not impleaded in the case, he is not a defendant. Since he is not a
defendant he cannot be expected to be bound by the decision to be rendered by the court. Because
generally, these actions are in personam and a decision to be rendered by the court will bind only the
parties and their successors in interest. But we find a situation where a stranger would suddenly decide
to tell the court, I want to join the contest between the plaintiff and the defendant. I want to be called
a litigant in an existing case. It is very unnatural for a person to be volunteering as a party in an existing
case. In fact, the natural impulse of anybody is to avoid going to court because it will mean waste of
time, waste of money, waste of everything else.

So in the matter of intervention, there should be really be a compelling reason why a stranger to
the case would really want to play the role either as a plaintiff or as a defendant in an existing litigation.
If this is the premise that we are going to follow when it comes to intervention it is very clear that

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intervention should really be a matter of discretion on the part of the court. The court should have
authority to determine whether or not this stranger should really be allowed to intervene in the case.

May there be an intervention as a matter of right?

In civil case, there is one instance where intervention is a matter of right and therefore the court
may not refuse the intervention applied for by this person and we are referring to a class suit. The law
says that any member of a class who is involved in a class suit has the right to intervene. So if the
member of a class who was not named in the complaint or in at answer decides to protect his interest
he has a right to intervene in that litigation. But outside the intervention by a member of a class,
whether or not the stranger will be allowed to intervene is left to the discretion of the trial court.

You will also notice that in intervention, the initiative comes from the intervenor. Nobody
compels him to be an intervenor. It is the stranger who files a motion for intervention and in that
motion he asks the court to allow him to be a litigant in an existing litigation.

Forced intervention

Could we have a situation where the intervention is compelled or forced? In other words, is
there a such thing as a forced intervention? There is also a thing as a forced intervention but it is not the
intervention that is contemplated in Rule 19. Forced intervention takes place in Rule 39 and also in Rule
57, that is when there is garnishment, when there is a writ of preliminary attachment issued by the
court or when there is a levy on execution issued by the court by virtue of Rule 39.

When an account is in the hands of a stranger is garnished because the account or the property
belongs to the judgment obligor, the garnishee that is the stranger, effectively becomes a forced
intervenor. Whether he likes it or not, he is subjected to the orders of the court pertaining to the
garnished account. So while intervention in Rule 19 is voluntary on the part of the intervenor, the rule
also recognizes, not rule 19, but the Rules of Court recognizes the possibility of compelling an
intervention and we calls its a forced intervention.

Motion for intervention is prohibited in summary procedure

Intervention is also one of the motions or pleadings that is prohibited in summary procedure so
there is no such thing as intervention in summary procedure.

Why will a stranger decide to be an intervenor, a litigant in an existing litigation? Rule 19 give us
four (4) compelling reasons why a stranger would want to participate in an existing case: (1) he has an
interest in the property subject matter of the litigation, or (2) he has an interest in the success of one,
(3) he has an interest giants both the plaintiff and the defendant, or (4) his situation is such that any
conveyance of the property involved might cause prejudice to his interest.

COMMENT:

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 INTERVENTION is a legal proceeding by which a person not a party to the action is permitted
by the court to become a party by intervening in a pending action after meeting the conditions and
requirement set by the Rules of Court. This third person who intervenes is one who is not originally
impleaded in the action (First Philippine Holdings Corp. vs. Sandiganbayan, 253 SCRA 30; Rule 19,
Rules of Court)

Requisites for Intervention

1. There must be a motion for intervention filed before rendition of judgment by the trial court;
2. The movant must show that he has a legal interest in the matter in litigation, the success of either
party or against the both of them;
3. The movant will be adversely affected by a distribution or other disposition of property in the
custody of the court or an officer thereof;
4. The intervention must not unduly delay or prejudice the adjudication of the rights of the original
parties;
5. The intervenors right may not be fully protected in a separate proceeding;
6. A copy of the pleading-in-intervention shall be attached to the motion and served on the original
parties.

It is never an independent proceeding but is ANCILLARY and SUPPLEMENTAL to an existing

litigation.

PURPOSE: To enable a stranger to an action to become a party to protect his interest.

It CANNOT alter the nature if the action and the issues already joined. (Castro vs. David, 100
Phil 44)

It is neither compulsory nor mandatory but only optional and permissive. (Mabayo Farms Inc. vs.
CA, GR No. 140058, August 1, 2002)

There must be a motion for intervention filed BEFORE rendition of judgment by the trial court, because
leave of court is required before a person may be allowed to intervene, by:

1. One who has a legal interest in the matter in litigation;

2. One who has a legal interest in the success of either of the parties;

3. One who has an interest against both parties;

4. One who is so situated as to be adversely affected by a distribution or other disposition of

property in the custody of the court or of an officer thereof;

NOTE: The final dismissal of the principal action results in the denial of a pending motion for
intervention.

EXCEPTION: When intervention has been allowed and the complaint in intervention has already been
filed before plaintiffs action had been expressly dismissed. (Metrobank vs. RTC Manila, Br. 39, GR No.
89909, Sept. 29, 1990)
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 Denial of motion to intervene does not constitute res judicata. Remedy of intervenor is to file a
separate action. (Asuncion vs. Pineda, GR No. L-47924, July 31, 1989)

Factor to be considered by the Court

1. Whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the
original parties; and

2. Whether or not the intervenors rights may be fully protected in a separate proceeding.

INTEREST IN THE SUBJECT means a direct interest in the cause of action as pleaded and which
would punt the intervenor in a legal position to litigate a fact alleged in the complaint, without the
establishment of which plaintiff could not recover.

LEGAL INTEREST must be one that is actual and material, direct and of an intermediate character, not
merely contingent or expectant so that the intervenor will either gain or lose by the direct operation of the
judgment.

Distinction INTERVENTION from INTERPLEADER

INTERVENTION

1. An ancillary action;
2. Proper in any of the four situations mentioned in this Rule;
3. The action is against either or both the original parties to the pending suit.

INTERPLEADER

1. An original action;
2. Presupposes that the plaintiff has no interest in the subject matter of the action or has an interest
therein, which in whole or in part, is not disputed by the other parties to the action;
3. Defendants are being sued precisely to implead him.

General rule: Intervention is a matter of discretion on the part of the court;

Exception: In CIVIL case, there is one instance where intervention is a matter of right and that is in class
suit. Every member who is involved in a class suit has the right to intervene. Outside the intervention by a
member of a class, intervention is left to the discretion of the court.
xxx ________________________________________ xxx _________________________________xxx

Rule 19 Section 2: Time to intervene

Time to intervene The motion to intervene may be filed at any time before rendition of judgment by
the trial court. A copy of the pleading-in-intervention shall be attached to the motion and served on the
original parties.

There is also a time limit within which this intervention could be had in a civil case that is at
any time before judgment is rendered. So if the case has already been decided by the court then

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intervention as a remedy is cut-off. So if the case is already on appeal to the Court of Appeals or the
Supreme Court, intervention is no longer possible.

But there are exceptional cases, where the Supreme Court itself allowed an intervention to take
place even if the case is already before the Supreme Court. In one situation, the Supreme Court said we
should allow the intervention even if the case is already on appeal to the Supreme Court because the
one who is intervening is an indispensable party. That is really a good justification. If an indispensable
party is not impleaded the judgment of the court will never become final. So if an indispensable party
decides to intervene even if the case is already on appeal, the Supreme Court said BY all means we
should allow him to intervene so that the judgment of the court in the case will at least have a chance of
becoming immutable that is, it could become final and executory under Rule 9.

Another situation where the Supreme Court itself allowed intervention even if the case was
already on appeal before the Supreme Court is when it is when the Republic of the Philippines that
decides to intervene in an appealed case. So if the Republic tells the Supreme Court We want to
intervene in this case even if the case is already on appeal well, the Supreme Court said let us allow
the Republic of the Philippines to intervene. See the Republic of the Philippines is the most powerful
entity in the country, so why not allow it to intervene if it wants to.

Since intervention is initiated by a motion just like in other motions, the court has the discretion
to grant or deny the motion. If the court grants the motion then fine, the intervenor can now submit his
pleadings either a complaint in intervention or an answer in intervention. But if the court denies the
motion, is the denial for intervention final order? We have to determine whether it is a final order for
purposes of ascertaining the remedies of the intervenor. The denial for the motion for intervention is a
final order, it puts an end to an attempt by the intervenor to be a party to the case. In so far as the
intervenor is concerned that is the end of his intervention.

Remedy for an Intervenor whose motion to intervene has been denied.

Can the intervenor whose motion for intervention has been denied appeal to a higher court?
Old cases of the Supreme Court suggest that the remedy of the intervenor is really to appeal, therefore
the intervenor should not challenge the denial of his motion for intervention under Rule 65. Can not the
intervenor challenge the denial of his motion for intervention through Rule 65 given that we now have
Rule 41 which says that a final order that is without prejudice can no longer be challenged by appeal by
a petition under Rule 65? Well that is the gray area when it comes to intervention. But jurisprudence
before the 1997 Rules is to effect that the remedy of an intervenor when his motion for intervention is
denied by the court is to appeal from that denial. So he should make use of the fifteen-day period in
order to perfect the appeal.

COMMENT:

The motion to intervene must be filed at any time BEFORE rendition of judgment by the trial
court.

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NOTE: AFTER rendition of judgment, a motion to intervene is barred, even if the judgment itself
recognizes the right of the movant. The REMEDY of the movant is to file a separate action.

Exception:

1. With respect to indispensable parties, intervention may be allowed even on appeal (Falcasantos
vs. Falcasantos, GR. No. L-4627, May 13, 1952)

2. When the intervenor is the Republic;

3. Intervention may be allowed after judgment where necessary to protect some interest which
cannot otherwise be protected, and for the purpose of preserving the intervenors right to appeal.

xxx ________________________________________ xxx _________________________________xxx

Rule 19 Section 3: Pleading-in-intervention

Pleading in intervention The intervenor shall file a complaint-in-intervention if he asserts a claim

against either or all of the original parties, or an answer-in-intervention if he unites with the defending
party in resisting acclaim against the latter.

Intervention, that is the motion for intervention, is not a pleading. It is a motion for intervention
that commences the proceedings. And this is a proceeding which is commenced by the filing of a
motion, we call it motion for intervention. If the intervention is allowed, that is the time when pleadings
are submitted by the intervenor and the pleadings that the intervenor can initially submit are a
complaint-in-intervention or an answer in intervention

If the intervenor dislikes both the plaintiff and the defendant, he files a complaint in
intervention. If the intervenor dislikes only the plaintiff he files an answer in intervention. But if he files a
complaint in intervention, the present rules require him to pay docket fees. If he does not pay docket
fees relative to his complaint in intervention, the court will not acquire jurisdiction over this complaint in
intervention. But if his pleading is only an answer in intervention there is no more need for him to file
docket fees because an answer in intervention is not an initiatory pleading for purposes of payment of
docket fees.

Now after the intervention is allowed, can the intervenor use the other pleadings enumerated in
Rule 6, like a counterclaim, cross-claim, third-party complain, and the other pleadings in Rule 6? The
intervenor is NOT precluded from availing of the other pleadings mentioned in Rule 6, as long as they,
are consistent with his initial stand as an intervenor.

COMMENT:

THE Intervenor shall file a motion for intervention attaching thereto his pleading-in-intervention.

Complaint-in-Intervention if the intervenor asserts a claim against either or all of the original parties.

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Answer-in-Intervention if the intervenor unites with the defendant in resisting a claim against the latter.

The motion and pleading shall be served upon the original parties.

xxx ________________________________________ xxx _________________________________xxx

Rule 19 Section 4: Answer to complaint-in-intervention

Answer to complaint in intervention The answer to the complaint-in-intervention shall be filed within
fifteen (15) days from notice of the order admitting the same, unless a different period is fixed by the
court.

The Rule also requires now a responsive pleading to a complaint in intervention. Impliedly, there
could also be responsive pleading to an answer in intervention. Because in ordinary cases there is also a
responsive pleading to an answer and we call that a reply. There is nothing which prohibits the filing of a
reply when the intervenor files an answer in intervention

Effect of the dismissal of the main case on the Intervention; case of Metropolitan Bank

There are two conflicting cases concerning the effect of the main case in so far as an
intervention is concerned. The premise is that intervention is always ancillary to the main case. We
cannot have an intervention unless there is a main action pending in court.

If there is a motion for intervention that has been filed but the main case is dismissed by the
court could the intervention stand on its own or will the dismissal of the main case mean that the
intervention will also be dismissed? These conflicting decisions it seems could be reconciled and will
enable us to determine whether an intervention could stand independently on its own or not, if we are
going to determine whether or not the intervention has already been allowed by the court. If the motion
for intervention has not been resolved and the main case is dismissed by the court, then the
intervention will no longer be allowed because there is no main case which can support the
intervention. But if the intervention has already been allowed by the court, the dismissal of the main
case will not necessarily lead to the dismissal of the intervention. This was the ruling in the 1990 case of
Metropolitan Bank.

In this case Metropolitan Bank, the trial court allowed an intervention and the intervenor filed a
complaint in intervention because the intervenor had an interest against both the plaintiff and the
defendant. The plaintiff and the defendant in the main case arrived at a settlement, at a compromise
agreement. Without informing the intervenor who has already filed its complaint in intervention, the
plaintiff and the defendant in the main case asked the court to dismiss the complaint. The court had no
other recourse except to order the dismissal of the main case that was the request of both the plaintiff
and the defendant. After the dismissal of the main case, the parties, the plaintiff and the defendant in
that main case returned to the court and told the court Look, the main case has already been
dismissed. So you should also dismiss the complaint in intervention that is pending before the court
because intervention is primarily an ancillary proceeding. The Supreme Court said once the
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intervention is allowed, it is possible that the intervenor can have an interest that is adverse to both the
plaintiff and defendant. And it is unfair for the court to simply dismiss the complaint in intervention that
has already been allowed simply because the main case has been dismissed. In other words, a complaint
in intervention could stand independently on its own. The dismissal of the main case will not
necessarily lead to the dismissal of the intervention. The Metropolitan Bank case refers to a complaint in
intervention, but it seems that if the pleadings submitted by the intervenor is an answer in intervention
the dismissal of the main case will also lead to that intervention. If it is a complaint again in intervention
the interest of the intervenor could be adverse to both plaintiff and defendant and therefore he can
pursue his interest against both plaintiff and defendant notwithstanding the dismissal of the main case.

You compare the situation to another case that was decided under the provisions of Rule 9. A
plaintiff filed a complaint against two defendants that is under a common cause of action. Defendant #1
filed an answer; Defendant #2 did not file an answer. So what the plaintiff did was to declare Defendant
#2 in default and the court accordingly granted the motion. So we have a situation where Defendant #1
is not in default but Defendant#2 is in default.

When the plaintiff analyzed the situation the plaintiff told himself I have Defendant#2 in
default. I have Defendant#1 who is not in default and if I am going to try the case I will be fighting
Defendant#1 and there is a chance that I might lose the case if I fight Defendant#1. So the plaintiff told
himself I might as well dismiss the case against Defendant#1 and continue the case against
Defendant#2 who is in default. After all, when a defendant is in default he could not put up a fight
anymore, he is not entitled to participate in the trial case. Should the plaintiff adopt this attitude? Can
he ask for the dismissal of the case in so far as Defendant#1 is concerned and continue with the case in
so far as Defendant#2 is concerned, given that Defendant#2 is now prohibited from participating from
the trial? The Supreme Court said that is a good move if Defendant#1 is not an indispensable party. If
Defendant#1 is indispensable party that is not a good move because if Defendant#1 is an indispensable
party and he is dropped from the complaint, the whole complaint will have to be dismissed for failure to
state a cause of action. So you have to make a comparison between this situation and the one that
obtains in intervention where the intervention could be independently tried by the court even if the
main case has already been dismissed by the court upon motion of both the plaintiff and the defendant.

Before we go any further, I notice that most of you anyway are using the codal provisions of the
Rules of Court. For economy of time, you should also read the attachment/ the index to your Rules of
Court, the index of forms. Those are official forms. They were prepared by the Supreme Court itself. So
the subsequent rules will involve certain forms appended to your Rules of court, like form#11, form#12,
form#15, form#21 and form#22. If you could read these forms and they are very short and they use
language that is very clear it is much easier to understand the concepts that are contained in the Code
itself.

For example, since we are about to take the modes of discovery, we will be meeting the terms
commission; letters rugatory is found in the rule on deposition. Commission and letters rugatory are

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I think forms # 21 and #22 of your Rules of Court. Request for admission, there is also a form for this
Modes of Discovery. A subpoena is appended I think as form #11 in the Rules of court.

It is easier to understand these matters if we have visuals, and these will constitute the visual. It
is easier to understand the concept if the form is before you. And these forms are official forms. They
were appended by the Supreme Court itself to the Rules of Court.

COMMENT:

Within fifteen (15) days from notice of the order admitting the same, UNLES a different period is
fixed by the courts.

Remedies for the Denial of Intervention

1. APPEAL; or

2. MANDAMUS, if there is grave abuse of discretion.

If there is improper granting of intervention, the remedy of the party is certiorari.

NOTE: Motion for intervention is prohibited in summary procedure.

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RULE 20

CALENDAR OF CASES

Rule 20 Section 1: Calendar of Cases

The clerk of court, under the direct supervision of the judge, shall keep a calendar of cases for
pre-trial, for trial, those whose trials were adjourned or postponed, and those with motions to set for
hearing. Preference shall be given to habeas corpus cases, election cases, special civil actions, and those
so required by law.

COMMENT:

Preference shall be given:

1. Habeas Corpus cases;

2. Election cases;
3. Special Civil actions; and
4. Those so required by law.
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Rule 20 Section 2: Assignment of Cases

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 The assignment of cases to the different branches of a court shall be done exclusively by raffle.
The assignment shall be done in open session of which adequate notice shall be given so as to afford
interested parties the opportunity to be present.

COMMENT:

NOTE: Assignment of cases is required to be done exclusively by raffle.

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RULE 21

SUBPOENA

Distinctions Subpoena from Summons

SUBPOENA

1. An order to appear and testify or to produce books and documents;

2. May be served to a non-party;
3. Needs tender of kilometrage, attendance fee and reasonable cost of production fee.

SUMMONS

1. An order to answer complaint;

2. Served on the defendant;
3. Does not need tender of kilometrage and other fees.

Rule 21 Section 1: Subpoena and Subpoena duces tecum.

Subpoena is a process directed to a person requiring him to attend and to testify at the hearing
or the trial of an action, or at any investigation conducted by competent authority, or for the taking of
his deposition. It may also require him to bring with him any books, documents, or other things under
his control, in which cases it is called a subpoena duces tecum.

COMMENT:

SUBPOENA Ad Testificandum is a process directed to a person requiring him to attend and to testify at
the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the
taking of his deposition.

SUBPOENA Duces Tecum is a process directed to a person requiring him to bring with him books,
documents, or other things under his control.

xxx ________________________________________ xxx _________________________________xxx

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Rule 21 Section 2: By whom issued

The subpoena may be issued by

a.) The court before whom the witness is required to attend;

b.) The court of the place where the deposition is to be taken;

c.) The officer or body authorized by law to do so in connection with investigations conducted by
said officer or body; or

d.) Any justice of the Supreme Court or of the Court of Appeals in any case or investigation pending
within the Philippines.

When application for a subpoena to a prisoner is made, the judge or officer shall examine and study
carefully such application to determine whether the same is made for a valid purpose.

No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in any
penal institution for appearance or attendance in any court unless authorized by the Supreme Court.

COMMENT:

Who may issue:

1. Court before whom the witness is required to attend;

2. Court of the place where the deposition is to be taken;
3. Officer or body authorized by law to do so in connection with investigations conducted by said
officer or body; or
4. Any justice of the SC of the CA in any case or investigation pending the Philippines.

SUBPOENA to a PRISONER it must be for a valid purpose. If prisoner required to appear in court is
sentenced to death, reclusion perpetua, or life imprisonment and is confined in prison must be
authorized by the SC.

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Rule 21 Section 3: Form and contents

A subpoena shall state the name of the court and the title of the action or investigation, shall be
directed to the person whose attendance is required, and in the case of a subpoena duces tecum, it shall
also contain a reasonable description of the books, documents or things demanded which must appear
to the court prima facie relevant.

COMMENT:

A SUBPOENA:

1. Shall state the name of the court and the title of the action or investigation;
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 2. It shall be directed to the person whose attendance is required; and

3. In the case of a subpoena duces tecum, it shall contain a reasonable description of the books,
documents, or things demanded which must appear to the court to be prima facie relevant.

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Rule 21 Section 4: Quashing a subpoena

The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at
or before the time specified therein if it is unreasonable and oppressive, or the relevancy of the books,
documents or things does not appear, or if the person in whose behalf the subpoena is issued fails to
advance the reasonable cost of the production thereof.

The court may quash a subpoena ad testificandum on the ground that the witness is not bound
thereby. In either case, the subpoena may be quashed on the ground that the witness fees and
kilometrage allowed by these Rules were not tendered when the subpoena was served.

If the witness cannot invoke his vitiatory right, that is he does not have vitiatory right, can the
witness go to court and ask the court to quash the subpoena? Well yes of course. The issuance by the
court of the subpoena does not mean to say that the subpoena has been properly issued or served upon
the witness. If the subpoena duces tecum calls for documents or books which are totally immaterial, or
irrelevant to the issue, or this involve the presentation of trade secrets, the subpoena can be quashed by
the court.

If it is just a subpoena ad testificandum, the witness can ignore the subpoena and he cannot be
cited guilty of contempt of court if later on he tells the court I did not obey the subpoena because I did
not have money to pay for transportation and the interested party did not give me necessary amount as
witness fees. That is a good ground for the quashal of a subpoena.

If the witness invokes his vitiatory right and therefor there is nothing which a court could do to
compel his attendance, the remedy given in the rules, is to resort to the modes of discovery. And the
modes of discovery that is proper under the circumstances is to take the deposition of the Cebu
resident.

Again the situation is a case is pending before a Regional Trial Court of Manila. The witness s a
resident of Cebu, and the Cebu resident is not willing to come to Manila to testify in the court. The
remedy is for the Manila court to go to Cebu. That is Manila court, meaning that the parties and their
counsel should go to Cebu.

If the parties are willing to go to Cebu and take the deposition of the Cebu witnesses, who will
issue the subpoena? Is it still the Manila court? If it is still the Manila court that will issue the subpoena,
the Cebu resident can again refuse to obey the order of the Manila court. For the purpose of taking the
deposition of the Cebu resident, the court that should issue the subpoena should be the Cebu court,

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because if it is the Cebu court that will issue the subpoena, then the witness can no longer avail of his
vitiatory right.

So the next question is, how can a Cebu court issue a subpoena when the Cebu court does not
know anything about the case that is pending in Manila? If you will read the rules on subpoena, this is
one of the instances where a court can issue a subpoena even if the case is not pending before that
court. So a subpoena can be issued by any court for the purpose of the taking of the deposition of a
witness. This will prevent the witness from invoking his vitiatory right, which brings us to these modes of
the statute on discovery.

COMMENT:

A. Subpoena Duces Tecum may be quashed upon:

1. Motion promptly made; and

2. Proof that:

a.) It is unreasonable and oppressive;

b.) The articles sought to be produced do not appear prima facie to be relevant to the
issues;
c.) The person asking for the subpoena does not advance the cost for the production of
the articles desired;
d.) The witness fees, and kilometrage allowed by the Rules were not tendered when the
subpoena was served.
e.)
B. Subpoena Ad Testificandum may be quashed:

a. If the witness is NOT bound thereby; and

b. The witness fees and kilometrage allowed by the Rules were not tendered when the subpoena
was served.
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Rule 21 Section 5: Subpoena for depositions

Proof of service of a notice to take a deposition, as provided in Sections 15 and 25 of Rule 23,
shall constitute sufficient authorization for the issuance of subpoenas for the persons named in said
notice by the clerk of the court of the place in which the deposition is to be taken. The clerk shall not,
however, issue a subpoena duces tecum to any such person without an order of the court.

COMMENT:

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Rule 21 Section 6: Service

Service of a subpoena shall be made in the same manner as personal or substituted service of
summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is
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served, tendering to him the fees for one days attendance and the kilometrage allowed by these Rules,
except that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or
agency thereof, the tender need not be made. The service must be made so as to allow the witness a
reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum,
the reasonable cost of producing books, documents or things demanded shall also be tendered.

COMMENT:

Service of subpoena shall be made in the same manner as personal or substituted service of
summons.

1. The original be exhibited and a copy thereof be delivered to the person on whom it is served;

2. Tendering to him the fees for one days attendance or kilometrage allowed by the Rules; except
that, when a subpoena is issued by or on behalf of the Republic of the Philippines or an officer or
agency thereof, the tender need not be made;

3. The service must be made so as to allow the witness a reasonable time for preparation and travel
to the place of attendance; and

4. If the subpoena is duces tecum, the reasonable cost of producing the books, documents, or things
demanded shall also be tendered.

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Rule 21 Section 7: Personal Appearance in court

A person present in court before a judicial officer may be required to testify as if he were in
attendance upon a subpoena issued by such court or officer.

COMMENT:

General Rule:

1. The court which issued the subpoena may issue a WARRANT FOR THE ARREST OF THE
WITNESS and make him pay the cost of such warrant and seizure, if the court should
determine that his disobedience was willful AND without just cause. (Sec. 8)

2. The refusal to obey a subpoena without adequate cause shall be deemed CONTEMPT of the
court issuing it (Sec. 9)

Rule 21 Section 8: Compelling attendance

In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of
the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province,

220
or his deputy, to arrest the witness and bring him before the court or officer where his attendance is
required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the
court issuing it shall determine that his failure to answer the subpoena was willful and without just
excuse.

Rule 21 Section 9: Contempt

Failure by any person without adequate cause to obey a subpoena served upon him shall be
deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a
court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.

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Rule 21 Section 10: Exceptions

The provisions of Sections 8 and 9 of this Rule shall not apply to a witness who resides more
than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary
course of travel, or to a detention prisoner if no permission of the court in which his case is pending was
obtained.

Subpoena which I suppose is well known to you because this is issued practically by all
government agencies, when these government agencies desire to compel the attendance of any person
as a witness. The important thing to remember in subpoena is the vitiatory right of a witness for
purposes of civil actions.

A witness if he invokes his vitiatory rights, cannot be compelled by a court to attend a hearing
or to produce documents if the subpoena is duces tecum. The vitiatory rights of a witness refers to the
privilege of a witness to ignore a subpoena properly issued by the court if he resides more than 100
kilometers away, that is from the place where the trial is going to be held by the usual course of travel.
The important thing is usual course of travel.

So if a case is pending before the Regional Trial Court of Manila, and the witness whose
testimony is desired lives in Cebu City which of course more than 100 kilometers away from Manila, the
Cebu witness can rightfully ignore the subpoena issued by the Manila court. He cannot be held in
contempt of court if he disobeys the subpoena.

Cannot the applicant for the subpoena tell the court that after all, Cebu is only 45 minutes away
from Manila by plane? The Rules use that phrase usual course of travel , and according to the
Supreme Court, usual course of travel here means land transportation.

COMMENT:

Provisions regarding the compelling of attendance (Sec. 8) and contempt (Sec. 9) do NOT
APPLY where:

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 1. Witness resides more than 100 kilometers from hi residence to the place where he is to testify by
the ordinary course of travel (vitiatory right); and

Note: This refers only to civil and NOT to criminal case. (Genorga vs. Quitain, GR No. 891, July
21, 1977)

2. Permission of the court in which the detention prisoners case is pending was NOT obtained

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RULE 22

COMPUTATION OF TIME

Rule 22 Section 1: How to compute time

In computing any period of time prescribed or allowed by these Rules, or by order of the court,
or by any applicable statute, the day of the act or event from which the designated period of time begins
to run is to be excluded and the date of performance included. If the last day of the period, as thus
computed falls on a Saturday, a Sunday, or a legal holiday in the place where the court sits, the time
shall not run until the next working day.

The next rule are self explanatory computation of time, raffle of cases. Now in computation of
time, the rules have adopted the Civil Code principle that, you exclude the first and you include the last.
The manner of computing period in the Rules of Court is just a copy of that found in the Civil Code. And
then in cases pending before courts, if the rule says, like in summons, that the period to answer is
fifteen (15) days, that 15-day period includes Saturdays and Sundays unlike in other quasi-judicial
bodies.

In certain quasi-judicial bodies, if the rules of these bodies say a party is given 15 days to submit
such and such document, usually the rules of the quasi-judicial agency exclude Saturdays and Sundays.
But when it comes to a court of justice, a 15-day period includes Saturdays and Sundays. Under the
Rules, it is only when the last day falls on a Saturday or a Sunday or a holiday where there is deemed to
be an extension of the period. That is called pretermission of holiday. So to better understand the
manner by which periods are computed in the Rules of Court, you also should refer to the provisions of
the Civil Code.

COMMENT:

The rules have adopted the New Civil Code principle in computation of time: exclude the first
and include the last.

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Rule 21 Section 2: Effect of interruption

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 Should an act be done which effectively interrupts the running of the period, the allowable
period after such interruption shall start to run on the day after notice of the cessation of the cause
thereof.

The day of the act that caused the interruption shall be excluded in the computation of the
period.

COMMENT:

Any extension of time to file the required pleading should be counted from the expiration of the
period regardless of the fact that the said due date is a Saturday, Sunday, or legal holiday (A.M. No. 002-
14-SC, as explained in Luz vs. National Amnesty Commission, GR No. 1597028, Sept. 24, 2004)

xxx ________________________________________ xxx _________________________________xxx

MODES OF DISCOVERY

Substantially, these statutes on discovery allow a fishing expedition. That is, parties can avail of
these modes of discovery even if they do not intend to present to the court as evidence, the information
or documents they have acquired through these modes of discovery. You have to relate these also to
Rule 18 on the documents of a pre-trial brief.

If you go back to Rule 18 on the contents of a pre-trial brief, one of the items required by the
Rules to be embodied in the pre-trial brief is the desire of the litigants to avail of modes of discovery.
That is an essential content of a pre-trial brief under Rule 18. These matters, the contents of a pre-trial
brief, they are not usually asked in Remedial Law, but in Legal Ethics and Practical Exercises. So you
should also know by heart the contents of a pre-trial brief, in the same way that you are supposed to
know by heart the non-waivable defenses. In procedure, there are certain items that you should
consider as your first love. Because you see a first love is just like an old song, it keeps coming back.

Sanctions for refusing to recognize the proceedings under the modes of discovery or to obey an order
of the court issued in relation to any of the modes Rule 29

And in the modes of discovery also, the general rule is that although the availment of the modes
of discovery is not MANDATORY, if availed of by a party, and the adverse party refuses to recognize the
proceedings that are taken there under, or to obey an order of the court issued in relation to any of the
modes of discovery, the serious punishment as contained in Rule 29 would be this:

(1) On the part of the plaintiff, if he refuses to obey an order of a court concerning the use of a
mode of discovery, is the dismissal of the complaint. So although the use of modes of discovery
is not MANDATORY under the Rules of court, once availed of, the adverse party is duty bound to
obey the orders of the court issued in connection with these modes of discovery.

(2) If the plaintiff ignores the order of the court, the court can order the dismissal of the case. And
this dismissal will be dismissal with prejudice.
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 (3) If it is the defendant on the other hand, who ignores an order of a court issued in relation to
these modes of discovery, the serious sanction is that the court can render a judgment by
default. This means to say, that even if the defendant has already filed an answer, but if the
defendant thereafter disobeys an order issued in relation to the modes of discovery, the court
can render judgment by default. The court will ignore the fact that an answer has already been
filed by the defendant.

Three (3) instances where a judgment by default could be rendered by the Court: Rule 9, Rule 12, and
Rule 29

So taken together with other rules, a judgment by default could be rendered in at least three
instances for purposes of civil actions. That is in Rule 9, when the defendant does not file an answer
within reglementary period; and in rule 12 Bill of Particulars. If the defendant does not submit a bill of
particulars, the court can issue an order by striking out his answer and after his answer has been
stricken out, he can declared in default, and a judgment by default could now be rendered by the court.
This is the third situation where, there may be a judgment by default even if there is an answers filed by
the defendant, that is in Rule 29. Even if the defendant has filed an answer on time, if he ignores or
disobeys an order of the court in relation to any of the modes of discovery the court can impose as a
sanction upon the defendant the rendition of a judgment by default. So it is also important for the
litigants to consider the consequences of a failure to obey an order issued in relation to these modes of
discovery.

COMMENT:

DISCOVERY is a device employed by a party to obtain information about relevant matters on the case
from the adverse party in the preparation for trial. This may be used by all the parties to the case.

Basic purposes of the Rules of Discovery

1. To serve as an additional device aside from pre-trial; to narrow and clarify the basic issues
between the parties; to ascertain the facts relative to the issues;

2. To enable a party to obtain knowledge of material facts within the knowledge of the adverse party
or of third parties through depositions;

3. To obtain knowledge of material facts or admission from the adverse party through written
interrogatories;

4. To obtain admission from the adverse party regarding the genuineness of relevant documents or
relevant matters of fact through request for admissions;

5. To inspect relevant documents or objects, and lands or other property in the possession and
control of the adverse party; and

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 6. To determine the physical or mental condition of a party when such is in controversy (Koh vs.
IAC, 144 SCRA 259)

IN SUM: To enable the parties to obtain the fullest possible knowledge of the issues and evidence long
before the trial to prevent such trial from being carried on in the dark.

Importance: To shorten the period of litigation and speed up adjudication. Thus mutual discovery
enables a party to discover the evidence of the adverse party and thus facilities and amicable settlement or
expedites the trial of the case. All parties are required to lay their cards on the table so that justice can be
rendered on the merits of the case (Justice Magdangal De Leon, 2011 Modes of Discovery Outline)

Discovery Still Applies Even If Motion for Bill of Particulars Denied

That matters on which discovery is desired are the same matters subject of a prior motion for bill
of particulars denied for lack of merit is beside the point. Indeed xxx a bill of particulars may elicit only
ultimate facts, not so called evidentiary facts. The later are without a doubt proper subject of discovery
(Republic vs. Sandiganbayan, GR No. 90478, Nov. 21, 1991)

Modes of Discovery under the Rules of Court

1. Depositions pending action (Rule 23);

2. Depositions before action or pending appeal (Rule 24);

3. Interrogatories to parties (Rule 25);

4. Admission by adverse party (Rule 26);

5. Production or inspection of documents, or things (Rule 27);

6. Physical and mental examination of persons (Rule 28).

Modes of Discovery is NOT MANDATORY but failure to avail carries sanctions in Rules 25 and
26.

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RULE 23

DEPOSITIONS PENDING ACTION

The first mode of discovery is the taking of a deposition. The next rule is also about the taking of
a deposition but the deposition is taken before the case is filed or during the pendency of an appeal of a
particular case. The first deposition is one that is taken during the pendency of a case.

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 Generally, as we said, since the availment of the modes of discovery by any of the litigants is not
compelled by the court, then if a litigant refuses to avail of a mode of discovery the court cannot impose
any sanction or penalty. In Rules 25 and 26 however, there are certain sanctions that can be imposed by
the court, if the modes of discovery known as request for admission or interrogatories to parties are not
availed of. You should read the last sections of Rule 25 and 26 and that will give you a clear idea of what
these sanctions are.

Purpose of modes of discovery

How will these modes of discovery help the court in shortening the trial or in declogging the
heavy docket of the court? The Supreme Court expects that if these modes of discovery are availed of,
there is a chance that the parties will no longer hold a trial over the factum probandum. They could be
compelled to enter into stipulation of facts, because these modes of discovery will enable one party to
get as much information as he wants concerning the stand of the other party. You see if you look at a
case from pragmatic point of view, the defendant knows only so much of the plaintiffs theory based on
what is contained in the complaint. And the plaintiff knows only so much of the defendants stand based
on the defendants answer. And under Rule 6 the plaintiffs complaint and defendants answer are
supposed to allege only ultimate facts, they are not supposed to contain evidentiary facts. The
knowledge of the plaintiff of defendants theory will be limited to what appears in the pleadings
submitted by the defendant.

With the use of these modes of discovery, the plaintiff can gather information from the
defendant himself or he can compel the defendant to produce evidence concerning the case itself. So in
using these modes, information can be gathered by the respective parties and this will presumably help
them analyze whether or not to go ahead with the case, or whether or not to present certain evidence
which at the time of the pleadings were not available to the adverse party.

You will also note that in deposition, if the deposition of a witness is taken, it does not
necessarily mean that this witness is testifying in court. The deposition of a witness usually does not
take the place of his testimony in court. So using our example of the Cebu resident, since the court
cannot compel this resident to come to Manila, the deposition of this Cebu resident can be taken in
Cebu itself. Will the taking of the deposition in Cebu of the Cebu resident mean that the Cebu resident
has become a witness in the case? That is not the necessary implication, because the taking of the
deposition of the Cebu resident in Cebu itself may be for the purposes only of discovery. It may be only
for the purpose of gathering information. But that deposition of the Cebu resident can also serve as his
testimony if the parties later on submit to the court his deposition as an evidence in lieu of his testimony
in court.

Therefore, there is nothing to preclude a plaintiff from taking the deposition of a person who
resides in Manila, that is, assuming that the case is pending in Manila. If the case is pending in Manila,
the Manila court can always compel the attendance of the Manila resident in court because the Manila
resident does not have a vitiatory right. If the plaintiff wants to take the deposition of a Manila resident,

226
the Manila resident cannot refuse to do so and argue that After all I am a resident of Manila, my
attendance can always be compelled as a witness. That is not a good argument to avoid the giving of a
deposition on the part of the Manila resident. The reason again is because, under the Rules the taking of
a deposition does not necessarily mean that the deponent will become a witness in Manila. The taking
of a deposition could be only for discovery purposes, only for the gathering of information.

Since the availment of the modes of discovery is not MANDATED by the Rules, can the taking of a
deposition of a person be done without the conformity or without the permission of the court?

Well the answer is YES. This is purely a matter between the plaintiff and the defendant as long
as the defendant has already filed an answer. If the defendant has already filed an answer, the parties
can agree between themselves as to when the deposition of a particular person could be taken and even
as to the place of the deposition. It is only when the defendant has not answered when the taking of a
deposition of a person needs permission from the court.

Since the permission of the court is NOT necessary in the taking of a deposition after the answer
has been filed. All that the plaintiff needs to do if he is the interested party is to write to the
defendant/defendants counsel and asking him to be present during the taking of the deposition. So it is
very clear that the taking of a deposition need not be held before a judge or before a court. The Rules
say that the taking of a deposition could be taken before a notary public, before any person who can
administer oath, that is upon the agreement of the parties.

COMMENT:

DEPOSITION is a written testimony of a witness given in the course of a judicial proceeding in advance
of the trial or hearing upon oral examination or in response to written interrogatories and where an
opportunity is given for cross examination.

Depositions are different from affidavits since the latter are ex parte statements without formal
interrogation and opportunity for cross-examination.

Affidavits are NOT admissible in evidence except in cases governed by the Rule on Summary
Procedure or in ordinary cases subject to cross-examination.

Depositions are intended as a means to compel disclosure of facts resting in the knowledge of a party or
other person, which are relevant in a suit/ proceeding.

Dual Function of Deposition

1. As a method of DISCOVERY provided that the subject of deposition is relevant and not
privileged.

2. As an ALTERNATIVE TO TESTIMONY If the purpose is only for use as testimony, the ground
therefor is NOT solely relevancy by there must be a showing of necessity or unavailability of the
deponent to appear and testify in court.

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Classification of Depositions

1. Depositions on ORAL EXAMINATION and Deposition upon WRITTEN interrogatories;

2. Depositions de bene esse Those taken for purposes of a pending action (Rule 23); and

3. Depositions in perpetuam rei memoriam Those taken to perpetuate evidence for purposes of an
anticipated action or further proceedings in a case on appeal (Rule 24).

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 1: Depositions pending action, when may be taken

By leave of court after jurisdiction has been obtained over any defendant or over
property which is the subject of the action, or without such leave after an answer has been
served, the testimony of any person, whether a party or not, may be taken, at the instance of
any party, by deposition upon oral examination or written interrogatories. The attendance of
witnesses may be compelled by the use of a subpoena as provided in Rule 21. Depositions shall
be taken only in accordance with these Rules. The deposition of a person confined in prison
may be taken only by leave of court on such terms as the court prescribes.

COMMENT:

A. WITH LEAVE OF COURT

1. After jurisdiction has been obtained over any defendant or over the property which is
the subject of the action but BEFORE an answer has been filed.

Ratio: Leave of court is necessary because the issue are not yet joined and the
disputed facts are not yet clear.

Note: This contemplates a situation where the complaint has already been filed and
the summons (personal or otherwise) have been served. That is why before using this
discovery tool, the rule says After jurisdiction has been obtained.

2. Deposition of a person confined in prison.

This is to be taken only with leave of court and upon such terms as the court may
prescribe.

B. WITHOUT LEAVE OF COURT

AFTER answer AND Deponent is NOT CONFINED in prison.

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 An answer ex abudanti cautela (out of abundant caution or to be on the safe side) does
not make an answer less of an answer. Thus, when an answer ex abundant cuatela is
filed, deposition maybe without leave of court. (Rosette vs. Lim, GR No. 136051, June 8,
2006)

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 2: Scope of Examination

Unless otherwise ordered by the court as provided by Section 16 or 18 of this Rule, the
deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any books, documents, or other tangible things
and the identity and location of persons having knowledge of relevant facts.

COMMENT:

Scope of Examination in Depositions

1. Matter which is relevant to the subject of the pending action;

2. Not privileged; and

3. Not restricted by a protective order (Sections 16 and 18)

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 3: Examinations and cross-examinations

Examination and cross-examination of deponents may proceed as permitted at the trial under
Sections 3 to 18 of Rule 132.

COMMENT:

The deponent may be examined or cross-examined following the procedures for witnesses in a
trial. He has the same rights as a witness and may be impeached like a court witness because Sections 3 to
18 of the Rule 132 apply to a deponent.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 4: Use of depositions

At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the rules of evidence, may be used against any party who was

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present or represented at the taking of the deposition or who had due notice thereof, in accordance
with any one of the following provisions:

(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the
testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition was an officer,
director, or managing agent of a public or private corporation, partnership, or association which
is a party may be used by an adverse party for any purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose
of the court finds:

(1) That the witness is dead: or

(2) That the witness resides at a distance more than one hundred (100) kilometers from the
place of the trial or hearing, or is out of the Philippines, unless it appears that his absence
was procured by the party offering the deposition; or

(3) That the witness is unable to attend or testify because of age, sickness, infirmity or
imprisonment; or

(4) That the party offering the deposition has been unable to procure the attendance of the
witness by subpoena; or

(5) Upon application and notice, that such exceptional circumstances exist as to make it
desirable, in the interest of justice and with due regard to the importance of presenting the
testimony of witnesses orally in open court, to allow the deposition to be used; and

(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him
to introduce all of it which is relevant to the part introduced, and any party may introduce any
other parts.

Since the premise of this taking of a deposition is for gathering of information, could we later on
consider the deposition as the testimony of the deponent in court? The answer is YES under certain
exceptional cases. When the deponent invokes his vitiatory right, then his deposition can be considered
as his testimony in court or if the deponent has dies or is incompetent to go to court physically unable to
go to court his deposition can be taken as his testimony in court. But in all instances, the deposition of
any person can be used to impeach this person if he later on goes to court as a witness.

Using the example we had awhile ago regarding Manila resident. A Manila resident can be
compelled by the Manila court to be a witness before the Manila court to be a witness before the
Manila court because the Manila resident cannot invoke his vitiatory right. Before the Manila resident
could give his testimony in court as a witness, anyone of the litigants can get the deposition of the
Manila resident. So that later on when the Manila resident appears in court as a witness, his deposition
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can be used to impeach him. If you will recall the Rules on Evidence, one of the modes by which a
witness can be impeached by prior inconsistent statements. So if his testimony will be inconsistent with
the depositions that he has previously given, the depositions can be used to impeach this witness. So of
course in impeaching this Manila witness, the counsel must observe also the rule on laying the
predicate, which I suppose you are familiar with.

Manner of taking depositions

How do we take the deposition of a witness, whether he resides in Cebu or in Manila? There are
two ways allowed by the Rules for the taking of a deposition, that is deposition upon oral examination,
and deposition upon written interrogatories. The procedure is practically the same, except that in
deposition in oral examination the deponent is personally present, the lawyer for the plaintiff also is
personally present, and the lawyer for the defendant is also present. And the lawyers will conduct
direct examination, cross-examination, re-direct examination and re-cross examination. Thats verbal
before the presiding officer of that proceeding for the taking of a deposition.

In a deposition upon written interrogatories, the lawyers/litigants do not have to be present

during the proceeding. They have to prepare a questionnaire that is in writing. Questionnaire on direct
examination, questionnaire on cross-examination, questionnaire on re-direct examination and
questionnaire on re-cross examination. And then these papers will be sent to the presiding officer of the
proceedings. The presiding officer will simply read the questions and then he will jot down the answers
given by the deponent. So there is really not much difference except as to the form of questions. In
deposition upon oral examination, questions are propounded orally while in deposition upon written
interrogatories the question are already reduced into writings and it is up to the presiding officer to read
these questions and to get the answer from the deponent.

You will also notice that since this is the procedure by which a deposition could be taken, the
presiding officer will have no authority at all to rule on objections. Supposing the presiding officer
himself a judge, cannot the presiding officer rule on the objections because since he is a judge he is
aware of the Rules governing presentation of witness in court? Even if the presiding officer is a judge, he
cannot rule on the objections. The reason is because the presiding officer is not aware of what the
issues are. The case is NOT pending before that court, and therefor the court does not know what the
fight is all about.

COMMENT:

Where the witness is available to testify and the situation is NOT one of those excepted under
Section 4, his deposition is inadmissible in evidence and he should be made to testify.

DEPONENT

1. Any PERSON (USED) By any party for contradicting or impeaching the testimony of deponent
as witness.

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 2. A party or any one who at the time of the deposition was an OFFICER, DIRECTOR, or
MANAGING AGENT of a public or private corp., partnership, or association which is a party
(USED) By an adverse party for any purpose.

3. WITNESS, whether or not a party (USED) By any party for any purpose if the court finds the 5
instances occurring.

Five instances where DEPOSITION of any witness may be Used for Any purpose.

1. The witness is DEAD;

2. The witness resides more than 100 kilometers from the place of trial or hearing, or is out of the
Philippines. UNLESS it appears that his absence was procured by the party offering the
deposition.

3. The witness is UNABLE to testify because of age, sickness, infirmity or imprisonment.

4. The party offering the deposition has been unable to procure the attendance of the witness by
SUBPOENA; or

5. Upon application and NOTICE, that such exceptional circumstances exist as to make it desirable
in the interest of justice.

Section 4 of Rule 23 on the use of deposition is clearly indicative of the use of deposition as an alternative
mode of testimony in view of distance, death, or disability of the deponent.

Note: Certiorari will not lie against an order admitting or rejecting a deposition in evidence. The remedy
is an appeal from the final judgment assigning as error the admission or rejection of a deposition.

Ratio: Because it is merely an error of law not grave abuse of discretion.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 5: Effect of substitution of parties

Substitution of parties does not affect the right to use depositions previously taken; and, when
an action has been dismissed and another action involving the same subject is afterward brought
between the same parties or their representatives or successors in interest, all depositions lawfully
taken and duly filed in the former action may be used in the latter as if originally taken therefor.

COMMENT:

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 6: Objections to admissibility

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 Subject to the provisions of Section 29 of this Rule, objections may be made at the trial or
hearing to receiving in evidence any deposition or part thereof for any reason which would require the
exclusion of the evidence if the witness were then present and testifying.

COMMENT:

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 7: Effect of taking depositions

A party shall not be deemed to make a person his own witness for any purpose by taking his
deposition.

COMMENT:

A Party shall not be deemed to make a person his own witness for any purpose by taking his deposition
because depositions are taken for discovery and NOT FOR USE as evidence.

Exception: If a party offers the deposition in evidence, then he is deemed to have made the deponent his
witness (Sec. 8).

Exception to the exceptions: UNLESS the deposition is that of an opposing party OR the deposition is
used to impeach or contradict the deponent.

Rule 23 Section 8: Effect of using depositions

The introduction in evidence of the deposition or any part thereof for any purpose other than
that of contradicting or impeaching the deponent makes the deponent the witness of the party
introducing the deposition, but this shall not apply to the use by an adverse party of a deposition as
described in paragraph (b) of Section 4 of this rule.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 9: Rebutting deposition

At the trial or hearing, any party may rebut any relevant evidence contained in a deposition
whether introduced by him or by any other party.

COMMENT:

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 10: Persons before whom depositions may be taken within the Philippines

Within the Philippines, deposition may be taken before any judge, notary public, or the person
referred to in Section 14 hereof.

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Rule 23 Section 11: Persons before whom depositions may be taken in foreign countries

In a foreign state or country, depositions may be taken (a) on notice before a secretary of
embassy or legation, consul general, consul, vice consul, or consular agent of the Republic of the
Philippines; (b) before such person or officer as may be appointed by commission or under letters
rogatory; or (c) the person referred to in Section 14 hereof.

COMMENT:

Person before whom depositions may be taken

1. Judge;

2. Notary public; or

3. Any person authorized to administer oaths, as stipulated by the parties in writing.

Outside the Philippines

1. One notice before a secretary of embassy or legation, consul general, consul, vice-consul, or
consular agent of the Phil.;

2. Before such person or officer as may be appointed by commission or under letters rogatory;

3. Any person authorized to administer oaths, as stipulated by the parties in writing.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 12: Commission or letters rugatory

A commission or letters rogatory shall be issued only when necessary or convenient, on

application and notice, and on such terms and with such direction as are just and appropriate. Officers
may be designated in notices or commissions either by name or descriptive title and letters rogatory
may be addressed to the appropriate judicial authority in the foreign country.

The terms commission and letters rogatory are found in the Rule on deposition. And as I
suggested, you should read the form contained in the Rules of Court concerning letters rogatory and a
commission. In the case of letters rogatory as the Rules of court show, this is a request issued by a
local court addressed to a foreign court, requesting the foreign court to take the deposition of a person
who is within the territorial jurisdiction of that foreign court. So a letters of rogatory is not an order
issued by a local court. It is a request issued by a local court like the Regional Trial Court requesting
another court in Japan for instance, to take the deposition of a witness who is within the territorial
jurisdiction of Japan. It could not be a mandate, it could not be an order because it is obvious that it is an

234
act of discourtesy if a local court issues an order directing a foreign court to follow such order. So at
most it is a request issued by a domestic court addressed to a foreign court.

Instead of using letters of rogatory the local court can write to the consul of the Philippines to
Japan, and ask the consulates of the Philippines in Japan to take the deposition of a person who is
residing in Japan. Thats another mode of taking the deposition of a person, who is outside the territorial
jurisdiction of the Philippines.

COMMENT:

COMMISSION is an instrument issued by a court of justice, or other competent tribunal, to authorize a

person to take depositions or do any other act by authority of such court or tribunal

LETTERS ROGATORY is an instrument sent in the name and by the authority of a judge or court to
another, requesting the latter to cause to be examined upon interrogatories filed in a case pending before
the former, a witness who is within the jurisdiction of the judge or court to whom such letters are
addressed (Feria, 2001, p518)

COMMISION

1. Issued to a non-judicial foreign officer who will directly take the testimony;

2. Applicable rules of procedure are those of the requesting court;

3. Resorted to if permission of the foreign country is given;

4. Leave of court is not necessary.

LETTERS ROGATORY

1. Issued to the appropriate judicial officer of the foreign country who will direct somebody in said
foreign country to take down testimony;

2. Applicable rules of procedure are those of the foreign court requested act;

3. Resorted to if the execution of the commission is refused in the foreign country;

4. Leave of court is necessary.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 13: Disqualification by interest

No deposition shall be taken before a person who is a relative within the sixth degree of
consanguinity or affinity, or employee or counsel of any of the parties; or who is a relative within the
same degree, or employee of such counsel; or who is financially interested in the action.

COMMENT:
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NO deposition shall be taken before a person who is:

1. A relative within the 6th degree of affinity or consanguinity;

2. An employee or counsel of any of the parties;

3. A relative within the same degree, or employee of such counsel; and

4. Financially interested in the action.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 14: Stipulations regarding taking of depositions

If the parties so stipulate in writing, depositions may be taken before any person authorized to
administer oaths, at any time or place, in accordance with these Rules, and when so taken may be used
like other depositions.

COMMENT:

Within the Philippines, a deposition may be taken, before any person authorized to administer
oaths if the parties so stipulate in writing.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 15: Deposition upon oral examination; notice; time and place

A party desiring to take the deposition of any person upon oral examination shall give
reasonable notice in writing to every other party to the action. The notice shall state the time and place
for taking the deposition and the same and address of each person to be examined, if known, and if the
name is not known, a general description sufficient to identify him of the particular class or group to
which he belongs. On motion of any party upon whom the notice is served, the court may for cause
shown enlarge or shorten the time.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 16: Orders for the protection of parties and deponents

After notice is served for taking a deposition by oral examination, upon motion seasonably
made by any party or by the person to be examined and for good cause shown, the court in which the
action is pending may make an order that the deposition shall not be taken, or that it may be taken only
at some designated place other than that stated in the notice, or that it may be taken only on written
interrogatories, or that certain matters shall not be inquired into, or that the scope of the examination
shall be held with no one present except the parties to the action and their officers or counsel, or that
after being sealed the deposition shall be opened only by order of the court, or that secret processes,
developments, or research need not be disclosed, or that the parties shall simultaneously file specified

236
documents or information enclosed in sealed envelopes to be opened as directed by the court; or the
court may make any other order which justice requires to protect the party or witness from annoyance,
embarrassment, or oppression.

Do the rules also protect a witness from being harassed or embarrassed by the taking of his
deposition? Well the answer is YES you should read Sections 16 and 18 when it comes to the protection
that is given by the Rules to a deponent who is giving his deposition. Before the taking of the deposition,
the court of origin can upon motion, issue an order directing that the deposition should not take place at
all, in order to avoid a party from capriciously or whimsically availing of the modes of discovery.

Before taking of a deposition also, the trial court, that is the court of origin can upon motion
issue an order directing that the deposition be taken only in the form of written interrogatories. So
there will be no personal appearances by the counsel of the respective parties.

While the deposition is going on, the witness also can ask the court to issue an order to
terminate the taking of the deposition, or to terminate the proceeding in its entirety. If the witness or
anyone of the parties can convince the court that the taking of a deposition is designed primary to
annoy or embarrass the witness. So there are certain protective measures given in the Rules to protect
the deponent and in order to protect also the adverse party from the consequences of the taking of a
deposition.

Let us say that the taking of a deposition is completed. The presiding officer is required by law to
send the transcript of the proceedings to the court of origin under seal. The sending of the presiding
officer of the transcript does not mean to say that the deponent is now considered as a witness by the
court. He is not yet a witness in court, it is just a matter of the presiding officer sending the transcript of
the proceedings to the court.

Will this transcript sent to the trial court be considered as evidence?

It will not be considered as evidence. In order that the transcript will be considered as evidence
it should be submitted, it should be offered as documentary evidence by anyone of the interested
parties. And it is during the offer of the transcript as evidence when the trial court can rule on the
objections that were noted by the presiding officer. This time the trial court will have authority to rule in
the objections because the trial court is the one that is actually trying the case. Is the trial court, which is
aware whether the questions propounded and the answers given are objectionable.

Perpetuation of testimony

Well under the provisions of the Rules of Court can the deposition of a person be taken even
before a case is filed? Well under the Rules, there is such a thing as a deposition before action that is
before a case is filed. But why will a party be interested in taking a deposition of a person before the
actual commencement of the action? Well this is known now as perpetuation of testimony. This used to
be a part of the Rules on Evidence. It has been transformed into civil actions as a classification of a

237
deposition deposition before the case is filed. Some decisions of American court call this as deposition
in perpetuam ro memoriam, that is, deposition for the perpetuation of testimony.

Petition for purpose of perpetuating testimony

Since no case has yet been filed, it is pretty obvious that in order to get a testimony perpetuated
by the Court there must be a corresponding petition filed in court. So in deposition before action there
must be a petition to be filed for the purpose of perpetuating testimony. Where do we file this petition
for the perpetuation of testimony? Well the Rules unfortunately, do not tell us whether the petition for
perpetuation of testimony should be filed before the Regional Trial Court or an inferior court or before
the Court of Appeals or before the Supreme Court. In the absence of any standard/any requirement or
the identification of a court which has authority to entertain a petition for purpose of perpetuating
testimony, I suppose we can make use of the principles of BP 129. So we have to ascertain the nature of
a petition for perpetuation of a testimony to determine the court that has jurisdiction.

If there is a petition for the perpetuation of testimony, can we consider that as a real action?
Obviously NOT? It does not involve title to or possession of real property. Could we consider it as an
action that is not capable of pecuniary estimation? It seems that it will fall under that classification. So a
petition for the perpetuation of testimony should be cognizable exclusively by a Regional Trial Court
because it is a petition which is not capable of pecuniary estimation. So even if the testimony to be
perpetuated will be used in a case to be filed in an inferior court, the petition itself for the perpetuation
of testimony should be commenced before a Regional Trial Court. Will there be a petitioner or plaintiff?
Of course there should be a petitioner or plaintiff. Should there be a defendant or respondent? The
Rules do not require that a respondent be impleaded. All that the rules require is that we identify the
parties who are expected to be adversaries if a case is going to be filed.

Upon the filing of a petition, this is in the form of an independent action, will the Regional Trial
Court issue a summons? Well the court will not issue a summons because in the first place, there is no
respondent who is formally impleaded. What the court will issue is simply a notice that will inform
potential adversaries of the request for the perpetuation of testimony. So this is one petition, one action
where no summons will be issued by the Regional Trial Court.

Very clearly, if we are going to follow the nature of a petition to perpetuate testimony, the court
cannot render a judgment awarding a sum of money for instance, or for the delivery of property,
because, the only purpose in filing the petition is to perpetuate the testimony of the witness.

If a case is already decided by the trial court and later on an appeal is brought to the Court of
Appeals or the Supreme Court, the trial court still exercise jurisdiction to allow the taking of a deposition
pending appeal. So in appealed cases it is not the appellate court that has authority to order the taking
of a deposition pending appeal, it is still the court of origin that means authority for the taking of a
deposition pending appeal.

xxx ________________________________________ xxx _________________________________xxx

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Rule 23 Section 17: Record of examination; oath; objections

The officer before whom the deposition is to be taken shall put the witness on oath and shall
personally, or by some one acting under his direction and in his presence, record the testimony if the
witness. The testimony shall be taken stenographically unless the parties agree otherwise. All objections
made at the time of the examination to the qualifications of the officer taking the deposition, or to the
manner of taking it, or to the evidence presented, or to the conduct of any party, and any other
objection to the proceedings shall be noted by the officer upon the depositions. Evidence objected to
shall be taken subject to the objections. In lieu of participating in the oral examination, parties served
with notice of taking a deposition may transmit written interrogatories to the officers, who shall
propound them to the witness and record the answers verbatim.

Since the presiding officer cannot rule on objections, can anyone of the lawyers stand up during
the proceeding and say objection to the questions? Well, that should be done, if a question
propounded is objectionable, the proper objection should be made but even if there is an objection, the
presiding officer cannot say objection sustained or objection overruled. All that the presiding officer
will say is objection noted but the witness should still answer the question. This is the reason why we
cannot consider deposition as one in lieu or in place of testimony in court. If a question is asked and an
objection is raised by the adverse party, the court has the duty to rule on the objection. The court
should tell the parties whether or not the court is going to sustain or overrule the objection. That is not
possible in the taking of a deposition.

Supposing that an objection is made but the presiding officer just tells the witness objection
noted but the deponent should given an answer, and the deponent tells the presiding officer I do not
want to answer. Can the presiding officer tell the witness You give an answer or else you will be cited
in contempt? That is not also possible because the presiding officer in the taking of a deposition is not
the judge trying the case. He is just presiding in the taking of a deposition.

If the witness insist in not answering the question, what is the remedy of the interested party?
Well the interested party should go back to the court of origin. If the court of origin is the Regional trial
Court, he should go back to the Regional Trial Court of Manila and ask for the issuance of an order
directing the witness to give an answer to a particular question. So it could also be a tedious process
every time the witness refuses to give an answer you have to go to the court of origin to get an order
directing the witness to give an answer.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 18: Motion to terminate or limit examination

At any time during the taking of the deposition, on motion or petition of any party or of the
deponent and upon a showing that the examination is being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is
pending or the Regional Trial Court of the place where the deposition is being taken may order the

239
officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope
and manner of the taking of the deposition, as provided in Section 16 of this Rule. If the order made
terminates the examination, it shall be resumed thereafter only upon the order of the court in which the
action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be
suspended for the time necessary to make a notice for an order. In granting or refusing such order, the
court may impose upon either party or upon the witness the requirement to pay such cost or expenses
as the court may deem reasonable.

COMMENT:

May be filed:

1. Any time during the taking of the deposition;

2. On motion or petition of any party or of the deponent; and

3. Upon showing that the examination is conducted in:

a. Bad faith;

b. In such manner as unreasonably to annoy, embarrass, or oppress the deponent or party.

When the constitutional privilege against self incrimination is invoked by the deponent or his
counsel, the trial court may stop the examination. (Isabel Sugar Co. vs. Macadaeg, GR No. L-
5924, Oct. 28, 1953)

PROTECTION ORDER (Section 16)

1. Provides protection to the party or witness BEFORE the taking of deposition;

2. Motion is filed with the court in which the action is pending.

MOTION TO TERMINATE OR LIMIT EXAMINATION (Section 18)

1. Provides such protection DURING the taking of deposition;

2. Motion or petition is filed in the court in which the action is pending OR the RTC of the place
where the deposition is being taken.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 19: Submission to witness; changes; signing

When the testimony is fully transcribed, the deposition shall be submitted to the witness for
examination and shall be read to or by him, unless such examination and reading are waived by the
witness and by the parties. Any changes in form or substance which the witness desires to make shall be
entered upon the deposition by the officer with a statement of the reasons given by the witness for
making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive
240
the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by
the witness, the officer shall sign it and state on the record the fact of the waiver or the illness or
absence of the witness or the fact of the refusal to sign together with the reason given therefor, if any,
and the deposition may then be used as fully as though signed, unless on a motion to suppress under
Section 29(f) of this Rule, the court holds that the reasons given for the refusal to sign require rejection
of the deposition in whole or in part.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 20: Certification and filing by officer

The officer shall certify on the deposition that the witness was duly sworn to by him and that
the deposition is a true record of the testimony given by the witness. He shall then securely seal the
deposition in an envelope indorsed with the title of the action and marked Deposition of (here insert
the name of witness) and shall promptly file it with the court in which the action is pending or send it
by registered mail to the clerk thereof for filing.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 21: Notice of filing

The officer taking the deposition shall give prompt notice of its filing to all the parties.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 22: Furnishing copies

Upon payment of reasonable charges therefor, the officer shall furnish a copy of the deposition
to any party or to the deponent.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 23: Failure to attend of party giving notice

If the party giving the notice of the taking of a deposition fails to attend and proceed therewith
and another attends in person or by counsel pursuant to the notice, the court may order the party giving
the notice to pay such other party the amount of the reasonable expenses incurred by him and his
counsel in so attending, including reasonable attorneys fees.

Rule 23 Section 24: Failure of party giving notice to serve subpoena

If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena
upon him and the witness because of such failure does not attend, and if another party attends in
person or by counsel because he expects the deposition of that witness to be taken, the court may order
241
the party giving the notice to pay to such other party the amount of the reasonable expenses incurred
by him and his counsel in so attending, including reasonable attorneys fees.

COMMENT:

The court may order the party giving the notice to pay such other party the amount of reasonable
expenses incurred by him and his counsel in so attending, including reasonable attorneys fees.

xxx ________________________________________ xxx _________________________________xxx

Rule 23 Section 25: Deposition upon written interrogatories; service of notice and of interrogatories

A party desiring to take the deposition of any person upon written interrogatories shall serve
them upon every other party with a notice stating the name and address of the person who is to answer
them and the name or descriptive title and address of the officer before who the deposition is to be
taken. Within ten (10) days thereafter, a party so served may serve cross-interrogatories upon the party
proposing to take the deposition. Within five (5) days thereafter, the latter may serve re-direct
interrogatories upon a party who has served cross-interrogatories. Within three (3) days after being
served with re-direct interrogatories, a party may serve recross-interrogatories upon the party
proposing to take the deposition.

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Rule 23 Section 26: Officers to take response and prepare record

A copy of the notice and copies of all interrogatories served shall be delivered by the party
taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner
provided by Sections 17, 19 and 20 of this Rule, to take the testimony of the witness in response to the
interrogatories and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the
notice and the interrogatories received by him.

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Rule 23 Section 27: Notice of filing and furnishing copies.

When a deposition upon interrogatories is filed, the officer taking it shall promptly give notice
thereof to all the parties, and may furnish copies to them or to the deponent upon payment of
reasonable charges therefor.

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Rule 23 Section 28: Orders for the protection of parties and deponents

After the service of the interrogatories and prior to the taking of the testimony of the deponent,
the court in which the action is pending, on motion promptly made by a party or a deponent, and for
good cause shown, may make any order specified in Sections 15, 16 and 18 of this Rule which is
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appropriate and just or an order that the deposition shall not be taken before the officer designated in
the notice or that it shall not be taken except upon oral examination.

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Rule 23 Section 29: Effect of errors and irregularities in deposition

(a) As to notice All errors and irregularities in the notice for taking a deposition are waived
unless written objection is promptly served upon the party giving the notice.

(b) As to disqualification of officer Objection to taking a deposition because of disqualification

of the officer before whom it is to be taken is waived unless made before the taking of the
deposition begins or as soon thereafter as the disqualification becomes known or could be
discovered with reasonable diligence.

(c) As to competency or relevancy of evidence Objections to the competency of a witness or

the competency, relevancy, or materiality of testimony are not waived by failure to make
them before or during the taking of the deposition, unless the ground of the objection is one
which might have been obviated or removed if presented at that time.

(d) As to oral examination and other particulars Errors and irregularities occurring at the oral
examination in the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of the parties and errors of any kind
which might be obviated, removed, or cured if promptly prosecuted, are waived unless
reasonable objection thereto is made at the taking of the deposition.

(e) As to the form of written interrogatories Objections to the form of written interrogatories
submitted under Sections 25 and 26 of this Rule are waived unless served in writing upon
the party propounding them within the time allowed for serving succeeding cross or other
interrogatories and within three (3) days after service of the last interrogatories authorized.

(f) As to the manner of preparation Errors and irregularities in the manner in which the
testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed,
transmitted, filed, or otherwise dealt with by the officer under Sections 17, 19, 20 and26 of
this Rules are waived unless a motion to suppress the deposition or some part thereof is
made with reasonable promptness after such is, or with due diligence might have been,
ascertained.

COMMENT:

1. As to notice waived UNLESS written objection is promptly served upon the party giving the
notice;

2. As to disqualification of officer waived UNLESS made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known.
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 3. As to competency and relevancy of evidence NOT waived by failure to make them before or
during the taking of the deposition UNLESS the ground of the objection is one which might have
been obviated or removed if presented at that time.

4. As to oral examination waived UNLESS reasonable objections thereto is made at the taking of
the deposition.

5. As to form of written interrogatories waived UNLESS served in writing upon the party
propounding them within the time allowed.

6. As to manner of preparation waived UNLESS a motion to suppress the deposition or some

part thereof is made with reasonable promptness after such defect is, or with due diligence might
have been ascertained.

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RULE 24

DEPOSITIONS BEFORE ACTION OR PENDING APPEAL

COMMENT:

A deposition before action and a deposition pending appeal are referred to as perpetuation of
testimony or perpetuam rei memoriam because their objective is to perpetuate testimony of a
witness for future use.

Depositions under this Rule are also taken conditionally, to be used at the trial only in case the
deponent is NOT available.

Depositions under this Rule do not prove the existence of any right and the testimony perpetuated
is NOT IN ITSELF conclusive proof, either of the existence of any right or even of the facts to
which they relate, as it can be controverted at the trial in the same manner as through no
perpetuation of testimony was ever had.

However, in the absence of any objection to its taking, and even of the deponent did NOT testify
at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the
deposition.

Rule 24 Section 1: Depositions before action; petition

A person who desires to perpetuate his own testimony or that of another person regarding any
matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of
the place of the residence of any expected adverse party.

COMMENT:

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 A VERIFIED petition may be filed by any person:

1. Who wants to perpetuate his own testimony; or

2. Who wants to perpetuate the testimony of another person.

Note: This may be availed of ONLY in civil cases and NOT in criminal cases.

For example, the petitioner has a cause of action which has not yet accrued. In such a case, inasmuch as
he cannot bring the action until the cause of action accrues, he may perpetuate his testimony or that of
another person (Feria,2001, p 534)

xxx ________________________________________ xxx _________________________________xxx

Rule 24 Section 2: Contents of petition

The petition shall be entitled in the name of the petitioner and shall show:

(a) That the petitioner expects to be a party to an action in a court of the Philippines but is
presently unable to bring it or cause it to be brought;

(b) The subject matter of the expected action and his interest therein;

(c) The facts which he desires to establish by the proposed testimony and his reasons for desiring to
perpetuate it;

(d) The names or a description of the persons he expects will be adverse parties and their addresses
so far as known;

(e) The names and address of the persons to be examined and the substance of the testimony
which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take
the depositions of the persons to be examined named in the petition for the purpose of
perpetuating their testimony.

COMMENT:

The petition shall be verified and shall be filed in the place of residence of any expected adverse
party. It shall contain the matters set forth in Sec. 2 of Rule 24.

xxx ________________________________________ xxx _________________________________xxx

Rule 24 Section 3: Notice and Service

The petitioner shall serve a notice upon each person named in the petition as an expected
adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at
a time and place named therein, for the order described in the petition. At least twenty (20) days before

245
the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective
deponents in the manner provided for service of summons.

COMMENT:

1. The petitioner shall serve a notice upon each person named in the petition as an expected adverse
party, together with a copy of the petition, stating that the petitioner will apply to the court at the
time and place stated therein; and

2. At least 20 days before the date of hearing, the court shall cause notice thereof to be served on the
parties and prospective deponents in the manner provided for in the service of summons.

xxx ________________________________________ xxx _________________________________xxx

Rule 24 Section 4: Order and Examination

If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designating or describing the persons whose deposition may be taken and
specifying the subject matter of the examination and whether the depositions shall be taken upon oral
examination or written interrogatories. The depositions may then be taken in accordance with Rule 23
before the hearing.

xxx ________________________________________ xxx _________________________________xxx

Rule 24 Section 5: Reference to court

For the purpose of applying Rule 23 to depositions for perpetuating testimony, each reference
therein to the court in which the action is pending shall be deemed to refer to the court in which the
petition for such deposition was filed.

xxx ________________________________________ xxx _________________________________xxx

Rule 24 Section 6: Use of deposition

If a deposition to perpetuate testimony is taken under this Rule, or if, although not so taken, it
would be admissible in evidence, it may be used in any action involving the same subject matter
subsequently brought in accordance with the provisions of Section 4 and 5 of Rule 23.

COMMENT:

If deposition is taken under this RULE, it may be used in any action involving the SAME
SUBJECT MATTER subsequently brought.

xxx ________________________________________ xxx _________________________________xxx

Rule 24 Section 7: Depositions pending appeal

246
 If an appeal has been taken from judgment of a court, including the Court of Appeals in proper
cases, or before the taking of an appeal if the time therefor has not expired, the court in which the
judgment was rendered may allow the taking of depositions of witnesses to perpetuate their testimony
for use in the event of further proceedings in the said court. In such case the party who desires to
perpetuate the testimony may make a motion in the said court for leave the depositions, upon the same
notice and service thereof as of the action was pending therein. The motion shall state

(a) The names and addresses of the persons to be examined and the substance of the testimony
which he expects to elicit from each other; and

(b) The reason for perpetuating their testimony.

If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it
may make an order allowing the depositions to be taken, and thereupon the depositions may be taken
and used in the same manner and under the same conditions as are prescribed in these Rules for
depositions taken in pending actions.

COMMENT:

Depositions are taken pending appeal with the view of being used in the event of further
proceedings in the COURT OF ORIGIN or APPELLATE COURT.

For example, a party may perpetuate the testimony of a witness which was objected by the
adverse party and ruled out by the court. If the appellate court should reverse the decision/order of the
lower court, it could admit the deposition as ADDITIONAL EVIDENCE or remand the case back to the
lower court for such ADMISSION in accordance with Sections 4 and 5 of Rule 23 (Feria 2001, p. 537).

xxx ________________________________________ xxx _________________________________xxx

RULE 25

INTERROGATORIES TO PARTIES

The parties are not compelled by the Rules to make use of the modes of discovery; exceptions RULE
25 and 26

Although these modes of discovery are available even without permission of the court, after a
responsive pleading has been filed, Rule 25 and 26 demonstrate that the Supreme Court can compel
directly, the availment of these modes of discovery. In the previous discussion we said that although the
Rules contain several provisions on modes of discovery, the use and availment of these modes is purely
discretionary on the part of the litigants. Although Rule 18 states that in the pre-trial brief, the litigants
should tell the court whether or not they are going to avail of the modes of discovery, there is really no
compulsion on their part. There is no compulsion by law for the parties to make use of the modes of
discovery.

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 Rule 25 and 26 appear to be an exception to this General Rule. Rule 25 and 26 could serve as an
exception to the general rule that availment of the modes of discovery is not compulsory because of the
last sections in Rule 25 and in Rule 26. So if you will read Section 6 of Rule 25, there is a sanction
imposed by the Rules if a party does not utilize Rule 25, that is interrogatories to parties.

COMMENT:

Purpose of Written Interrogatories: To elicit material and relevant facts from any adverse party
(answers may also be used as admissions of the adverse party).

Written interrogatories and the answers thereto must both be FILED and SERVED. Hence, the
answers may constitute as JUDICIAL ADMISSIONS (Sec. 4 Rule 129)

DISTINCTIONS:

INTERROGATORIES

1. A PARTY may properly seek disclosure of matters of proof which may later be made a part of
the records as evidence;

2. Seeks to disclose all material and relevant facts from a party;

3. Not directed to a particular pleading.

BILL OF PARTICULAR

1. A party may properly seek disclosure only of matters which define the issues and become a part
of the pleadings;

2. Designed to clarify ambiguities in a pleading or to state with sufficient definiteness allegations in

a pleading;

3. Directed to a pleading.

DISTINCTIONS:

DEPOSITIONS UPON WRITTEN INTERROGATORIES TO PARTIES (Rule 23)

1. Party or ordinary witness; (as to deponent)

2. With intervention of the officer authorized by the court to take deposition. NOT served upon the
adverse party, directly, instead, delivered to the officer before whom the deposition is to be taken.
(as to procedure)

3. Direct, cross, re-direct, re-cross (as to scope)

4. No fixed time (interrogatories)

INTERROGATORIES TO PARTIES (Rule 25)

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 1. Party only; (as to deponent)

2. NO intervention. Written interrogatories are directed to the party himself; (as to procedure)

3. Only one set of interrogatories; (as to scope)

4. Fifteen (15) days to answer UNLESS extended or reduced by the court.

xxx ________________________________________ xxx _________________________________xxx

Rule 25 Section 1: Interrogatories to parties; service thereof;

Under the same conditions specified in Section 1 of Rule 23, any party desiring to elicit material
and relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to
be answered by the party served or, if the party served is a public or private corporation or a partnership
or association, by any officer thereof competent to testify in its behalf.

COMMENT:

A party may serve written interrogatories:

1. Without Leave of Court after answer has been served, for the first set of interrogatories.

2. With Leave of court Before answer has been served.

Reason: At that time, the issues are not yet joined and the disputed facts are not yet clear.

xxx ________________________________________ xxx _________________________________xxx

Rule 25 Section 2: Answer to interrogatories

The interrogatories shall be answered fully in writing and shall be signed and sworn to by the
person making them. The party upon whom the interrogatories have been served shall file and serve a
copy of the answers on the party submitting the interrogatories within fifteen (15) days after service
thereof, unless the court, on motion and for good cause shown, extends or shortens the time.

COMMENT:

The interrogatories shall be answered fully in WRITING and shall be SIGNED and SWORN to
by the person making them.

Answer cannot be made by an agent or attorney; answers not made by the parties are nullities
(Herrera vol 2 p.44)

A JUDGMENT BY DEFAULT may be rendered against a party who fails to answer written
interrogatories.

xxx ________________________________________ xxx _________________________________xxx

249
Rule 25 Section 3: Objections to interrogatories

Objections to any interrogatories may be presented to the court within ten (10) days after
service thereof, with notice as in case of a motion; and answers shall be deferred until the objections are
resolved, which shall be at as early a time as is practicable.

COMMENT:

Objections to any interrogatories may be presented to the court within ten (10) days after service thereof,
with notice as in the case of motion.

Answers shall be deferred until objections are resolved, which shall be at the earliest possible time.

xxx ________________________________________ xxx _________________________________xxx

Rule 25 Section 4: Number of interrogatories

No party may, without leave of court, serve more than one set of interrogatories to be
answered by the same party.

COMMENT:

Only one set of interrogatories by the same party is allowed. Leave of court is necessary for succeeding
sets of interrogatories.

xxx ________________________________________ xxx _________________________________xxx

Rule 25 Section 5: Scope and use of interrogatories

Interrogatories may relate to any matters that can be inquired into under Section 2 of Rule 23,
and the answers may be used for the same purposes provided in Section 4 of the same Rule.

COMMENT:

The SCOPE of interrogatories shall be the matters mentioned in Sec. 2 Rule 23. The answers may be
USED for the same purpose provided in Sec. 4 of the same Rule.

Since answers to interrogatories may be used for the same purposes as depositions, they may also
be the basis of a summary judgment under Rule 35.

xxx ________________________________________ xxx _________________________________xxx

Rule 25 Section 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.

250
 In Rule 26, if a party does not avail of the mode of discovery in Rule 25, the sanction is he is
precluded from compelling the adverse party to testify in the civil case. So this will be an exception to
the rule in evidence that in civil cases there is nothing, that will prevent a plaintiff from compelling the
defendant to be a plaintiffs witness. In the same way that a defendant in a civil case can always compel
the plaintiff to be a defendants witness that is in a civil case. But with Rule 25 there is now a limitation
to the privilege given to these litigants. If Rule 25 is not availed of, the party who failed to avail of Rule
25 cannot compel the adverse party to give testimony in court.

A party not served with written interrogatories may not be compelled by the adverse party to
give testimony in open court. So this could serve as a means to disqualify a witness. A litigant can avail of
this provision by telling the other party that he cannot be compelled to be a witness because the
provisions or Rule 25 have not been satisfied.

We have to relate to certain rules in Evidence. In Evidence, in civil case there is NO prohibition
against the plaintiff compelling the defendant to be a witness. In the same way that theres no
prohibition in a civil case from the defendant compelling the plaintiff to be a defendants witness. This
prohibition applies only in criminal case. Of course in a criminal case, you know very well that the
prosecution cannot compel the accused to testify in court. But this rule applies only to criminal case. In a
civil case there is no such prohibition.

Although the plaintiff can compel the defendant to be a witness in a civil case, when the
defendant appears as a witness, of course he can always invoke the right against self-incrimination. But
the invocation of the right against self incrimination assumes that the witness is already in court
testifying. So that in Rule 25, if the plaintiff has in mind requesting later on that the defendant take the
witness stand as a witness for the plaintiff, the plaintiff should see to it that Rule 25 has been satisfied
that is the plaintiff must first serve interrogatories upon the defendant.

COMMENT:

UNLESS a party had been served with written interrogatories, he may not be compelled by the adverse
party:

1. To give testimony in open court; or

2. Give a deposition pending appeal.

The only exception is when the court allows it for GOOD CAUSE shown and to prevent a failure of
justice.

Note: The sanction adopted by the Rules is NOT one of compulsion in the sense that the party is being
compelled to avail of the discovery mechanics, but one of negotiation by depriving him of evidentiary
sources which would otherwise have been accessible to him.

xxx ________________________________________ xxx _________________________________xxx

251
 RULE 26

ADMISSION BY ADVERSE PARTY

Admission by adverse party under Rule 26 similar to the rule on actionable document under Rule 8

The other mode of discovery which has a very peculiar sanction is Rule 26, that is admission by a
party. In admission by a party, the adverse party is given a communication and he is asked to admit or
deny the document attached to the request, or to admit or deny the existence or non-existence of
certain facts. This is almost identical to the rule on actionable document. If you will recall in Rule 8,
under the rule on actionable document, if an actionable document is the basis of an action or a defense,
the actionable document must be attached to the pleading or its contents are copied word for word in
that pleading. With respect to the other party who receives the actionable document, his duty is to
make a specific denial under oath. Otherwise, the genuineness and due execution of the document are
deemed admitted.

Rule 26 Section 1: Request for admission

At any time after issues have been joined, a party may file and serve upon any other party a
written request for the admission by the latter of the genuineness of any material and relevant
document described in an exhibited with the request or of the truth of any material and relevant matter
of fact set forth in the request. Copies of the documents shall be delivered with the request unless
copies have already been furnished.

This is also the purpose of a request for admission under Rule 26. A plaintiff will serve a
communication to the defendant requesting the defendant to make a denial or admission of
genuineness of documents attached to this request for admission. If the defendant fails to make a
response the genuineness and due execution of the documents are admitted. And the admission just
like in actionable document, will be considered as a judicial admission.

Is there a conflict between the rule on actionable document and Rule 26?

Since request for admission and actionable document could refer to the same set of facts, is
there no overlap between actionable document and this mode of discovery, that is request for
admission? Well there is no overlap. The rule on actionable document is limited to actionable
documents. These are documents, which form the basis of an action or a defense. Request for admission
involves only evidentiary matters, not documents which form the basis of the cause of action or
defense.

So if the plaintiff has in his hands certain documents but they do not fall within the concept of
an actionable document, he can, by making use of Rule 26 compel the admission of the genuineness and
due execution of these documents through a request for admission. Again, there is a peculiar sanctioned

252
mentioned in Rule 26. If this mode of discovery is not availed by a party, he may not be allowed to
introduce during the trial, evidence concerning certain issues of fact. And these issues of fact refer to
those known to the adverse party and which could have been covered by a request for admission.

COMMENT:

PURPOSE OF WRITTEN REQUEST FOR ADMISSION

1. To allow one party to request the adverse party in writing to admit certain material and relevant
matters which most likely will not be disputed during the trial.

2. To avoid unnecessary inconvenience to the parties in going through the rigors of proof, before a
trial. (Riano, 2010 ed. P. 383)

3. To expedite trial and relieve the parties of the cost of proving facts which will not be disputed on
trial and the truth of which can be ascertained by reasonable inquiry.

When request may be made: At any time after the issues have been joined (after the responsive pleading
has been served)

What request may include:

1. Admission of the genuineness of any material and relevant document described in and exhibited
with the request;

2. Admission of the truth of any material and relevant matter of fact set forth in the request; or

3. Under this rule, a matter of fact not related to any documents may be presented to the other party
for admission or denial.

DISTINCTION REQUEST FOR ADMISSION from ACTIONABLE DOCUMENT

REQUEST FOR ADMISSION

1. Proper when the genuineness of an evidentiary document is sought to be admitted. If not denied
under oath, its genuineness is deemed impliedly admitted. Essentially a mode of discovery.

ACTIONABLE DOCUMENT

1. Must be attached to the complaint or copied therein. Its genuineness and due execution is deemed
impliedly admitted unless specifically denied under oath by the adverse party.

xxx ________________________________________ xxx _________________________________xxx

Rule 26 Section 2: Implied admission

Each of the matters of which an admission is requested shall be deemed admitted unless, within
a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or

253
within such further time as the court may allow on motion, the party to whom the request is directed
files and serves upon the party requesting the admission a sworn statement either denying specifically
the matters of which an admission is requested or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters.

Objections to any request for admission shall be submitted to the court by the party requested
within the period for and prior to the filing of his sworn statement as contemplated in the preceding
paragraph and his compliance therewith shall be deferred until such objections are resolved, which
resolution shall be made as early as practicable.

COMMENT:

Each matters of which an admission is requested shall be deemed admitted UNLESS the party to whom
the request is directed files and serves upon the party requesting the admission a sworn statement either
denying specifically the matters of which an admission is requested or setting forth the reasons why he
cannot either admit or deny those matters.

The REMEDY of the party, in this case, is to file a motion to be relieved of the consequences of the
implied admission. The amendment of the complaint per se cannot set aside the legal effects of the
request for admission since its materiality has not been affected by the amendment.

xxx ________________________________________ xxx _________________________________xxx

Rule 26 Section 3: Effect of admission

Any admission made by a party pursuant to such request is for the purpose of the pending
action only and shall not constitute an admission by him for any other purpose nor may the same be
used against him in any other proceeding.

COMMENT:

USE: An admission under this Section is for the purpose of the PENDING ACTION ONLY and cannot
be used in other proceedings.

xxx ________________________________________ xxx _________________________________xxx

Rule 26 Section 4: Withdrawal

The court may allow the party making an admission under this Rule, whether express or implied,
to withdraw or amend it upon such terms as may be just.

xxx ________________________________________ xxx _________________________________xxx

Rule 26 Section 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
254
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.

The same is true with Rule 26. In the last section of Rule 26, there is a sanction that is imposed
upon a party who fails to avail of this mode of discovery. He can be precluded from presenting evidence
on the fact in issue, if that could be covered by the mode of discovery. But with respect to the other
modes of discovery, there is no compulsion on the part of the litigants to avail of these modes. The
sanctions as clearly embodied in Rule 29 could be applied only if the mode of discovery has been availed
of and then the court issues an order directing a party to obey the modes of discovery and he refuses to
follow the order of the court. So the sanctions in Rule 29 assumes that a mode of discovery has been
availed of that is, the dismissal by the court of the complaint or the rendition of the court of a judgment
by default.

COMMENT:

The party who fails or refuses to request the admission of facts in question is prevented from thereafter
presenting evidence thereon UNLESS otherwise allowed by the court.

xxx ________________________________________ xxx _________________________________xxx

RULE 27

PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS

The remaining modes of discovery production and inspection of documents or things, physical
and mental examination of a person are modes of discovery which require always, prior leave of court,
unlike deposition or request for admission, or written interrogatories which we said could be availed of
without leave of court as long as the defendant has filed or served a responsive pleading. But when it
comes to production or inspection of documents or things, and in physical or mental examination of a
party, there is always prior leave of court. And the leave of court could be obtained through the filing of
a motion. So all that a plaintiff needs to do if he is interested in making use of these modes of discovery
is to file a motion for the production and inspection or things, or a motion for the physical and mental
examination of a person.

COMMENT:

This Rule applies only to a pending ACTION and the documents or things subject of the motion must be
only those within the possession, control, or custody of a party.

Production or Inspection of Documents or Things

1. Essentially a mode of discovery;

2. The rules is limited to the parties to the action;

255
 3. The order under this Rule issued only upon motion with notice to the adverse party.

Subpoena Duces tecum

1. A means of compelling production of evidence;

2. It may be directed to a person whether a party or not;

3. It may be issued upon an ex parte application.

Rule 27 Section 1: Motion for production or inspection; order

Upon motion of any party showing good cause therefor, the court in which an action is pending
may

(a) Order any party to produce and permit the inspection and copying or photographing, by or on
behalf of the moving party, of any designated documents, papers, books, accounts, letters,
objects or tangible things, not privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession, custody or control; or

(b) Order any party to permit entry upon designated land or other property in his possession or
control for the purpose of inspecting, measuring, surveying, or photographing the property or
any designated relevant object or operation thereon. The order shall specify the time, place and
manner of making the inspection and taking copies and photographs, and may prescribes such
terms and conditions as are just.

This mode of discovery for production and inspection of documents or things, work in a way
similar to that of a subpoena duces tecum. See in a subpoena duces tecum, the court will issue this
process directing a person to bring to the court certain documents during a trial date previously
scheduled. Therefore there is right away a big difference between subpoena duces tecum and this
production of documents or things.

In a subpoena duces tecum, the process would be addressed to any person, whether he is a
party to the case or he is just a plain witness to the case. So a stranger to a case can be compelled to go
to court and to bring with him certain documents through his subpoena duces tecum. When it comes to
production of documents, this mode of discovery could be addressed only to a party. It cannot be
addressed to a stranger to a case.

The other noticeable difference is that in production of documents, the purpose is not really to
bring the documents as evidence in court but only for purposes of discovery, that is for gathering
information. In subpoena duces tecum the assumption is that when these documents are presented in
court by compulsion, the interested party will thereafter introduce these documents in court.
256
 The scope of production and inspection of documents is of course broader than a subpoena
duces tecum. The title of this mode of discovery is production and inspection of documents and things,
so this could involve a piece of land, which is not inspection or entry into a piece of land, which is not
possible if we are going to use subpoena duces tecum. So through this order, the court can compel the
defendant to allow the plaintiff to enter a building or a piece of land for purpose of gathering
information. But again, what is essential here is that there is prior leave of court.

The Rules do not prohibit availment of the modes of discovery during trial

If we are going to read the sequence of these matters embodied in the Rules of Court, these
modes of discovery should be had before the trial of the case. The idea of these modes of discovery is to
enable the parties to gather enough information to prepare themselves for the trial. But it seems that
there is no prohibition if these modes of discovery are availed of while the court is conducting a trial of
the case. But usually, they are availed of before trial is opened by the court.

COMMENT:

Production of documents affords more opportunity for discovery than a subpoena duces tecum. However,
the rule is not intended for use as a dragnet or any fishing expedition.

Requisites:

1. A motion must be filed by a party showing good cause therefor;

2. The motion must sufficiently describe the document or thing sought to be produced or inspected;

3. The motion must be given to all the other parties;

4. The document or thing sought to be produced or inspected must constitute or contain evidence
material to any matter involved in the action;

5. The document or thing sought to be produced or inspected must not be privileged; and

6. The document or things sought to be produced or inspected must be in the possession of the
adverse party or, at least under his control.

In a petition for the production of papers and documents, they must be sufficiently described and
identified. Otherwise, the petition cannot prosper.

This mode of discovery does not authorize the opposing party or the clerk or other functionaries
of the court to distrain the articles or deprive the person who produced the same of their
possession, even temporarily (Tanda vs. Aldaya, L-13423, Nov. 23, 1959)

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 RULE 28

PHYSICAL AND MENTAL EXAMINATION OF

PERSONS

Rule 28 Section 1: When examination may be ordered

In an action in which the mental or physical condition of a party is in controversy, the court in
which the action is pending may in its discretion order him to submit to a physical or mental
examination by a physician.

COMMENT:

This mode of discovery is available in an action in which the mental or physical condition of a party is in
controversy.

Examples of this action would be:

a. An action for annulment of a contract where the ground relied upon is insanity or dementia;

b. A petition for guardianship of a person alleged to be insane;

c. An action to recover damages for personal injury where the issue is the extent of the injuries of
the plaintiff (Riano, 2010 ed. P. 389)

The mental condition of a party is in controversy in proceedings for GUARDIANSHIP over an

imbecile or insane person, while the physical condition of the party is generally involved in
PHYSICAL INJURIES cases.

Since the results of the examination are intended to be made public, the same are not covered by
the physician-patient privilege. (Sec. 24b, Rule 130)

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Rule 28 Section 2: Order for examination

The order for examination may be made only on motion for good cause shown and upon notice
to the party to be examined and to all other parties, and shall specify the time, place, manner,
conditions and scope of the examination and the person or persons by whom it is to be made.

COMMENT:

Requisites to Obtain an order for Examination:

1. A motion must be filed for the physical and mental examination;

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 2. The motion must show GOOD CAUSE for the examination;

3. The MENTAL or PHYSICAL CONDITION of a party is in controversy;

4. NOTICE to the party to be examined and to all other parties; and

5. The motion shall SPECIFY the time, place, manner, conditions, and scope of the examination and
the person or persons by whom it is made.

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Rule 28 Section 3: Report of findings

If requested by the party examined, the party causing the examination to be made shall deliver
to him a copy of a detailed written report of the examining physician setting out his findings and
conclusions. After such request and delivery, the party causing the examination to be made shall be
entitled upon request to receive from the party examined a like report of any examination, previously or
thereafter made, of the same mental or physical condition. If the party examined refuses to deliver such
report, the court on motion and notice may make an order requiring delivery on such terms as are just,
and if a physician fails or refuses to make such a report the court may exclude his testimony if offered at
the trial.

COMMENT:

Rules:

1. The person examined shall, upon request, be entitled to a copy of a detailed written report of the
examining physician setting out his findings and conclusions.

2. After such request and delivery, the party causing the examination to be made shall be entitled
upon request to receive from the party examined, a like report of any examination previously or
thereafter made, of the same physical or mental condition;

3. If the party examined refuses to deliver such report, the court on motion and notice may make an
order requiring delivery.

4. If a physician fails or refuses to make such report, the court may exclude his testimony if offered
at the trial.

5.

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Rule 28 Section 4: Waiver of privilege

By requesting and obtaining a report of the examination so ordered or by taking the deposition
of the examiner, the party examined any privilege he may have an in that action or any other involving

259
the same controversy, regarding the testimony of every person who has examined or may thereafter
examine him in respect of the same mental or physical examination.

COMMENT:

Where the party examined request and obtains a report on the result of the examination, the consequences
are:

1. He has to furnish the other party a copy of the report of any previous or subsequent examination
of the same physical and mental condition; AND

2. He waives any privilege he may have in that action or any other involving the same controversy
regarding the testimony of any other person who has so examined him or may thereafter examine
him.

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RULE 29

REFUSAL TO COMPLY WITH MODES OF DISCOVERY

Rule 29 Section 1: Refusal to answer

If a party or other deponent refuses to answer any question upon oral examination, the
examination may be completed on other matters or adjourned as the proponent of the question may
prefer. The proponent may thereafter apply to the proper court of the place where the depositions is
being taken, for an order to compel an answer. The same procedure may be availed of when a party or a
witness refuses to answer any interrogatory submitted under Rule 23 or 25.

If the application is granted, the court shall require the refusing party or deponent to answer the
question or interrogatory and if it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of
them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order,
including attorneys fees.

If the application is denied and the court finds that it was filed without substantial justification,
the court may require the proponent or the counsel advising the filing of the application, or both of
them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in
opposing the application, including attorneys fees.

Rule 29 Section 2: Contempt of court

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 If a party or other witness refuses to be sworn or refuses to answer any question after being
directed to do so by the court of the place in which the deposition is being taken, the refusal may be
considered a contempt of that court.

Rule 29 Section 3: Other consequences

If any party or an officer or managing agent of a party refuses to obey an order made under
Section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to
produce any document or other thing for inspection, copying, or photographing, or to permit it to be
done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to
submit to a physical or mental examination, the court may make such orders in regard to the refusal as
are just, and among others the following:

(a) An order that the matters regarding which the questions were asked, or the character or
description of the thing or land, or the contents of the paper, or the physical or mental condition
of the party, or any other designated facts shall be taken to be established for the purposes of
the action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or
defenses or prohibiting him from introducing in evidence designated documents or things or
items of testimony, or from introducing evidence of physical or mental condition;

(c) An order striking out pleadings or parts thereof, or staying further proceedings until the ordered
is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment
by default against the disobedient party; and

(d) In lieu of the foregoing orders or in addition thereto, an order directing the arrest of any party
or agent of a party for disobeying any of such orders except an order to submit to a physical or
mental examination.

Rule 29 Section 4: Expenses on refusal to admit

If a party after being served with a request under Rule 26 refuses to admit the genuineness of
any document or the truth of any matter of fact, serves a sworn denial thereof and if the party
requesting the admissions thereafter proves the genuineness of such document or the truth of any such
matter of fact, he may apply to the court for an order requiring the other party to pay him the
reasonable expenses incurred in making such proof, including attorneys fees. Unless the court finds that
there were good reasons for the denial or that admissions sought were of no substantial importance,
such order shall be issued.

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Rule 29 Section 5: Failure of party to attend or serve answers

If a party or an officer or managing agent of a party willfully fails to appear before the officer
who is to take his deposition, after being served with a proper notice, or fails to serve answers to
interrogatories submitted under Rule 25 after proper service of such interrogatories, the court on
motion and notice, may strike out all or any part of any pleading of that party, or dismiss the action or
proceeding or any part thereof, or enter a judgment by default against that party, and in its discretion,
order him to pay reasonable expenses incurred by the other, including attorneys fees.

Dismissal under this Rule is a dismissal with prejudice under RULE 17

These interrogatories are simply questions which one party will ask of the other. And the
question could relate to any material or relevant fact. Again, in modes of discovery, the Rules of Court
allow what is called a fishing expedition. Supposing the plaintiff sends interrogatories to the
defendant, but the defendant ignores the interrogatories received by him. Well aside from the sanction
given in Rule 25, there is also a sanction in Rule 29, that is the party who refuses to answer
interrogatories may have his case dismissed if that party is the plaintiff and there may be a judgment
by default if it is the defendant who ignores these interrogatories to parties.

A dismissal under Rule 29 by reason of a plaintiff to comply with Rule 25 or a plaintiff who
ignores Rule 25 or an order of a court relating to a mode of discovery will be a dismissal with prejudice.
It is an adjudication upon the merits. It could be treated as a dismissal under Rule 17, that is dismissal by
reason of the failure of a plaintiff to obey an order of a court or to comply with the provisions of the
Rules of Court.

Rule 29 Section 6: Expenses against the Republic of the Philippines

Expenses and attorneys fees are not to be imposed upon the Republic of the Philippines under
this Rule.

COMMENT:

If a party refuses to answer the whole written interrogatories, Section 5 of Rule 129 applies. Where a
party refuses to answer a particular question, in the set of written interrogatories and despite an order
compelling him to answer, still refuses to obey the order, Section 3 (c) will apply (Zepeda vs. China
Banking Corporation, GR No. 172175, Oct. 9, 2006)

Expenses and attorneys fees are not to be imposed upon the Republic of the Philippines under this Rule.

Refusal to comply with modes of discovery

1. REFUSAL TO ANSWER ANY QUESTION

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 Sanctions: The court, may, upon proper application, compel a refusing deponent to answer
(Section 1)

a. If granted and refusal to answer is without substantial justification, court may require the
refusing party to pay the proponent the amount of the reasonable expenses incurred in
obtaining the order, including attorneys fees.

b. If denied and filed without substantial justification, court may require the proponent to pay
the refusing party the amount of the reasonable expenses incurred in obtaining the order,
including attorneys fees.

Sanctions: A refusal to answer after being directed by the court to do so may be considered as
contempt of court. (Section 2)

2. REFUSAL TO BE SWORN (Section 2)

Sanctions: Cite the disobedient deponent in Contempt of court.

3. REFUSAL TO ANSWER DESIGNATED QUESTIONS OR REFUSAL TO PRODUCE

DOCUMENTS OR TO SUBMIT TO PHYSICAL OR MENTAL EXAMINATION (Section 3)

Sanctions: The court may make the following orders:

1. Prohibit the disobedient party to introduce evidence of physical or mental condition;

2. Refuse to allow the disobedient party to support or oppose claims or defenses;

3. Strike out pleadings or parts thereof;

4. Stay further proceedings;

5. Dismiss the action or proceeding or any part thereof;

6. Render a judgment by default against disobedient party.

7. Direct the arrest of any party or agent of a party disobeying any of such orders except an
order to submit to a physical or mental examination.

4. REFUSAL TO ADMIT UNDER RULE 26 (Section 4)

Sanctions: The court, upon proper application issue an order requiring the other party to pay him
reasonable expenses incurred, including attorneys fees.

5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS TO WRITTEN

INTERROGATORIES. (Section 5)

Sanctions: The court, on motion and notice, may:

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 1. Strike out all or any part of any pleading of disobedient party;

2. Dismiss the action or proceeding or any part thereof;

3. Enter a judgment by default against disobedient party;

4. Order payment of reasonable expenses incurred by the other including attorneys fees.

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RULE 30

TRIAL

Stages in the life of a civil case; is the court mandated to observe these stages?

The third stage in the life of a civil case after pre-trial is TRIAL, which starts with Rule 30. The
first stage if you recall is the stage for submission of pleadings. The second stage is pre-trial. And then
the third stage is TRIAL. The fourth stage is the rendition of judgment which should start with Rule 36,
and then after rendition of judgment comes the modes where a judgment could be assailed or
challenged.

Since these are the stages which are followed in a civil case, does it mean to say that the court is
always mandated to observe these stages? Should there always be a stage 1 submission of pleadings?
Should there always be stage 2 pre-trial? Should there always be stage 3 before the court validly
render judgment? The stages that we mentioned in the life of a civil case are the stages that are usually
followed by a civil case.

Stage 1 of course cannot be done away with. There must always be a stage for the submission of
pleadings that is the filing of a complaint, the service of summons and an opportunity for the
defendant to file an answer or a responsive pleading. We cannot do away with the first stage in the life
of a civil case, because a civil action is always commenced with the filing of a complaint.

How about the second stage the pre trial which under Rule 18 is also mandatory? Can the
court skip the pre-trial and then jump to the stage of trial and after trial render judgment? Although
Rule 18 tells us that a pre-trial is mandatory that is again the general rule. There could be civil cases
where the court does not conduct a pre-trial. It will skip pre-trial, It will go to trial and thereafter render
judgment.

This is illustrated by a case where the defendant has been declared in default under Rule 9.
Under Rule 9 if you will recall, if the judgment is declared in default, the court is given two options:
render a judgment by default right away or order the plaintiff to present his evidence ex parte. If the
court chooses the second option after declaring the defendant in default, that means to say there will
be a trial although that will be a one sided trial because it is an ex parte presentation of evidence by the
264
plaintiff. There is no more pre-trial conducted by the court. after the ex-parte trial, the court can now
render judgment by default.

Although Rule 18 mandates that the court should always conduct pre-trial on these civil case,
there may be instances when the court will no longer hold a pre-trial between the contending parties.

How about the third stage, that is the trial of a case? Can the court skip trial and just render a
judgment? So after stage 1 submission of pleadings, the court will jump away to stage 4 rendition of
judgment. There could be instances wherein a civil case after stage 1 is completed, the court will jump
to stage 4, that is the rendition of a judgment.

COMMENT:

TRIAL is the judicial process of investigating and determining the legal controversies, starting with the
production of evidence by the plaintiff and ending with his closing arguments (Acosta vs. People, SCRA
774). It is an examination before a competent tribunal of the facts or law put in issue in a case, for the
purpose of determining such issue.

General Rule: When an issue exists, trial is necessary. Decision should not be made without trial.

Exceptions: A civil case may be adjudicated upon without the need for trial in any of the following cases:

1. Judgment by default if the court does not require the claimant to submit evidence;

2. Judgment on the pleading (Rule 34);

3. Summary judgment (Rule 35);

4. Judgment on compromise;

5. Judgment by confession;

6. Dismissal with prejudice (Rule 17);

7. Judgment under Rule on Summary Procedure; and

8. Stipulation of fact.

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Rule 30 Section 1: Notice of Trial

Upon entry of a case in the trial calendar, the clerk shall notify the parties of the date of its trial
in such manner as shall ensure his receipt of that notice at least (5) days before such date.

COMMENT:

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Upon entry of the case in the trial calendar, the clerk of court shall notify the parties of the date of trial in
such manner as to ensure its receipt at least five (5) days before such date.

Distinction Trial from Hearing

TRIAL

1. Reception of evidence and other processes: the period for the introduction of evidence by both
parties

HEARING

1. Not confined to trial and presentation of evidence because it embraces several stages in litigation,
including the pre-trial and the determination of granting or denying a motion.

2. Does not necessarily imply presentation of evidence in open court but the parties are afforded the
opportunity to be heard.

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Rule 30 Section 2: Adjournments and postponements

A court may adjourn a trial from day to day, and to any stated time, as the expeditious and
convenient transaction of business may require, but shall have no power to adjourn a trial for a longer
period than one month for each adjournment, nor more than three (3) months in all, except when
authorized in writing by the Court Administrator, Supreme Court.

COMMENT:

A Court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient
transaction of business may require.

However, the court has no power to adjourn a trial for:

1. A period longer than one month for each adjournment; OR

2. More than 3 months in all, except when authorized in writing by the court administrator, Supreme
Court

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Rule 30 Section 3: Requisites of motion to postpone trial for absence of evidence

A motion to postpone a trial on the ground of absence of evidence can be granted only upon
affidavit showing the materiality or relevancy of such evidence, and that diligence has been used to
procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or
reserves the right to object to their admissibility, the trial shall not be postponed.

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COMMENT:

Requisites:

1. A motion for postponement stating the ground relied upon must be filed; AND

2. The motion must be supported by an affidavit showing:

a. The materiality and relevancy of such evidence; and

b. That due diligence has been used to procure it.

If the adverse party admits the facts to be given in evidence, the trial will not be postponed even if he
objects or reserves the right to object to their admissibility.

Note: This section DOES NOT apply to criminal cases as the rule on postponements in criminal cases is
governed by Sec. 2, Rule 119.

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Rule 30 Section 4: Requisites of motion to postpone trial for illness of party or counsel

A motion to postpone a trial ground of illness of a party or counsel may be granted if it appears
upon affidavit or sworn certification that the presence of such party or counsel at the trial is
indispensable and that the character of his illness is such as to render his non-attendance excusable.

COMMENT:

Requisites:

1. A motion for postponement stating the ground relied upon must be filed; and

2. The motion must be supported by an affidavit or sworn certification showing:

a. The presence of such party or counsel at the trial is indispensible; and

b. That the character of his illness is such as to render his non-attendance excusable.

Postponements are addressed to the sound discretion of the court, it cannot be controlled by mandamus
(Olsen vs. Fressel & Co. G.R. No. 12955, Nov. 8, 1917)

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Rule 30 Section 5: Order of Trial

Subject to the provisions of Section 2 of Rule 31, and unless the court for special reasons
otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as
follows;

267
 (a) The plaintiff shall adduce evidence in support of his complaint;

(b) The defendant shall then adduce evidence is support of his defense, counterclaim, cross-
claim and third party-party complaint;

(c) The third party defendant, if any, shall adduce evidence of his defense, counter-claim, cross-
claim and fourth-party complaint;

(d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by
them;

(e) The parties against whom any counter-claim or cross-claim has been pleaded, shall adduce
evidence in support of their defense, in the order to be prescribed by the court;

(f) The parties may then respectively adduce rebutting evidence only, unless the court, for
good reasons and in the furtherance of justice, permits them to a adduce evidence upon
their original case; and

(g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless
the court directs the parties to argue or to submit their respective memoranda or any
further pleadings.

If several defendants or third-party defendants, and so forth, having separate defenses appear
by different counsel, the court shall determine the relative order of presentation of their
evidence.

A trial is rendered only in Rule 30 if there are triable issues. That is clearly provided in Rule 30
and the trial is limited to the facts in issue that are indentified in the pre-trial order. So if the pre-trial
order does not identify any fact in issue, any probanda, there is really nothing for the court to try. So the
trial assumes that in the pre-trial order there are triable issues. if there is no triable issue the court will
simply render a judgment.

Supposing there are triable issues. There is a probandum identified in the pre-trial order. Can
the court still do away with trial? Well the answer is YES. You see the course of the trial is controlled by
the court and of course by the pre-trial order. Even if there are triable issues, and these triable issues
should always refer to factual questions. Triable issues could not refer to factual questions. Triable
issues could not refer to legal questions. They are limited to factual disputes. Even if there are factual
disputes in a case, the court can still skip the trial stage. The court can skip the trial stage even if there
are factual issues identified in the pre-trial order. If the parties/ if the litigants agree to submit
stipulation of fact.

If the parties agree to submit and they indeed submit complete stipulation of facts, there is
nothing for the court to try anymore. It is just up to the court to render judgment based on the facts
stipulated by the parties.

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Reversed order of trial

You also notice that in Rule 30, although there is an order of trial indicated in Rule 30, which
says that it is the first the plaintiff who presents evidence, and next comes the defendant who will
present evidence on his defense, his cross-claim, his third party complaint, etc., it is preceded by the
phrase unless otherwise ordered by the court. in other words, the trial court does not have to follow
the order of trial mentioned in Rule 30. The trial court is given authority to follow what jurisprudence
calls a reverse order of trial.

Usually in a trial, which follows the rules on argumentation and debate, in argumentation and
debate it is the affirmative side, which usually makes the opening statement. That is followed in a trial,
usually in Rule 30 it is the plaintiff who presents evidence because it is the plaintiff who makes
affirmative allegations. A plaintiff will always be making affirmative allegations when he files a complaint
because the Rules require him to state ultimate facts. And when a plaintiff files a complaint which
embodies ultimate facts, he will always be compelled to state or to allege that he has a right, and that is
an affirmative allegation. And then he follows this averment with an allegation that this right has been
violated. So that is the normal order of trial of a civil case, that is the plaintiff first, and thereafter the
defendant will present evidence.

But if the court so decides, the court can ignore the order of trial mentioned in Rule 30. When
we say that the court will ignore the order of trial in Rule 30, the court will direct that the trial will follow
a reverse order of trial. It is a reverse order of trial because it is the defendant who first presents
evidence ahead of the plaintiff and after the defendant has presented evidence, it is now the turn of the
plaintiff to present his own evidence. Is this not anomalous? Is it not anomalous for a court to direct a
reverse order of trial? Is it not anomalous for a court to direct the defendant first to present evidence to
prove his defenses even if the plaintiff has not presented any evidence to prove the existence of a
claim? Well in a civil case that is allowed because that is the nature of a civil case of we take into
account the rules concerning pleadings.

No reverse order of trial if defendant raises negative defenses

In a civil case, unlike in a criminal case, the defending party is required to respond to a
complaint, and in that response/ in that answer, he should give the negative or affirmative defenses or
both. If the defendant in his answer presents a negative defense, then the court cannot direct that a
reverse order of the trial be followed. If the defenses of the defendant in the answer are negative
defenses, the plaintiff must always present his evidence ahead of the defendant. But if the defendant in
his answer relies upon an affirmative defense, then a reverse order of trial order is proper.

Why is this so? we take our old example of a creditor filing a complaint against a debtor for the
recovery of an unpaid loan. Of course in that complaint there are allegations about the existence of the
loan, about the fact that the loan has matured, that the loan has not been paid by the defendant despite
maturity. That is the theory of the plaintiff. Now comes the responsive pleading of the defendant, the
answer of the defendant, and the defendant in his answer sets up an affirmative defense of payment. So
269
the defendant tells the court: I am not liable to pay claim of the plaintiff because the claim of the
plaintiff has long been paid. That is an affirmative defense. If your are going to analyze the issue by the
complaint, and the answer, the only probandum/ the only dispute between the parties is whether or not
the loan has been paid. That issue whether or not the loan has been paid, impliedly admits that there
was a loan given by the plaintiff to the defendant.

Since the defendant had already admitted, that is judicially, that there was a loan obtained by
him from the plaintiff, there is no need for the plaintiff to prove his affirmative allegation that he gave
loan to the defendant. There is no need for a litigant to prove matters that are already admitted by his
opponent. These admissions constitute a judicial admission and they cannot be rebutted generally by
the admitter. That is the situation faced by the court- that is, the defendant has already admitted the
existence of the loan, then the court can rightfully tell the defendant: You present evidence that you
have really paid the loan. So a reverse order of trial will be followed by the court. it is the defendant
who will first present evidence to prove his affirmative defense of payment, and thereafter the plaintiff,
if he so desires, can present contrary proof that there was no payment at all made by the defendant.

COMMENT:

Trial is required only if there are triable issues. if there is no triable issues, the court will render judgment.

Note: Subject to Section 2 of Rule 31 and unless the court for special reasons, otherwise directs, the trial
shall be limited to the issues stated in the pre-trial order.

Reverse Order of Trial

In this situation, the defendant presents evidence ahead of the plaintiff.

When proper: If the defendant in his answer relies upon an affirmative defense, a reverse order of trial is
proper.

Ratio: Plaintiff need not have to present evidence since judicial admission do not require proof (Sec. 2
Rule 129)

Note: Evidence offered in rebuttal is not automatically excluded just because it would have been more
properly admitted in the case in chief.

xxx ________________________________________ xxx _________________________________xxx

Rule 30 Section 6: Agreed Statement of Facts

The parties to any action may agree, in writing, upon the facts involved in the litigation, and
submit the case for judgment on the facts agreed upon, without the introduction of evidence.

If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed
facts in such order as the court shall prescribe.

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 In stipulations of fact which could lead to a situation, where the court will no longer hold a trial
case, Rule 30 also speaks about stipulations submitted by the parties in writing. So the implication is
that, stipulations of fact verbally made by the parties to a civil case may not be admissible, or verbal
stipulations of facts will not be allowed. In civil case, stipulation of fact in writing or verbally made are all
admissible. They are allowed by the Rules. So even if Rule 30 specifically says that these stipulations of
fact must be in writing, the court can always consider stipulations of fact verbally made by the parties.

A good illustration of facts stipulated verbally which are binding upon the parties are those
stipulations made under Rule 18, that is, during the pre-trial conference. During a pre-trial conference
all that the parties submit is a pre-trial brief which may or may not contain facts stipulated upon. Usually
the pre-trial brief contains facts which one party will suggest should be stipulated upon. There is no
actual stipulation made in the pre-trial submitted by the parties.

Stipulations verbally made are binding

In the course of the pre-trial conference which is usually held as if the case is on trial presided
over by the court, the counsel of the parties or the parties themselves, verbally tell the court whether or
not they admit the existence of certain facts. This admission is usually made verbally, but that will be
considered as binding upon the party. So even if Rule 30 says that stipulations should be reduced into
writing, jurisprudence is to the effect that stipulations verbally made by the parties to a civil case are
also binding upon these parties.

Stipulations of fact in criminal cases must always be in writing

But you should also bear in mind that we follow a different procedure in criminal cases. So to
avoid confusion, there could also be stipulations of fact in criminal cases. There is no question about it.
But the stipulations of fact in criminal case, that is during a pre-trial conference must always be in
writing, signed by the accused and his counsel to be admissible against the accused. The Rules on
stipulations of facts are more strict in a criminal case. But in a civil case there is no need for the parties
to reduce into writing the facts stipulated upon. And even if reduced into writing there is no need for
the parties themselves to sign the facts stipulated. The lawyer can sign this written stipulations of facts.

The reason why a lawyer can sign this written stipulation of facts is that during the pre-trial
conference, the lawyer who represents the client in the absence of a client is required by the Rules to
present a special power of attorney authorizing him to enter into compromise, to agree to submit the
dispute to alternative dispute resolutions, or to enter stipulations of fact. So we can assume that when a
counsel signs a document which embodies stipulations of fact, he is duly empowered by his client. But
this applies only to a civil case.

COMMENT:

This is known as STIPULATION OF FACTS and is among the purposes of a pre-trial. Under the Rules,
it must be in writing. But it may also be verbally made in open court.

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Stipulation of facts verbally made is binding. i.e. those facts given during pre-trial conference.

However, stipulation of facts in CRIMINAL cases must at all times be in writing.

Note: If NO EVIDENCE IS PRESENTED and the case is submitted for decision on an agreement of the
parties, the court should render judgment in accordance with said agreement. The court cannot impose
upon the parties a judgment different from their compromise agreement.

However, the compromise agreement must not be contrary to law, morals, good customs, public order and
public policy. (Philippine Bank of Communications vs. Echiverri, G.R. No. L-41795, August 29, 1980)

Stipulations of Facts are not permitted in actions for annulment of marriage and for legal
separation.

SQF in Civil Cases

1. May be signed by the counsel alone who has a special power of attorney;

2. May be made verbally or in writing.

SOF in Criminal Cases

1. Must be signed both by the counsel and the accused;

2. Strict; it must always be in writing.

xxx ________________________________________ xxx _________________________________xxx

Rule 30 Section 7: Statement of judge

During the hearing or trial of a case any statement made by the judge with reference to the
case, or to any of the parties, witnesses or counsel, shall be made of record in the stenographic notes.

Rule 30 Section 8: Suspensions of Actions

The suspension on actions shall be governed by the provisions of the Civil Code.

COMMENT:

Under Article 2030 of the Civil Code; Every civil action or proceeding shall be suspended:

1. If willingness to discuss a possible compromise is expressed by one or both parties; OR

2. If it appears that one of the parties, before the commencement of the action or proceeding, offered
to discuss a possible compromised but the other party refused the offer.

Rule 30 Section 9: Judge to receive evidence; delegations to clerk of court vs. trial by commissioner

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 The judge of the court where the case is pending shall personally receive the evidence to be
adduced by the parties. However, in default or ex parte hearings, and in any case where the parties
agree in writing, the court may delegate the reception of evidence to its clerk of court who is a member
of the bar. The clerk of court, shall no power to rule on objections to any question or to the admission of
exhibits, which objections shall be resolved by the court upon submission of his report and the
transcripts within ten (10) days from termination of the hearing.

The trial should be presided by a judge. That is the reason why are paying the salary of judges.
They preside over the trial of the case. The trial of the case cannot be delegated by the judge to
somebody else, except again three instances recognized in Rule 30. That is where the judge does not
have to preside over the reception of evidence. He can delegate this authority to receive evidence to his
branch clerk of court who is a lawyer in tree (3) instances; (1) in default proceedings; (2) in ex parte
proceedings; or (3) where the parties agree that the branch clerk of court will be the one to preside over
the proceedings for the reception of evidence.

When the judge delegates to his branch clerk of court who is a lawyer, the authority to receive
evidence in these three (3) instances, the branch clerk of court is not acting as a commissioner. The trial
by a commissioner is different from a trial where the court delegates to his branch clerk of court the
authority to receive evidence. And it is only in these three instances; default proceedings, ex parte
proceedings, and when the parties agree that it is the branch clerk of court who should preside when
the evidence is presented by them.

In default instances, we mentioned earlier in Rule 9 that the court can order the plaintiff to
present his evidence. That proceeding is an ex parte proceeding because the defendant is in default, he
cannot participate during the trial of the case. Another instance is Rule 18 that is pre-trial. When the
defendant does not appear during the pre-trial conference and he does not authorize anybody to
appear on his behalf or if the defendant does not submit a pre-trial brief, that sanction imposed by Rule
18 upon this defendant, is to allow the plaintiff to present his evidence ex parte. In this situation, the
court can delegate to his branch clerk of court the matter of receiving evidence coming from the
plaintiff.

COMMENT:

General Rule: The judge shall personally receive and resolve the evidence to be adduced by the parties.

However, the reception of such evidence may be delegated under the following conditions:

1. The delegation may be made only in default or ex-parte hearings, and in any case where the
parties agree in writing;

2. The reception of evidence shall be made only by the clerk of court of that court who is a member
of the bar;

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 3. Said clerk shall have no power to rule on objections to any question or to admission of evidence
or exhibits;

4. He shall submit his report and transcripts of the proceedings, together with the objections to be
resolved by the court, within ten (10) days from the termination of the hearing.

xxx ________________________________________ xxx _________________________________xxx

RULE 31

CONSOLIDATION OF SEVERANCE

CONSOLIDATION involves several actions having a common question of law or fact which may be
jointly tried.

SEVERANCE contemplates a single action having a number of claims, counterclaims, cross claims,
third party complaints, or issues which may be separately tried.

Rule 31 Section 1: Consolidation

When actions involving a common question of law or fact are pending before the court, it may
order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions
consolidated; and it may make such orders concerning proceedings therein as may tend to avoid
unnecessary cost or delay.

The trial of cases is governed by only three rules, that is Rule 30, 31 and 32. And Rule 31 speak
about consolidation and severance of cases. Old cases, that is decided by the court even before the 1940
Rules of court took effect, mentioned the three modes of consolidation of cases. And these three modes
were identified as consolidation proper, the test case method, and the third method was for the two or
more cases to be consolidated into one, which made it hard for us to understand the difference
between the second and the third mode. With respect to the test case method, it is easy to understand
why it was called the test case method.

When we speak about consolidation of cases, the assumption is that there are at least two cases
pending in court, involving a common question of fact or law. The parties do not have to be the same.
What is required simply in consolidation is that there is a common question of fact or law. There need
not be even a common cause of action. So if there are two or more cases pending in court, involving a
common cause of action and we are going to use the third mode which is the test case method, it is
simply means that the court will try one of the cases. The court will decide only the case that has been
tried. The other cases will not be tried at all because the decision in the case that has been tried and
decided will also be the decision in the other cases. That is why we have a test case, that is we consider
as test case one of the pending cases.

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 The concept of consolidation, that is the difference in the concept of consolidation between the
first and the second mode does not appear to be clear because the only requisite as we said is that there
is a common question of fact or law, and there is at least two cases pending in court.

By the way, if we say that there are two or more cases pending in court involving the same
cause of action, our assumption is that these two or more cases must have been filed independently of
one another. If these cases are filed independently of another we can also assume that these two cases
carry different docket numbers. So case #1 could have a docket number 123 and the case #2 will have a
docket number of 8910, although these two cases involve a common question of fact or law.

In this second mode of consolidation, the docket numbers of these cases will be retained by
them, that is case #1 will be tried together with case#2 jointly. And then, since there is a joint trial, there
will be a joint decision rendered by the court. So we do not affect the independent existence of these
two or more cases. They remain to be independent of one another although the court will try the case
jointly and will render just one joint decision.

This mode of consolidation, which is called consolidation proper by the old decisions, applies to
instances where several cases are filed independently of one another they involve a common question
of fact or law but there joinder is not allowed. Usually, when there are several causes of action and they
involve the same question of law or fact, the remedy of the plaintiff is to join these causes of action
using this principle of joinder of causes and joinder of parties. But you will note that not all causes of
action can be joined even if they involve a common question of fact or law, unless they satisfy the
requirements on joinder of parties. So if the rule on joinder parties cannot be satisfied, the only
alternative given to the plaintiff is to file separate complaints. After filing these separate complaints, he
can then ask the court to conduct a joint hearing and for the court to render a joint decision of these
cases.

Another limitations imposed by old cases is that in consolidation of cases, the consolidation
could only be had if these cases are pending before the same court. So if certain Regional Trial Court has
several branches and these cases are assigned to different branches of the court, there could be
consolidation only with the conformity of the other branches concerned. So if the case is assigned to
branch 10 and the case #2 is assigned to branch 20, branch 10 cannot order consolidation of the case
being tried in branch 20, unless the judge of branch 20 will agree. Well the reason is because these are
coordinate courts. We cannot expect one judge to be issuing an order directed to another judge of
coordinate jurisdiction. That is very discourteous on his part to do that.

So old cases refer to instances where these several cases, where these two or more cases
involving a common question of fact or law, are being tried by the same branch of the same court. But
even if they are pending before different branches consolidation could still be allowed with the
permission of the presiding judge concerned.

Later on, this concept of consolidation of cases involving a common question of fact or law was
liberalized, in the sense that even if a case for instance is pending before the Regional Trial Court of
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Agusan and a similar case is pending before Regional Trial Court of Cebu, which belong to different
regional districts, as long as the cases involve a common question of fact or law, there could still be
consolidation. So a case pending before the Regional Trial Court of Agusan can be consolidated with a
case pending before a Regional Trial Court of Cebu as long as we meet the requirement that there is a
common question of fact or law involved.

But the consolidation must be ordered by the Supreme Court. The Agusan court cannot order
the consolidation of a case that is being heard by a Cebu Regional Trial Court, because the Agusan judge
does not have the authority to require the Cebu judge to comply with his order. So cases pending before
different courts, coordinate courts of different regional districts may be consolidated as long as they
have a common question of fact or law but the order to consolidate should come from the Supreme
Court itself. That means to say that anyone of the interested parties can go up to the Supreme Court for
the issuance of an order of consolidation.

So whether the mode used is recasting, or consolidation proper, or the test case method, the
assumption is that there at least two cases pending before the trial court and involving a common
question of fact or law. We mentioned earlier that in the last two modes, that is the consolidation
proper and the test case method, the identity of all pending cases is not lost. So the docket number is
not changed at all. It is in recasting the first mode, where there seems to be a reshaping of all the cases
involved. The two or more cases pending in court will be converted into one case. Thats why there is
only one hearing and only one decision.

How do we converted two or more cases into just one case for purpose of consolidation? This
will necessitate amendment to the pleadings and the dismissal of some of the cases and the retention of
only one of them. So if there are two cases involving a common question of act or law, case #2 may have
to be dismissed or dropped. How about the plaintiff or the defendant in case #2? They are going to be
impleaded in case #1. Now if the parties in case #2 are going to be impleaded in case #1; there will be a
need to amend the pleadings in case #1, that is, we may add a plaintiff, we may add a defendant. So that
what we are going to apply really is joinder of causes of action together with joinder of parties.

COMMENT:

General Rule: Consolidation is discretionary upon the court

Exceptions: Consolidation becomes a matter of duty when the case are:

1. Pending before the same judge; OR

2. Filed with different branches of the same RTC and one of such cases has NOT been partially
tried.

Purpose: To avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested
dockets, simplify the work of the trial court and save unnecessary costs and expenses.
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Note: The court in which several cases are pending involving common questions of law and facts may
hear initially the principal case and suspend the hearing in the other cases.

Requisites for consolidation:

1. Action which involve a common question of law or fact; and

2. There must be at least 2 actions pending before the same court.

If filed with DIFFERENT courts, an authorization from the SUPREME COURT is necessary.

Three ways of consolidating cases

1. By recasting the cases already instituted Reshaping of the cases by amending the pleading and
dismissing some cases and retaining only one case. There must be joinder of causes of action and
of parties;

2. By consolidation proper or by consolidating the existing cases it is a joint trial with joint
decision, the cases retaining their original docket numbers; and

3. By test case method by hearing only the principal case and suspending the hearing on the other
cases until judgment has been rendered in the principal case. The cases retain their original docket
numbers.

Consolidation of cases on appeal and assigned to different divisions of the SC and the CA is also
authorized.

Note: The consolidation of civil with criminal cases is allowed. This is now sanctioned under Section 2
(a), Rule 111 of the Rules of Criminal Procedure (Canos v. Peralta, G.R. No. L-38352, August 19, 1982)

xxx ________________________________________ xxx _________________________________xxx

Rule 31 Section 2: Separate trials

The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any
claim, cross-claim, counter-claim, or third-party complaint, or of any separate issue or of any number of
claims, cross-claims, counterclaims, third-party-complaints or issues.

The opposite of consolidation is severance of claims. It is the opposite because in severance

there is only one case pending in court, but the court will conduct separate trial for one of the claims
mentioned in this complaint. So the reference here is the principle of joinder of causes again, and
joinder of parties. If one complaint there are several causes which are embodied belonging to the same
or different parties, the joinder of causes and the joinder of parties are allowed as long as we follow the
requirements for joinder of parties in Rule 3.

In one complaint there is an application of joinder of cause and joinder of parties, the
assumption is there at least two causes that are embodied in one complaint. The court can order a
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separate trial for each of these claims. After conducting a separate trial, the court can render separate
decisions. But everything depends upon the discretion of the court. In Rule 36 in fact , if the court
renders several decisions that is involving one case, each decision that is rendered by the court is not
appealable generally. There could only be an appeal from a several judgment rendered by the court if
the court allows an appeal therefrom.

RULE 32

TRIALS BY COMMISSIONER

Instances when appointment of a commissioner is mandatory

The other rule governing the trial of cases is trial by commissioner. It is again noticeable that a
trial by commissioner depends largely upon the discretion of the court. So if the trial court does not wish
to appoint a commissioner to try the case, that is the discretion of the court. are there instances where
the appointment of a commissioner ceases to be discretionary on the part of the court and instead this
becomes mandatory? There are four known instances in the Rules where the appointment of a
commissioner is mandatory. And the first two refers to special civil action that is in eminent
domain/expropriation and in partition.

The appointment of a commissioner is mandatory. The court refuse to appoint a commissioner.

Another instance is special proceedings, for the settlement of an estate of a deceased person,
in the trial of contested claims the court should appoint a commissioner. Another instance applies also
in special proceedings, when the executor or administrator submits his accounting, the court does not
really have to preside over the hearing for the approval of the executors accounting. That can de
delegated to a commissioner.

Trial by commissioner under Rule 32 vs. delegation to the clerk of court under Rule 30

The trial by a commissioner should be distinguished from the situation mentioned in Rule 30,
that is when the court appoints his branch clerk of court to receive the evidence. In that instance, the
clerk of court is not acting as a commissioner. The powers of a commissioner for the trial of a case are
much broader than that given branch clerk of court who receives evidence under the instances
mentioned under Rule 20. While Rule 30 requires that the branch clerk of court must be a lawyer, trial
by commissioner does not require that the commissioner be a lawyer. Well it easy to understand,
because the issue tried or assigned to be tried by a commissioner may require the knowledge not of a
lawyer but another professionals. When the issue for instance pertains to figures, thats accounting, the
taking of a long account, the best commissioner to be appointed is an accounting. When the matter
pertains to mining or other natural resources and this case is being tried by the court, the court should
not appoint a lawyer to be commissioner. It should appoint a mining engineer or a geologist to be a
commissioner. So that is the more significant difference between the qualification between a branch

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clerk of court who is empowered to receive evidence under Rule 30, and a commissioner appointed by
the court.

In the case of a commissioner appointed by the court, he also possesses the power to rule on
objection in the course of the proceedings, which is not given to the branch clerk of court under Rule 30.
So even if the branch clerk of court is a lawyer, and in the course of the presentation by the plaintiff of
his evidence, he notices that certain objections should be raised, and this evidence should not be
admitted, the branch clerk of court cannot do anything about it. He is mandated to receive all the
evidence presented by the plaintiff.

But in the case of a commissioner appointed by the court, during the trial presided by the
commissioner, when objections are raised, the commissioner can rule on the objections. In other words,
the commissioner acts as if he were the trial judge for this particular case. The only authority that is
withheld from a commissioner in fact, is the power to render decision. He can try the case, he can
submit a commissioners report, he can submit his recommendations as to who is going to prevail by the
rendition of the decision is the sole prerogative of the judge. A commissioner cannot decide a case
which he has tried.

In a trial by commissioner although the caption is trial by commissioner, the trial is not limited to
the trial of the facts in issue. The court can appoint a commissioner to try matters, issues that arises
even after the judgment has become final and executory. During the stage of execution of judgment
under Rule 39, the court can still validly appoint a commissioner to try these new matters. This is not
possible in Rule 30 where the court designates his branch clerk of court to receive evidence of the
parties. The term reception of evidence means that the branch clerk of court can only be so designated
during the stage when the court is receiving evidence by both plaintiff and defendant.

Rendition of Judgment

After the trial of the case, the next stage in the life of that case is the rendition of judgment. But
again you should always remember that the court can render a judgment even if the court does not
conduct a trial. Even if the court does not hold a pre-trial conference. There could be civil cases where
after the first stage is terminated, that is the pleadings stage is completed, the court will jump to the
fourth stage, that is from the pleadings stage, the court will jump to the judgment stage bypassing the
stage for pre-trial and bypassing the stage for trial. There is nothing wrong if the court renders a
judgment without conducting a pre-trial, without conducting a trial in proper instances. When we say in
proper instances, this should not be taken as the general rule. The general rule is that a civil case will
naturally follow the stages mentioned in the Rules of Court.

Rule 32 Section 1: Reference by consent

By written consent of both parties, the court may order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in
these Rules, the word commissioner includes a referee, an auditor and an examiner.

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COMMENT:

COMMISSIONER a person to whom a case pending in court is referred, for him to take testimony,
hear the parties and report thereon to the court, and upon whose report, if confirmed, judgment is
rendered.

Reference to a commissioner may be had by the written consent of both parties.

General Rule: Trial by commissioner depends largely upon the discretion of the court; BUT the
following are instances when such appointment is mandatory:

1. Expropriation (Rule 67);

2. Partition (Rule 69);

3. Settlement of Estate of a deceased person in case of contested claims; and

4. Submission of accounting by executors or administrators.

Note: An irregularity in the appointment of a commissioner must be seasonably raised in the trial court
where the defect could still be remedied. It can be WAIVED by consent of the parties, express or implied.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 2: Reference ordered on motion

When the parties do not consent, the court may, upon the application of either or of its own
motion, direct a reference to a commissioner in the following cases:

(a) When the trial of an issue of fact requires the examination of a long account on either side, in
which case the commissioner may be directed to hear and report upon the whole issue or any
specific question involved therein;

(b) When the taking of an account is necessary for the information of the court before judgment, or
for carrying a judgment or order into effect;

(c) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any
stage of a case, or for carrying a judgment or order into effect.

COMMENT:

Situations when reference to a Commissioner may be made ON MOTION

1. Examination of a long account;

2. Taking of an account is necessary;

3. Carrying a judgment or order into effect; or

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 4. Question of fact, other than upon the pleading arises.

Distinction Delegation to clerk of court from Trial by Commissioner

Delegation to clerk of court

1. Clerk of court must be a lawyer;

2. Clerk of court cannot rule on objections or on the admissibility of evidence;

3. Delegation is made during the trial

Trial by commissioner

1. Commissioner need not be a lawyer;

2. Commissioner can rule on objections or on admissibility of evidence;

3. Commissioner can be appointed even after the case has become final and executory.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 3: Order of reference; powers of the commissioner

When a reference is made, the clerk shall forthwith furnish the commissioner with a copy of the
order of reference. The order may specify or limit the powers of the commissioner, and may direct him
to report only upon particular issues, or to do or perform particular acts, or to receive and report
evidence only, and may fix the date for beginning and closing the hearings and for the filing of his
report. Subject to the specifications and limitations stated in the order, the commissioner has and shall
exercise the power to regulate the proceedings in every hearing before him and to do all acts and take
all measures necessary or proper for the efficient performance of his duties under the order. He may
issue subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the
order of reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall
proceed in all respects as it would if held before the court.

COMMENT:

Requisites:

1. It must state the purpose;

2. It must be in writing;

3. It may specify or limit the power of the commissioner

Power of the commissioner

1. Exercise power to regulate the proceedings before him;

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 2. Do all acts and take all measures necessary or proper for the efficient performance of his duties;

3. Swear witnesses;

4. Issue subpoenas and subpoenas duces tecum;

5. Unless otherwise provided in the order of reference, rule upon the admissibility of evidence.

Note: Requirement of hearing cannot be dispensed with as this is the essence of due process

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 4: Oath of commissioner

Before entering upon his duties the commissioner shall be sworn to a faithful and honest
performance thereof.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 5: Proceedings before commissioner

Upon receipt of the order of reference and unless otherwise provided therein, the commissioner
shall forthwith set a time and place for the first meeting of the parties or their counsel to be held within
ten (10) days after the date of the order of reference and shall notify the parties or their counsel.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 6: Failure of parties to appear before commissioner

If a party fails to appear at the time and place appointed, the commissioner may proceed ex
parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party or
his counsel of the adjournment.

COMMENT:

Where the order was merely to examine the accounts involved in the counterclaim without any
direction to hold hearings, the commissioner do not need the presence of the parties (Froilan v. Pan
Oriental Shipping, G.R. No. L-6060, September 30, 1954)

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 7: Refusal of Witness

The refusal of a witness to obey a subpoena issued by the commissioner or to give evidence
before him, shall be deemed a contempt of the court which appointed the commissioner.

COMMENT:

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 Disobedience to a subpoena issued by the commissioner is deemed a contempt of the court which
appointed the latter.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 8: Commissioner shall avoid delays

It is the duty of the commissioner to proceed with all reasonable diligence. Either party, on
notice to the parties and commissioner, may apply to the court for an order requiring the commissioner
to expedite the proceedings and to make his report.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 9: Report of commissioner

Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file
with the court his report in writing upon the matters submitted to him by the order of reference. When
his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his
report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of
the testimonial evidence presented before him.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 10: Notice to parties of the filing of report

Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed
ten (10) days within which to signify grounds of objections to the finding of the report, if they so desire.
Objections to the report based upon grounds which were available to the parties during the proceedings
before the commissioner, other than objections to the findings and conclusions therein set forth, shall
not be considered by the court unless they were made before the commissioner.

COMMENT:

Upon the filing of the report of the commissioner:

1. The parties shall be notified by the clerk; AND

2. The parties shall be allowed ten (10) days within which to object to the findings of the report.

Note: Objections to the report based upon grounds which were available to the parties during the
proceedings before the commissioner shall not be considered by the court, UNLESS they were made
before the commissioner.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 11: Hearing upon report

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 Upon the expiration of the period of ten (10) days referred to in the preceding section, the
report shall be set for hearing, after which the court shall issue an order adopting, modifying, or
rejecting the report in whole or in part, or recommitting it with instructions, or requiring the parties to
present further evidence before the commissioner or the court.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 12: Stipulations as to findings

When the parties stipulate that a commissioners findings of fact shall be final, only questions of
law shall thereafter be considered.

COMMENT:

When the parties stipulate that a commissioners finding shall be final, only question of law shall
thereafter be considered.

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 13: Compensation of commissioner

The court shall allow the commissioner such reasonable compensation as the circumstances of
the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires.

xxx ________________________________________ xxx _________________________________xxx

RULE 33

DEMURRER TO EVIDENCE

Rule 33 Section 1: Demurrer to evidence

After the plaintiff has completed the presentation of his evidence, the defendant may move for
dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. If his
motion is denied, he shall have the right to present evidence. If the motion is granted but on appeal the
order of dismissal is reversed he shall be deemed to have waived the right to present evidence

Demurer to evidence vs. Judgment on the pleadings

It is in the sense that it is rendered by a court after the case has undergone a one sided hearing.
If we compare judgment on demurer to evidence to a judgment on the pleadings, in judgment on the

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pleadings, there are no issues presented at all by the pleadings. In demurrer to evidence there are issues
presented. In fact, the court has tried the case, the court has received the evidence by the plaintiff in
chief. The court has given the plaintiff a chance to present his evidence and to prove his claim.

One sided trial in demurrer to evidence

If we are going to follow Rule 30, after the plaintiff has presented his evidence, the court will
give the defendant now the opportunity to prove his defense. Instead of the defendant presenting
evidence to prove his defenses, the defendant will ask the court to dismiss the complaint, because the
plaintiff has failed to prove his claim with the quantum of evidence required by law and in civil cases, its
just preponderance of evidence.

So there is really a trial in demurrer to evidence although it is not the trial that envisioned in
Rule 30. It is a one-sided trial. It is only the plaintiff who presents his evidence but after presentation of
evidence the defendant believes that the evidence so presented is not enough to demonstrate the
validity the truth of the plaintiffs complaint.

Motion on demurrer to evidence or motion for dismissal of action is different from a motion to
dismiss under Rule 16

The defendant will be filing a motion to dismiss. That is, the motion is usually called motion on
demurrer to evidence. Sometimes the defendant will call his motion simply as motion for dismissal of
action. If the defendant calls his motion simply as a motion for dismissal of action, this should be
differentiated from a motion to dismiss under Rule 16. In Rule 16 as we have learned, the motion to
dismiss is presented by the defending party before he even files an answer. In demurrer to evidence, the
defendant has filed an answer, in fact the case has undergone presumably in fact the case has been
tried by the court up to the point where the plaintiff has submitted his evidence in chief.

Insufficiency of evidence is the only ground available under Rule 33

If the defendant believes that the evidence presented by the plaintiff is insufficient this is his
remedy. He can ask the court to dismiss the case for insufficiency of evidence. This is the only ground
which could be used to justify a motion for judgment on demurrer to evidence insufficiency or
inadequacy of the evidence submitted by the plaintiff.

Since this is just any other motion, the court will either grant or deny the defendants motion. If
the court denies the motion the defendant does not suffer any injury. The defendant will still be given a
chance to present his own evidence. And after the termination of the court will now render a decision. If
the court renders a decision after denying the defendants motion for demurrer to evidence, the decision
to be rendered by the court is no longer a judgment on demurrer to evidence. It is an ordinary judgment
rendered by the court after the plaintiff and the defendant have presented their respective evidence.

Defendant will lose the opportunity to present his evidence if appellate court reverse the decision of
the trial court dismissing the complaint under Rule 33
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 If however the court grants the defendants motion for dismissal based on insufficiency of
plaintiffs evidence, do we consider the dismissal as a final order? The answer is YES, it is a final order, it
is a judgment on the merits. If the court renders judgment on demurrer to evidence, that means to say
that the plaintiff has lost the case. The defendant has won. So if theres anybody who should be
interested in assailing the judgment on demurrer to evidence, it is the plaintiff who could go up to a
higher court. If the plaintiff decides to appeal, he could go up of course to the Court of Appeals, or to the
Supreme Court as the case maybe. Usually the appeal is to the Court of Appeals.

The Court of Appeals will now review the case based purely on the evidence presented by the
plaintiff because the defendant has not presented any evidence at all. If the Court of Appeals agrees
with the trial court, the Court of Appeals will simply affirm the ruling of the trial court and the Court of
Appeals will also render its own decision affirming the judgment of the trial court, and affirming the
dismissal of the case.

The problem arises when the Court of Appeals disagrees with the trial court, if the trial court,
after evaluating the evidence arrives at the conclusion that the evidence presented by the plaintiff is
adequate, the problems is will the Court of Appeals return the case to the trial court or will the Court of
Appeals simply render a decision reversing the judgment of the trial court? The Rules does not allow the
Court of Appeals to return the case to the trial court for further proceedings. The Court of Appeals is
required to render its own judgment reversing the decision of the Court of Appeals.

This procedure very clearly indicates that the defendant will be prejudiced. The defendant will
lose opportunity to present his evidence in support of his defense. In other words when the defendant
avails of a demurrer to evidence he assumes the risk that if the matter is later on appealed to the Court
of Appeals, and the Court of Appeals does not affirm the judgment of the trial court, the defendant
would have lost his opportunity to present his own evidence.

Demurrer to evidence in a civil case vs. demurrer to evidence in criminal case

Well the implication is that, there are really differences between demurrer to evidence in a civil
case and demurrer to evidence in a criminal case.

If you are going to read also the pertinent provisions on criminal procedure, demurrer to
evidence is available also to the accused after the prosecution has rested. But the first distinction
between demurrer in this two cases is that in criminal case, if the defendant wants to preserve his right
to present evidence before the trial court. he must ask permission from the trial court before filing a
motion for judgment on demurrer to evidence. if in this criminal case the accused simply goes ahead
and files this motion for demurrer to evidence without first asking permission from the court and the
court denies his motion, he would lose the opportunity to present his evidence before the trial court.

In the civil case prior leave of court is not necessary before the defendant could avail of
demurrer to evidence. In a civil case, if the defendant files demurrer to evidence and it is denied by the
court, the defendant can still present his evidence before the trial court.

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 Another difference between demurrer in civil and criminal case, is that in a civil case, demurrer
to evidence is always the product of a motion coming from a defendant. There is a need for a correlative
motion from the defendant. In a criminal case, the court can render a judgment on demurrer to
evidence motu proprio, that is, on its own. If the court in a criminal case believes that the evidence for
the prosecution is not adequate. It does not prove beyond reasonable doubt the guilt of the accused,
even without a correlative motion from the accused, the court can render this judgment.

Another distinction lies when the courts has finally resolved this demurrer to evidence. In a civil
case if the court dismisses the complaint for insufficiency of the plaintiffs evidence the plaintiff can
always appeal, the plaintiff can challenge the decision of the trial court. In a criminal case, a judgment
on demurrer to evidence cannot be assailed by appeal on the part of the prosecution because of the
principle against double jeopardy. A judgment on demurrer to evidence in a criminal case is a judgment
of acquittal and we all know that a judgment of acquittal is not appealable. It is immediate and
executory.

COMMENT:

DEMURRER TO EVIDENCE is a motion to dismiss based on the ground of insufficiency of evidence

and is presented after the plaintiff rests his case.

When can we say that the plaintiff already rested its case? After the completion of the presentation of
his evidence (Riano, Civil Procedure, 2009 Edition)

Nature: There is only one-sided trial, i.e. it is only the plaintiff who has presented evidence

Purpose: To discourage prolonged litigations

Distinction Demurrer to Evidence from Motion to Dismiss (Rule 16)

Demurrer to Evidence

1. It is presented after the plaintiff rested his case;

2. The ground is based on insufficiency of evidence;

3. If the motion is denied, the defendant may present his evidence;

4. If the motion is granted, the complaint is dismissed. The remedy of the plaintiff is APPEAL.

Motion to Dismiss

1. Presented before a responsive pleading (answer) is made by the defendant;

2. It may be based on any of those enumerated in Rule 16;

3. If the motion to dismiss is denied, the defendant may file his responsive pleading;

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 4. If the motion to dismiss is granted, the complaint is dismissed and depending on the ground, the
complaint may be re-filed.

Two scenarios

Motion Denied

1. Movant shall have the right to present his evidence;

2. Denial is INTERLOCUTORY. (Sec. 1 Rule 36 (That judgment should state clearly and distinctly
the facts and the law on which it is based), will not apply. The denial is NOT appealable.

Motion Granted But Reversed on Appeal

1. Movant is deemed to have waived his right to present evidence. The decision of the appellate
court will be based only on the evidence of the plaintiff as the defendant loses his right to have
case remanded for reception of his evidence.

2. Order of the court is an ADJUDICATION ON THE MERITS. Hence, the requirement in Sec. 1
Rule 36 should be complied with.

Civil Cases

1. Defendant need not ask for leave of court;

2. If the court finds plaintiffs evidence insufficient it will grant the demurrer by dismissing the
complaint;

3. The judgment of dismissal is appealable. If plaintiff appeals and judgment is reversed by the
appellate court, it will decide the case on the basis of the plaintiffs evidence with the
consequence that the defendant already loses his right to present evidence; there is no res
judicata in dismissal to demurrer.

4. If court denies the demurrer; defendant will present his evidence;

Criminal Cases

1. May be filed with or without leave of court. Leave of court is necessary so that the accused could
present his evidence if the demurrer is denied.

2. If the court finds the prosecutions evidence insufficient, it will grant the demurrer by rendering
judgment acquitting the accused. Judgment of acquittal is not appealable; double jeopardy sets-in.

3. Judgment of acquittal is not appealable; double jeopardy sets-in.

4. If court denies the demurrer; If demurrer was with leave, accused may present his evidence; If
demurrer was without leave, accused can no longer present his evidence and submits the case for
decision based on the prosecutions evidence

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Judgment on Demurrer to Evidence is 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
and the law on the matter, plaintiff has not shown any right to relief.

Note: The requirement under this Rule would apply if the demurrer is granted, for in this event, there
would in fact be adjudication upon the merits of the case, leaving nothing more to be done (Nepomuceno
vs. COMELEC, G.R. No. L-60601, Dec. 29, 1983)

The granting of judgment on demurrer to evidence is correctible by a writ of error (appeal); certiorari will
not lie unless there is grave abuse of discretion.

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RULE 34

JUDGMENT ON THE PLEADING

Judgment on the Pleadings is a judgment rendered by the court if the answer fails to tender an issue, or
otherwise admits the material allegations of the adverse partys pleading. It will NOT apply when NO
answer is filed. It is rendered without a trial, or even without a pre-trial.

An answer fails to tender an issue when the material allegations of the other party are admitted or not
specifically denied by the pleader.

The judgment is based exclusively upon the allegations appearing in the pleadings if the parties and the
annexes thereto, if any, without consideration of any evidence aliunde.

Rule 34 Section 1: Judgment on the pleading

Where an answer fails to tender an issue, or otherwise admits the material allegations of the
adverse partys pleading, the court may, on motion of that party, direct judgment on such pleading.
However, in actions for declaration of nullity or annulment of marriage or for legal separation, the
material facts alleged in the complaint shall always be proved.

A judgment on the pleadings for instance is rendered without trial, even without pre-trial for
that matter. It is unique in the sense that after the filing of the respective pleadings by the parties, the
court can immediately render validly this decision. In other words the court does not hold pre-trial, the
court does not conduct a trial. And these reason why the court can render this judgment right away is
because the pleadings do not present any issue at all for trial. Or the answer filed by the defendant
admits the essential and the material allegations in the complaint.

For instance, if the plaintiff, a creditor files for the recovery of a defaulted loan, and the
defendant debtor files an answer. And in the answer he tells the court: I admit I owe the plaintiff this

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much. I admit I have not paid him. There is no issue at all presented by the defendant in his answer.
There is no use for the court to schedule even a pre trial or a trial.

Supposing that in the same situation, the defendant files an answer, but in the answer the
defendant tells the court: I deny that I owe the plaintiff the loan alleged to have been obtained by me.
I deny therefore that I am liable to pay any obligation in favor of the plaintiff. Can the court still render
a judgment on the pleadings? The answer is YES because although there is denial contained in the
answer, the denial is not a specific denial. It is just a general denial. And we learned that sometime ago
that general denial is in procedure an admission of all the material allegations in the complaint. When all
the material allegations in the complaint are admitted by reason of the submission of an answer with a
general denial, the recourse of the court is to render a judgment on the pleadings.

So a judgment on the pleading is unique in the sense that it is rendered by a court without
conducting a trial or even without conducting a pre-trial. And the reason which compels a court to
render this kind of a judgment is because the pleadings do not submit to the court any issue for trial.

There must first be an answer in order to avail Rule 34

In a judgment on the pleadings, do we then assume that the defendant has responded, that is
that he has filed an answer? Well the answer is YES. If the defendant has not filed an answer, judgment
on the pleadings is not proper. If the defendant has not filed an answer, the appropriate judgment that
could be rendered by the court is a judgment by default. So a judgment on the pleadings assumes that
the defendant has filed an answer, but the answer filed by the defendant does not tender an issue or
has otherwise admitted the allegations contained in the complaint.

COMMENT:

A Judgment on the pleadings must be on motion of the claimant. However, if at the pre-trial the court
finds that a judgment on the pleadings is proper, it may render such judgment motu proprio.

One who prays for judgment on the pleadings without offering proof as to the truth of his own
allegations and without giving the opposing party an opportunity to introduce evidence, must be
understood to ADMIT all MATERIAL and RELEVANT ALLEGATIONS of the opposing party
and to rest his motion for judgment on those allegations taken together with such of his own as
are admitted in the pleadings (Falcasantos vs. How Suy Ching, GR. No. L4299, May 29, 1952)

Allegation not deemed admitted by filing of judgment on the pleadings:

1. Irrelevant allegations;

2. Immaterial allegations;

3. Allegations of damages in the complaint.

Grounds for judgment of the Pleadings

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 1. The answer fails to tender an issue because of:

a. General denial of the material allegations of the complaint;

b. Insufficient denial of the material allegations of the complaint; OR

2. The answer admits material allegations of the adverse partys pleading.

Note: By moving for judgment on the pleadings, plaintiff waives his claim for unliquidated damages.
Claim for such damages must be alleged and proved.

No Judgment on the Pleading in Actions for:

1. Declaration of nullity of marriage;

2. Annulment of marriage; and

3. Legal Separation

Distinction Motion to Dismiss from Motion for judgment on the pleadings

Motion to Dismiss

1. Filed by a defendant to a complaint, counterclaim, cross-claim, or 3rd party complaint.

Motion for judgment on the pleadings

1. Filed by the plaintiff if the answer fails to tender an issue.

Note: If the complaint states no cause of action, a motion to dismiss should be filed and not a motion for
judgment on the pleadings.

A motion for Judgment on the Pleadings is one that is considered ex parte, because upon particular facts
thus, presented, the plaintiff is entitled to judgment, or motu proprio under Rule 18 (2g) (Dino vs.
Valencia, G.R. No. L-43886 July 19, 1989)

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RULE 35

SUMMARY JUDGEMENT

SUMMARY JUDGMENT also called accelerated judgment is a judgment rendered by a court without a
trial if it is clear that there exist NO GENUINE ISSUE or controversy as to any material fact, EXCEPT as
to the amount of damages.

Genuine Issue is an issue of fact which calls for the presentation of evidence as distinguished from an
issue which is a sham, fictitious, contrived, and patently unsubstantial so as not to constitute a genuine
issue for trial.

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An action for annulment of marriage cannot be decided by summary judgment proceeding (Roque vs.
Encarnacion, 95 Phil 543, 1954)

However, summary judgment are made specifically applicable to a special civil action for declaratory
relief ( Rule 63).

Rule 35 Section 1: Summary judgment for claimant

A party seeking to recover upon a claim, counter-claim, 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.

Partial Summary Judgment is merely and interlocutory order

Another special kind of a judgment in the Rules is a summary judgment. A summary judgment
is not necessarily a judgment unlike a judgment on the pleadings, or a judgment on demurrer to
evidence. A summary judgment that is only partial in character is not a judgment. It is only an
interlocutory order. So if for a summary judgment to be treated as a summary judgment under Rule 36,
it must be a complete summary judgment. It resolves all the issues presented to the court resolution. If
the summary judgment decides only a part of the issues submitted to the court, it is simply a partial
summary judgment and it is treated as a mere interlocutory order.

In other words if that summary judgment is treated as a mere interlocutory order, it cannot be
the subject of an appeal. It cannot be challenged by an appeal by the defeated party.

Rule 35 Section 2: Summary judgment for defending party

A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is

sought may, at anytime, move with supporting affidavits, depositions or admissions for a summary
judgment in his favor as to all or any part thereof.

A summary judgment also contemplates a situation where the movant could be the plaintiff or
the defendant, so to differentiate summary judgment from demurrer to evidence or judgment on the
pleadings, a judgment on the pleadings is upon the motion of the plaintiff. It is not on the motion of the
defendant. A judgment on demurrer to evidence is upon the motion of the defendant. Summary
judgment could be upon the motion of the plaintiff, it could be upon the motion of the defendant.

When the summary judgment is moved by plaintiff, the assumption is that the answer of the
defendant has already been filed. So before the defendant files an answer summary judgment on the
part of the plaintiff is not proper. But when the motion for summary judgment comes from the initiative
of the defendant, the rule does not require that the defendant must have already filed his answer. So
even before the defendant files his answer, he could already file a motion for summary judgment.

COMMENT:

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Who can file:

1. Plaintiff (Includes a Claimant in a Counterclaim or Cross Claim or Obtaining Declaratory

Relief): May file the motion at any time after the answer has been served, and therefore, must
wait until the issues have been joined.

2. Defendant (Includes a defendant in a counter-claim, cross-claim or in a Declaratory Relief): He

can move for summary judgment at any time.

Test: Whether or not the pleadings, affidavits and exhibits in support of the motion are sufficient to
overcome the opposing papers and to justify the finding that, as a matter of law, there is no defense to the
action or claim is clearly meritorious (Estrada vs. Consolacion, et al., G.R. No. L-40948, June 29, 1976)

xxx ________________________________________ xxx _________________________________xxx

Rule 35 Section 3: Motion and proceedings thereon

The motion shall be served at least ten (10) days before the time specified for the hearing. The
adverse party may serve opposing affidavits, depositions, or admissions at least (3) days before the
hearing. After the hearing, the judgment sought shall be rendered forthwith if the pleadings, supporting
affidavits, depositions and admission on file, show that, except as to the amount of damages, there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of
law.

COMMENT:

The motion must also satisfy the requirements under Rule 15.

After hearing, the judgment shall be rendered if the pleadings, supporting affidavits depositions, and
admissions on file, show that EXCEPT as to the amount of damages, there is no genuine issue.

xxx ________________________________________ xxx _________________________________xxx

Rule 35 Section 4: Case not fully adjudicated on motion

If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs
sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and
the evidence before it and by interrogating counsel shall ascertain what material fact exist without
substantial controversy and what are actually and in good faith controverted. It shall thereupon make an
order specifying the facts that appear without substantial controversy, including the extent to which the
amount of damages or other relief is not in controversy, and directing such further in the action as are
just. The facts so specified shall be deemed established, and the trial shall be conducted on the
controverted facts accordingly.

COMMENT:

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This authorizes rendition of partial summary judgment but such is interlocutory in nature and is not a final
and appealable judgment (Guevarra vs. CA, G.R. No. L-49017, Aug. 30, 1983)

xxx ________________________________________ xxx _________________________________xxx

Rule 35 Section 5: Form of affidavits and supporting papers

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the
affidavit shall be attached thereto or served therewith.

In a judgment on the pleadings, we said a while ago that this motion is proper where the case
does not tender an issue, there is no issue at all to be tried by the court. In demurrer to evidence, is
there an issue to be tried by the court? Well of course there is an issue. There is a trial conducted by the
court where the plaintiff has already presented his evidence. In summary judgment, is there also an
issue presented in the pleadings or in the pre-trial order? The answer is YES. In summary judgment there
is an issue presented in the pleadings or in the pre-trial order.

If there is an issue presented in the pre-trial order or in the pleadings, why does not the court
conduct a regular trial under Rule 30? The court foregoes with the regular trial even if there is an issue
presented in the pleadings, or in the pre-trial order because the court is convinced that the issue is not
genuine issue. There is an issue in summary judgment but that issue turns out not to be a genuine issue.
So it is up to the movant to prove to the court that this issue is not a genuine issue. Since it is the burden
of the movant to show that the issue is not genuine, this would necessitate presentation of evidence for
the purpose simply of demonstrating that the issue is not a genuine case.

Will the presentation of evidence for the purpose of proving that the issue is not genuine be
held in a regular trial like the one envisioned in Rule 30? Well the answer is NO. The presentation of
evidence for the sole purpose of proving that the issue is not genuine will also be conducted in summary
hearing. It could be proven by affidavits, or by depositions or by any other evidence gathered by virtue
of discovery proceedings. What is important here is that the court does not conduct a trial as
contemplated in Rule 30. There is no trial where the plaintiff presents evidence and later on the
defendant is given a chance also to prove his defenses. The trial in summary judgment is a summary trial
where the only evidence to be presented are affidavits, depositions or other matters gathered through
the use of the modes of discovery.

Is there therefor a need for a motion from either the plaintiff or the defendant before the court
could render validly a summary judgment? The answer is YES. There must be a motion filed by either the
plaintiff or the defendant. And unlike the motion on judgment on the pleadings, or the motion in
demurrer to evidence, there is a 10-day period, prior notice to be given to the adverse party. In
summary judgment, the movant must serve a copy of his motion upon the adverse party at least 10-
days before the date set for the hearing of that motion for summary judgment.

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Motion for judgment on the pleadings must comply with the requirements of Rule 14

How about in a motion for judgment on the pleadings, do we require any prior notice to the
adverse party? The answer is YES. Since there is a motion also for judgment on the pleadings, that
motion must satisfy the requirements of motions in general, that is in Rule 14. That is, there must be
prior 3-day notice upon the adverse party. This is also the rule that governs a motion for judgment or
demurrer to evidence, there must be a prior-3day period notice upon the adverse party.

Can the court render a judgment on the pleadings, or a summary judgment even without any prior
motion served by the interested party? Or should the court wait for a correlative motion before it
could validly render a judgment on the pleadings or a summary judgment?

If your are going to read Rule 18, that is in pre-trial, Rule 18 seems to recognize the possibility
that the court render a judgment on the pleadings or a summary judgment.

Judgment upon a compromise

There is another type of special judgment not treated independently by separate rules in the
Rules of Court in a way that the Rules treat judgment on the pleadings, summary judgment, or judgment
on demurrer to evidence. and one of these judgments is a judgment upon a compromise.

Why is a judgment upon a compromise special, and what is the reason why there is no separate
rule governing a judgment on a compromise? Is it less important for instance than a judgment on the
pleadings, or summary judgment, or judgment on demurrer to evidence? The reason why the Reason
did not incorporate any special rule governing a judgment on a compromise, is because a judgment on a
compromise is already the subject of the Civil Code.

Title 14 of the civil code speaks about compromise and arbitration. And the civil code already
provides for the consequences of a judgment based upon a compromise.

For instance, we learned that a judgment on compromise is immediately in executory. Meaning

to say, that upon the signing of the compromise agreement it is final and executory. The source of that
ruling is the Civil Code. The Civil code expressly provides that once the parties enter into a compromise,
it is a contract between the parties, and it has the effect of res judicata. So the statement that a
judgment based upon a compromise is immediately executory is not the product of jurisprudence. It is a
part of substantive law. It is a part of substantive law. It is a part of substantive because a compromise is
considered as a contract between the parties to the litigation.

Can the parties submit a compromise agreement at any stage of the case? Can the parties
submit a compromise even before a pre-trial? During the trial? After the trial judge has decided the
case? If the case is already on appeal? Or even after the Supreme Court has decided the case? Well the
answer is YES. This is precisely the feature of compromise agreements, that a judgment based upon the
compromise which is not contained in other kinds of judgments. Since a compromise is treated by the
Civil Code as a contract between the parties, the contending parties can decide to put an end to the
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litigation at anytime they feel like doing so. So during the trial they can put an end to the trial by simply
entering into a compromise agreement. Even if the trial court has rendered a decision, and this decision
has become final and executory the parties can still enter into a compromise agreement, which will be
directly in conflict with the tenor of the final and executory judgment. If the case is brought on appeal to
the Supreme Court, and the Supreme Court has rendered its own decision, the decision of the Supreme
Court has also become final and executory, can the parties still enter into a compromise agreement?
The answer is YES. Even if the compromise agreement directly conflicts the decision of the Supreme
Court? Again the answer is YES, because compromise is a contract between the parties. There is nothing
which will stop the contending parties from entering into a compromise agreement to put an end to
their differences even after a judgment has been rendered, whether by the trial, by the Court of Appeals
or the Supreme Court.

If the Supreme Court has already rendered a judgment that adjudicates on the rights and
obligations of the parties, and the parties are allowed to enter into a compromise that directly conflicts
with the decision of the Supreme Court, which is going to prevail? Well it is the compromise agreement
that will prevail. In other words, the parties can always change a decision rendered by a court of justice,
even if that decision has become final and executory by the simple expedient of entering into a
compromise agreement.

What happens to the final and executory judgment if it is inconsistent if it is in direct conflict
with the compromise agreement? Well that final and executory judgment will be considered as having
been novated. This is the feature of a complete freedom to enter into a compromise at anytime for the
purpose of putting an end to the litigation. And when we say for the purpose of putting an end to the
litigation for the purpose of setting amicably their differences, even after the judgment of a court of
justice has become final and executory.

Since the law considers a judgment based upon a compromise as final and executory, can the
parties simply enter into a compromise agreement and then agree not to submit it to the court for the
approval of the court? Again the answer is YES. Under the Civil Code, a compromise agreement is a
contract and for the purpose of validity of a contract, there is no need for prior court approval. A
contract is the law between the parties. Even if this compromise stems from a litigation between the
parties, there is no need for the parties to a compromise to submit their agreement to the court for
approval. Even if a court does not render a judgment based on the compromise, that compromise would
still be valid, because it is treated as a contract by the Civil Code.

Is there any advantage if the parties enter into a compromise and then submit to the court that
compromise agreement so that the court could render a judgment called judgment based upon a
compromise? Procedurally there is of course an advantage if a compromise agreement is entered into
but it is not submitted to the court for approval, in case of breach of any of the conditions of the
compromise agreement the innocent party cannot ask for execution from the court because the court is
not aware of the existence of a compromise agreement. The court does not render judgment based
upon the compromise. So if there is a compromise agreement not submitted to the court and not the
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basis of a judgment, in case of breach the remedy of the innocent party is to file another complaint for
the enforcement of that compromise agreement.

So the procedural advantage of a compromise agreement upon which a judgment is based is

very clear. If there is a breach of any of the conditions of the judgment approved by the court, the
innocent party can always go to court and ask the court for the execution of the judgment under Rule
39. Execution is possible because there is a judgment rendered by the court and that judgment is
immediately executory.

Given that the Civil Code considers a compromise agreement approved by the court or a
compromise agreement upon which a judgment has been rendered by the court is based as immediately
executory and res judicata does it mean to say that the parties are deprived of any remedy to assail the
judgment based upon a compromise? The civil code itself says that a compromise may still be voidable if
there is fraud, intimidation, violence, or falsity of documents involved in the compromise agreement. So
the Civil Code recognizes the possibility that a compromise could be voidable contract.

Assailing a Judgment based upon a compromise ( see Rule 41 Section 1 [e])

In order to implement these provisions of the Civil Code, the 1997 Rules in Rule 41 have come
out with a remedy available to a compromising litigant that is to assail a judgment based upon a
compromise. The remedy suggested in Rule 41 when there is a judgment based upon a compromise, is
for this party to file a motion to set aside the judgment based upon a compromise by reason of fraud, or
violence, or intimidation, that is any of the factors which vitiates consent under the Civil Code. So
although we have a principle saying that a judgment based upon a compromise is immediately
executory, there is an equivalent provision in Rule 41 which suggest that one of the contracting parties
to that compromise can file a motion to set aside the judgment because of fraud, or violence or
intimidation.

Since Rule 41 speaks about a motion the court just like in any other motion, will have to resolve
it by granting or denying that motion, if the court grants the motion then the compromise agreement
will have to be set aside. The judgment based upon a compromise will also have to be set aside. But in
certain court decisions, the Supreme Court said that in a compromise agreement approved by the court,
if one of the parties wishes to assail the compromise agreement, that party will see to it that the motion
is filed for the purpose of assailing the judgment based upon a compromise and also the compromise
agreement itself. It is not enough for one of the parties to simply to file a motion to set aside the
judgment. That motion should also seek to set aside the compromise agreement itself.

If that motion is denied, this time can the interested appeal from his motion for the setting aside
of the compromise agreement and the judgment based upon a compromise? Rule 41 gives us again the
proper remedy. The denial of a motion to set aside a compromise agreement and the judgment based
upon a compromise is not appealable. Under Rule 41 the remedy is a petition for certiorari under Rule
65. So if after the denial of the motion to set aside the compromise agreement, the interested party files
an appeal making use of the modes of appeal, the appeal will be dismissed because the remedy under
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Rule 41 is not appeal but a petition for certiorari under Rule 65. That is why time and again I keep on
reminding you that you should memorize the instances in Rule 41 where appeal is not a remedy
recognized by the Rules although the order that is going to be assailed is a final order.

The consequences of availing of a wrong remedy could prove to be fatal to the losing party. We
all know that if the remedy is appeal for instance, but then the losing party neglects to appeal and
thereafter he files a petition for certiorari under Rule 65, the petition for certiorari will have to be
dismissed because it is also fundamental in procedure that certiorari cannot be used as a substitute for
appeal in Rule 41, if the rule says the remedy is not appeal but a petition under Rule 65, an appeal
brought under Section 1 of Rule 41 will not allow the appellate court to review the order or decision
rendered by the trial court.

Clarificatory judgments; memorandum decision; judgment by confession (cognivit actionem and

relicta verificatione)

We continue with judgments. We mentioned that the classification of judgments is scattered in

the Rules of Court. Aside from those mentioned in 36, 35, 34, and 32 there are also judgments which are
expressly recognized in Rule 41 and these judgments are judgment upon a compromise, judgment by
consent and judgment by confession. In Rule 39 we are going to meet another kind of judgment and it
is called a Clarificatory judgment. And then in appeals, we are going to meet another kind of a judgment
which is expressly recognized not only in the Rules but also in BP 129, and we call this judgment as a
memorandum decision. This is a judgment that is recognized in BP 129 as well as the provisions in the
Rules of appeals.

Now about two years ago, the examiner in Remedial Law required the candidates to explain a
judgment called cognivit actionem and a judgment relicta verificatione. These are judgment by
confession. So a judgment relicta verificacionem or cognivit accionem are judgment by confession. And
in a judgment by confession, the defendant expressly admits his liability although not necessarily in an
answer. If there is no answer, the usual procedure is for the plaintiff to ask for an order declaring the
defendant in default and thereafter the judgment to be rendered by the court is called a judgment by
default. But if the defendant appears in court and tells the court I admit liability I confess that the
allegations contained in the complaint are true, then the court can render what we call a judgment by
consent. But if he files an answer and he contests the allegations contained in the complaint, and later
on he changes his mind and he tells the court he is admitting liability after all, the court could also
render a judgment by consent.

You will notice that a judgment by consent is upon the initiative of the defending party. He
admits expressly to the court his liability in favor of the plaintiff. It is almost similar to a judgment upon a
compromise in the sense that in a judgment based upon a compromise, the terms and conditions of a
compromise agreement are agreed upon by the plaintiff and the defendant. For this reason, the Rules
do not allow an appeal to be taken when a judgment is a judgment based upon a compromise, a

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judgment by consent, or a judgment by confession. This is clearly, provided in Rule 41. There is no
appeal from a judgment upon a compromise, judgment upon confession, or judgment by consent.

But Rule 41 gives a remedy to the party who feels that the judgment by consent, or the
judgment by confession or judgment upon compromise is unfair to him. And the remedy suggested in
Rule 41 is the filing of a motion to set aside a judgment based upon grounds that vitiate consent, that is
fraud, violence, intimidation, and so on and so forth. These grounds are those provided for in the Civil
Code. The grounds that could vitiate consent.

COMMENT:

Requisites:

1. Based on personal knowledge;

2. Set forth facts as would be admissible in evidence;

3. Show affirmatively that affiant is competent to testify on matters stated therein; and

4. Certified copies of all papers must be attached thereto and served on opposing party.

xxx ________________________________________ xxx _________________________________xxx

Rule 35 Section 6: Affidavits in bad faith

Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to
this Rule are presented in bad faith, or solely for the purpose of delay, the court shall, forthwith order
the offending party or counsel to pay to the other party the amount of the reasonable expenses which
the filing of the affidavits caused him to incur, including attorneys fees. It may, after hearing, further
adjudge the offending party or counsel guilty of contempt.

COMMENT:

Sanctions:

1. Pay to the other party the amount of the reasonable expenses including attorneys fees; and

2. After hearing, adjudge the offending party or counsel guilty of contempt.

Bases of Summary Judgment

1. AFFIDAVITS made on personal knowledge;

2. DEPOSITIONS of the adverse party or third party under Rule 23;

3. ADMISSION of the adverse party under Rule 26; and

4. ANSWER to interrogatories under Rule 25. All intended to show that:

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 a. There is no genuine issue as to any material fact, except damages which must always be
proved; and

b. The movant is entitled to a judgment as a matter of law.

Even if the answer does tender an issue, and therefore a judgment on the pleadings is NOT
proper, a summary judgment may still be rendered if the issues tendered are NOT genuine, are
sham, fictitious, contrived, set-up in bad faith, and patently unsubstantial (Vergara vs. Suelto,
G.R. No. L-74766, December 21, 1987)

Distinction

Summary Judgment

1. Based on the pleadings, depositions, admission and affidavits;

2. Available to both plaintiff and defendant;

3. There is no genuine issue between the parties i.e. there may be issues but these are irrelevant;

4. 10-day notice is required;

5. May be interlocutory or on the merits;

6. If filed by plaintiff, it must be filed at any time after an answer is served; if filed by defendant
may be filed at any time before there is an answer.

Judgment on the pleadings

1. Based solely on the pleadings;

2. Generally available only to the plaintiff, unless the defendant presents counterclaim;

3. The answer fails to tender an issue or there is an admission of material allegations;

4. Three (3) day notice required.

5. On the merits;

6. There is already an answer.

Judgment by default (Rule 9)

1. Based on the complaint and evidence, if presentation is required;

2. Available to plaintiff;

3. No issue as no answer is filed by the defending party;

4. Three (3) day notice rule applies.

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 5. On the merits;

6. There is no answer filed.

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RULE 36

JUDGMENT, FINAL ORDERS AND ENTRY THEREOF

JUDGMENT is the final consideration and determination by a court of competent jurisdiction

regarding the rights or other matters submitted to it in an action or proceeding.

Parts of a judgment
Ratio
1. The opinion of the court contains the finding of facts and conclusions of law; decidendi

2. The disposition of the case the final and actual disposition of the rights litigated (the dispositive
part); and Fallo

3. Signature of the judge

Rule 36 Section 1: Rendition of Judgment and Final Orders

A judgment or final order determining the merits of the case shall be in writing personally and
directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based
signed by him, and filed with the clerk of the court.

The essential elements of a judgment to be rendered by a court are in Rule 36. The essential in
Rule 36 are just reiterations of constitutional provisions for the validity of judgment. In other words, if
the judgment rendered by a court does not meet the essentials enumerated in Rule 36, which are also
the essentials mentioned in the Constitution, that judgment is null and void, and if the judgment is null
and void, it could be the subject of a collateral attack.

Essential requisites of a valid judgment

If the judgment complies with all the essentials in Rule 36, that is, in writing, prepared
personally and directly by the judge, contains his findings of facts and his findings of law, signed by the
judge and served and filed with the clerk of court, then the judgment is a valid judgment. Therefore if it
is a valid judgment, it cannot be attacked collaterally it can be attacked directly, not by reason of lack of
essentials in Rule 36, but by reason of some external factors like fraud, accident, mistakes or excusable
negligence.

Who is the judge referred to in Rule 36?

In 1974, that is before the efficacy of the 1997 Rules on Civil Actions, this question arose: Rule
36 says that the decision must be prepared directly and personally by the judge and signed by him, filed
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with clerk of court. The issue was who was the judge referred to in Rule 36? You see if you look at our
judiciary pragmatically, if a judge is appointed to a certain sale, he will not stay there forever until he
reaches the age of 70. Just like any other professional, a judge also expects to be promoted to a higher
position. So if a judge is appointed as the RTC judge of Pangasinan, we can expect that during his stay in
judiciary, he can pray or he can expect that he will be appointed to the Court of Appeals or he can reach
the Supreme Court or he could be appointed as a commissioner of the Commission on Elections. So
there could be promotions in other words. The judge cannot be expected to be staying forever as a
judge of the Regional Trial Court in Pangasinan. So several instances could occur which will necessitate a
ruling on the identity of the judge who could render validly a decision under Rule 36.

Can a judge decide a case which was fully heard by him in a sala where he was previously assigned?

As in the 1974 litigation, a judge appointed to preside over a branch in Bulacan, was promoted
in the sense that he was transferred to the Court of First instance of Manila. Well the Manila court and
the Bulacan court are coordinate courts so in reality, there is no promotion, but in the judiciary if a judge
is assigned in Manila, we consider that a promotion because he is nearer now to the court of appeals
and the Supreme Court physically, isnt it?

Now when this Bulacan judge was transferred to Manila, his transfer was of course was
permanent. So he was given an assignment permanently as judge of the Manila court. While he was
already holding office in Manila, he decided a case which he left behind in Bulacan. In other words, he
wrote the decision here in Manila, and then sent the decision to the branch clerk of court in Bulacan
court. that was the issue raised in the case. Did this judge who presided over the trial of the Bulacan
case possess authority to decide the Bulacan case, although at the time he rendered the decision he was
already judge of the Manila court? Did he still have that power?

That question was easily resolved because under the provisions of the old judiciary act, RA 296,
it was clearly provided in the law that a trial judge who is permanently transferred from one court to
coordinate court can validly decide a case that he has left behind as long as he has fully heard the case.
In other words, the trials conducted entirely before this presiding judge. RA 296 also provided that if the
transferred judge only heard the case in part, and the other portion was heard by the new judge, the
parties could still agree between themselves to submit to the old judge the case for decision.

So when it comes to a situation where a transferred judge could decide a case fully heard by him
in a sala where he was previously assigned, there was no question under the provisions of the old
judiciary act that he had the authority to do so. the question that we have now is could we still follow
this doctrine given that our case was decided in 19745, that was before the efficacy of BP 129, the
Judiciary Reorganization Act? The answer is YES, we still follow that doctrine even if we now have as the
prevailing rule on jurisdiction BP 129. At the start of this program, we stated that BP 129 IS THE general
rule on jurisdiction of courts but it does not mean to say that the old judiciary act of 1946 has been
repealed. The old judiciary act RA 296 is still in force. It is still in force in so far as its provisions are not
conflict with BP 129. And if you go over the provisions of BP 129, this situation is not covered by any of

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the sections in BP 129 the authority of a trial judge to decide a case fully heard by him although at the
time of the rendition of the decision, he has already accepted a permanent assignment of a coordinate
court, meaning to say a transfer from one RTC to another RTC.

But RA 296 is also clear in saying that, if the RTC judge, instead of being transferred simply to
another RTC in Manila, is promoted to the Court of Appeals, then he has no authority to decide the case
that he has left behind in Bulacan, although he may fully heard this case in Bulacan.

If he has left the judiciary because he has resigned or is retired, he has no authority anymore to
render a decision in a case although this case has been fully heard by him. So this authority of the judge
to decide a case although he is not presiding over the sala anymore refers only to a situation where this
judge is transferred to a coordinate court. If he is transferred to a higher court or he leaves the judiciary
permanently, then he no longer possesses the authority to render a decision of a case tried by him in
full.

Are there judgments which are not strictly adjudication on the merits, but are considered as final
orders or judgment?

The essential of a judgment as embodied in Rule 36 should be met by any kind of decision
rendered by a court. There should be findings of fact, there should be conclusions of law. In other
words, the judgment must be one on the merits. Are there decisions or orders which do not need
necessarily the requirements in Rule 36 that is they are not strictly adjudication on the merits, but they
are considered as final orders or judgments? Well by way of exception, again the answer is YES, and we
have come across several of these instances, an order which is not strictly an adjudication upon the
merits but it is still a final order or judgment under Rule 36.

Some of these examples are given in Rule 17. An order of dismissal which becomes res judicata
because it is governed by the two dismissal rule will be considered an adjudication upon the merit,
although it is not strictly an adjudication upon the merit because it does not discuss the rights and
liabilities of the plaintiff and the defendant as presented in the pleadings. A dismissal by reason of nolle
prosequi or failure to prosecute is a final order or judgment under Rule 36. Although these orders may
not strictly comply with the requirements in 36, a dismissal under Rule 17 for failure of a plaintiff to
obey an order of a court, or a failure of the plaintiff to comply with the provisions of the Rules, they are
final orders or judgments under Rule 36. A final order of the court under Rule 18 dismissing the case for
failure of the plaintiff to appear during the pre-trial conference or to submit a pre-trial brief, strictly is
not an adjudication upon the merits by the law, it becomes an adjudication on the merits. Because it is,
under Rule 18, an adjudication upon the merits, it is res judicata between the parties.

So there are also exceptions to the general rule that we meet in Rule 36. There are instances
when an order is considered final and is therefore governed by Rule 36 even if there maybe no
adjudication strictly on the merits as contemplated in Rule 36.

COMMENT:

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Requisites of a valid judgment

1. The court or tribunal must be clothed with authority to hear and determine the matter before it;

2. The court must have jurisdiction over the parties and the subject matter;

3. The parties must have been given an opportunity to be heard;

4. The evidence must have been considered by the tribunal in deciding the case;

Formal Requisites:

5. It should be in writing, personally and directly prepared by the judge;

6. It must state clearly and distinctly the facts and the law on which it is based; and

7. It should contain a dispositive part and should be signed by the judge and filed with the clerk of
court.

General Rule: Where there is conflict between the dispositive portion or the fallo and the body of the
decision, the fallo controls. This rule rests on the theory that the fallo is the final order. However, when
the conclusion from the body of the decision is clear as to show that there was a mistake in the dispositive
portion, the body of the decision will prevail.

Kinds of Judgment

1. Judgment upon compromise;

It is one rendered by the court on the basis of a compromise agreement entered into between the
parties.

It is covered by Articles 2028 to 2046 of the New civil code.

Judgment upon a compromise cannot be entered into by counsel without the knowledge and
special authority of the client. It is immediately executory upon the signing of the compromise
agreement in the absence of a motion to set aside on the ground of fraud, mistake, etc. Hence, it
has the effect of res judicata. (World Machine Enterprises vs. IAC, G.R. No. 72019, Dec. 20,
1990)

The judgment is based upon the compromise agreement of the parties so long as the agreement is
not contrary to law;

The parties may submit to a compromise at any stage of the case, even if the judgment has
already become final and executory, even without approval of the court;

It cannot be annulled unless it is vitiated with error, deceit, violence or forgery of documents.
(Morales vs. Fontanos, 64 Phil. 19; Article 2038 Civil Code)

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 A compromise has the effect of res judicata upon the parties. Substantive law does not require a
court approval for the res judicata effect of a compromise agreement to attach.

Advantage of Approval of Court: the court could render a judgment based upon a compromise
and in case of breach of any conditions, the party may ask the court for Execution of Judgment
under Rule 39.

2. Judgment upon confession;

It is one rendered by the court when a party expressly agrees to the other partys claim or
knowledge the validity of the claim against him. (Natividad Vda. Natividad, 51 Phil. 613)

Two kinds of judgment by confession

1. Judgment by COGNIVIT ACTIONEM The defendant after service instead of entering

plea, acknowledged and confessed that the plaintiffs cause of action was just and rightful;

2. Judgment by CONFESSION RELICTA VERIFICATIONE After pleading and before

trial, the defendant both confessed the plaintiffs cause of action and withdrew or abandoned
his plea or other allegations, whereupon judgment was entered against him without
proceeding to trial.

Note: Remedy against judgment by consent, confession or compromise is to first file a MOTION TO
SET ASIDE, then if denied file the appropriate PETITION UNDER RULE 65 (Sec. 1 Rule 41)

3. Judgment upon the merits;

Is one that is rendered after consideration of the evidence submitted by the parties during the trial
of the case.

Note: There can be a judgment on the merits even if there is no trial. A ruling based on motion to
dismiss, without any trial or formal presentation of evidence, can still be a judgment on the merits
(Riano, Civil Procedure, 2009 Edition p.418)

4. Clarificatory judgment;

Is rendered to clarify an ambiguous judgment or one difficult to comply with;

Where the judgment is difficult to execute because of ambiguity in its terms, the remedy is to file
a motion for Clarificatory judgment and not to assail the judgment as void (Riano p. 405)

Distinction Amended or Clarified Judgment from Supplemental Decision

Amended or Clarified judgment

1. It is an entirely new decision and supersedes the original judgment;

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2. Court makes a thorough study of the original judgment and renders the amended and clarified
judgment only after considering all the factual and legal issues

Supplemental Decision

1. It does not supersede the original decision;

2. Serves to bolster or add to the original judgment;

5. Judgment non pro tunc (now for then);

Is a judgment intended to enter into record the acts which had already been done, but which do
not appear in the records (Lichauco vs. Tan Pho 51 Phil. 682). Its purpose is not to supply an
omitted action by the court but to enter into the record an action previously done but which was
not reflected in the record by reason of inadvertence or mistake.

6. Judgment sin perjuicio;

May refer to a dismissal of a case without prejudice to its being re-filed. It is one which contains
only the dispositive portion of the decision and reserves the making of findings of fact and
conclusion of law in a subsequent judgment. It does not state the facts and the law upon which it
is based. It is a void judgment.

7. Judgment by default (Sec. 3 Rule 9);

8. Judgment on the pleadings (Rule 34);

9. Summary judgment (Rule 35);

10. Several Judgment (Sec. 4, Rule 36);

11. Separate Judgment (Sec. 5, Rule 36);

12. Special Judgment (Sec. 11, Rule 39);

13. Judgment for specific acts (Sec. 10, Rule 39);

14. Judgment on demurrer to evidence (Rule 33);

15. Conditional judgment;

Is one wherein the effectivity of which depends upon the occurrence or non-occurrence of an
event. As a general rule, judgment of such kind, conditioned upon a contingency, are held to be
NULL and VOID. (Cu Unjieng y Hijos vs. Mabalacat Sugar Co., 70 Phil. 380)

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 16. Incomplete judgment;

Is one which leaves certain matters to be settled in a subsequent proceeding (Ignacio vs. Hilario,
76 Phil 605). There is a decision but there are still other matters to be incorporated later in such
decision.

17. Final Judgment;

18. Amended judgment;

19. Supplemental judgment.

Distinctions Judgment upon Compromise from Judgment by confession

Judgment upon compromise

1. The provisions and terms are settled and agreed upon by the parties to the action, and which is
entered in the record by the consent of the court;

2. The parties bargain and agree on the terms and conditions of theirs agreement. There is a mutual
or reciprocal concession.

Judgment by confession

1. An affirmative and voluntary act of the defendant himself. The court exercises a certain amount
of supervision over the entry of judgment.

2. It is unilateral which comes from the defendant himself who admits liability and accepts the
judgment to be rendered against him.

Promulgation refers to the process by which a decision is published, officially announced, made
known to the public or delivered to the clerk of court for filing, coupled with notice to the parties or their
counsel.

Memorandum Decision is a decision of the appellate court which adopts the findings and conclusion
of the trial court B.P. 129 provides that Every decision or final resolution of the court in appealed cases
shall clearly and distinctly state the findings of fact and the conclusions of law on which it is based, which
may be contained in the decision or final resolution itself, or adopted from those set forth in the decision,
order, or resolution appealed from.

The power to amend judgment is inherent to the court before judgment becomes final and
executory.

When Judgment becomes final

1. When the period for perfecting an appeal has lapsed;

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 2. When the sentence is partially or totally satisfied or served;

3. When the accused expressly waives in writing his right to appeal; and

4. When the accused applies for probation.

Effects of finality of Judgment

1. The prevailing party is entitled execution as a matter of right;

2. Immutability of judgment;

3. Res Judicata.

General Rule: After judgment has become final and executory, it becomes immutable and unalterable,
that is, it can no longer be modified.

Exceptions:

1. To make corrections of clerical errors, not substantial amendments, as by an amendment non pro
tunc;

2. To clarify ambiguity which is borne out by and justifiable in the context of the decision;

3. Where the judgment is void;

4. In judgment for support which can always be amended from time to time;

Rule: The validity of a judgment or order of a court cannot be collaterally attacked.

Exceptions:

1. Lack of jurisdiction; and

2. Irregularity of its entry apparent from the face of the record.

A judge permanently transferred to another COURT OF EQUAL JURISDICTION (coordinate

court) can render decision on a case in his former court which was TOTALLY HEARD by him
and submitted for decision, with the parties having argued the case (Valentin vs. Sta. Maria, G.R.
No. L-30158, Jan. 17, 1974)

Minute resolutions of the Supreme Court denying petition to review the decisions of the Court of
Appeals are not decisions within the requirement of Sec. 1, Rule 36. (Commercial Union Assn.
Co., Ltd. vs. Lepanto Consolidated Mining Co. G.R. No. 43342, Oct. 30, 1978)

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xxx ________________________________________ xxx _________________________________xxx

Rule 36 Section 2: Entry of judgments and final orders

If no appeal or motion for new trial or reconsideration is filed within the time provided in these
Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of
judgments. The date of finality of the judgment or final order shall be deemed to be the date of its
entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by
the clerk, with a certificate that such judgment or final order has become final and executory.

COMMENT:

The date of finality of the judgment or final order shall be deemed to be the date of its entry.

Illustration: When the lower court rendered judgment, the parties did not appeal nor file a motion for
new trial or reconsideration. Thus, the judgment become final and executory. Let us say that it became
final and executory on February 14, 2012. The clerk of court entered the same in the Book of Entries of
Judgment only on February 29, 2012. Based on the above rule, the date of entry (Feb. 29) retroacts to Feb.
14.

Note: Entry of judgment or final order assumes importance in reckoning some reglementary periods, such
as the 5-year period for execution by motion (Sec. 6, Rule 39) or the 6 month period for a petition for
relief (Sec. 3, Rule 38)

xxx ________________________________________ xxx _________________________________xxx

Rule 36 Section 3: Judgment for or against one or more of several parties

Judgment may be given for or against one or more several plaintiffs, and for or against one or
more several defendants. When justice so demands, the court may require the parties on each side to
file adversary pleadings as between themselves and determine their ultimate rights and obligations.

xxx ________________________________________ xxx _________________________________xxx

Rule 36 Section 4: Several judgment;

In an action against several defendants, the court may, when a several judgment is proper,
render judgment against one or more of them, leaving the action to proceed against the others.

COMMENT:

SEVERAL JUDGMENT 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.

Several judgment is PROPER where the liability of each part is clearly separable and distinct from his co-
parties such that the claims against each of them could have been the subject of separate suits, and the

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judgment for or against one of them will not necessarily affect the other. A several judgment is NOT
PROPER in action against solidary debtors (Fernandez vs. Sta.Maria, G.R. No. 160730, Dec. 10, 2004)

xxx ________________________________________ xxx _________________________________xxx

Rule 36 Section 5: Separate judgment; common element not appealable

When more than one claim for relief is presented in an action, the court, at any stage, upon a
determination of the issues material to a particular claim and all counterclaims arising out of the
transactions or occurrence which is the subject matter of claim, may render a separate judgment
disposing of such claim. The judgment shall terminate the action with respect to the claim so disposed of
and the action shall proceed as to the remaining claims. In case a separate judgment is rendered, the
court by order may stay its enforcement until the rendition of a subsequent judgment or judgments and
may prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose
favor the judgment is rendered.

There are several kinds of judgments in Rule 36 itself several judgment, separate judgment.
And the common elements of these judgments in Rule 36 is that generally they are not appealable,
although they are considered as judgment. They are not appealable because the judgment does not
entirely dispose of the whole litigation. After the rendition of this judgment, the court will still try the
other matter submitted for decision. So the judgments enumerated in Rule 36 several, separate
judgment generally are not appealable.

If the losing party desires to appeal from these judgment, the losing party must get permission
from the trial court to carry out this appeal. so what can the losing party do if he does not desire to
appeal? He has to wait until the court finally renders the other decisions that will dispose of the entirety
of the case.

Special Judgments

There are special kinds of judgments which deserve particular attention by the Rules, because
their rendition does not necessarily comply with the procedure outlined in the Rules of Court before a
court could render a judgment. And these are the judgment on demurrer to evidence, judgment on the
pleadings and summary judgments. They are all judgments except of course for summary judgment. It
may or may not be a judgment. But they are special in the sense that certain procedure that is followed
in other civil cases is not followed by the court in rendering judgment.

Reopening of a case

Before we go any further concerning these special kinds of judgments, we should discuss
another remedy which according to jurisprudence is not expressly recognized by the rules in civil cases.
And the remedy is called reopening of a case as a remedy in civil cases.

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 According to the Supreme Court, the remedy of reopening of a case is not expressly recognized
by the Rules of Court for civil cases. In fact the decision of the Supreme Court was quite sweeping it only
said that the remedy of reopening is not expressly recognized by the court it is a product of practice. It is
a product of jurisprudence. And since it is not expressly recognized by the Rules, we could not provide
for grounds upon which the reopening could be based, unlike in other remedies recognized by the Rules.
For instance, Rule 37 is a remedy recognized by the Rules, and because it is expressly recognized, there
are certain grounds that could be used to justify this remedy. When it comes to reopening as a remedy,
again what the Supreme court said is that, this is not one of the remedies expressly recognized by the
Rules. It is a product of practice and therefor we cannot expect to give definite reasons or justifications
for the use of reopening of a case as a remedy.

But the Supreme Court also said that reopening should be had before the court renders a
decision. So it occurs between the time when the parties have submitted their evidence up to the time
when the court render a decision, while the parties are still in the process of submitting to the court
their evidence, reopening is not available. It becomes available after the termination of the presentation
of evidence, and the court has directed that the case is now submitted for decision. So its not a short
period, it could be a long period at the end of the termination of the trial until the rendition of
judgment by the court. anyone of the parties could ask for the reopening of the case.

Is it really true that reopening, as a remedy, is simply a product of practice or jurisprudence? It

does not seem to be a product merely of practice or jurisprudence. In fact, it is embodied in the Rules of
Court. If you go through your rules on summary procedure, one of the prohibited pleadings is reopening
of a case. So that means to say that even in civil cases, reopening is recognized as a remedy that in
summary procedure, it is prohibited motion or pleading.

And then if we jump to criminal procedure, reopening of a case is not a product of

jurisprudence, it is a part of criminal procedure. The accused can ask for the reopening of the criminal
case even after the court has rendered a judgment of conviction. In criminal procedure, the court can
reopen the case even if the accused has been convicted, as long as the judgment of conviction has not
become final and executory. So it may not be accurate to consider entirely reopening of a case as a
remedy that is sourced only from practice and jurisprudence.

Since reopening is available in civil cases and it is also available in criminal cases, could it also be
available in special proceedings? Well again the answer is YES. If it is available in a civil case, if it is
available in a criminal case, there is no reason why it could not be used in special proceedings. The
Supreme Court has already ruled in several cases that reopening in special proceedings like settlement
of the estate of a deceased person can be allowed even if the settlement proceedings have been closed
and terminated. So in the settlement of the estate of a deceased person, even if the proceedings have
been closed, even if the executor had distributed the share of each of the heirs, even if the court has
approved his final accounting, even if the court has issued an order of closure and even if this order of
closure has been entered according to the Supreme Court reopening of the settlement proceeding
could still be had because it is possible that in settlement proceedings certain properties may have been
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left out. And if certain properties or certain heirs have been deprived in the settlement proceedings,
they can still ask for the proceeding to be reopened. They cannot file a separate proceeding for another
settlement because that is prohibited by law in settlement proceedings, there could only be one
settlement court. and if that settlement court has closed the proceedings and if turns out that there are
properties or other heirs who may be left cut, the settlement court will be forced to reopen the
proceedings to try these matters anew. So for purposes of reopening, it is available in civil cases,
although not so expressly provided in the rules. In criminal cases it is expressly provided, but in special
proceedings it is also a product of practice and jurisprudence.

COMMENT:

SEPARATE JUDGMENT is one rendered by a court disposing of a claim, among several others,
presented in a case after determination of the issues material to a particular claim and all counterclaims
arising out of transaction or occurrence, which is the subject matter of said claim.

It is proper when more than one claim for relief is presented in an action and a determination as to
the issues material to the claim has been made. The action shall proceed as to the remaining
claims.

Remedies against Judgment or Final Orders

a. BEFORE finality of judgment or final order;

1. A motion for reconsideration;

2. A motion for new trial; or

3. Appeal.

b. AFTER the finality of the judgment or final order

1. Relief from judgment or final order;

2. An annulment of judgment;

3. A petition for certiorari;

4. Collateral attack of a judgment

xxx ________________________________________ xxx _________________________________xxx

Rule 36 Section 6: Judgment against entity without juridical personality

When judgment is rendered against two or more persons sued as an entity without juridical
personality, the judgment shall set out their individual or proper names, if known.

xxx ________________________________________ xxx _________________________________xxx

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 RULE 37

NEW TRIAL OR CONSIDERATION

Remedies; availability depends on time frame

If the judgment is not upon a compromise, it is not by consent, it is not a judgment by

confession, the usual result of a litigation after rendition of a court by a judgment is that there is a
prevailing party and there is a losing party. On the part of the losing party, there are several remedies
that are made available to him to assail or challenge the judgment. And these remedies start with Rule
37, and then Rule 38 relied from judgment, Rule 47 annulment of judgment, of course Rule 40, 41
appeals, and in some instances, Rule 65 has been recognized by jurisprudence as a remedy to assail a
judgment or a final order.

Although there are several remedies made available to a losing party, it does not mean to say
that all these remedies could be used by the losing party. Whether or not a certain remedy is available
to a losing party depends on the time frame.

Rule 37 for instance, motion for new trial/motion for reconsideration, these remedies are
available to a losing party before a judgment becomes final and executory. So Rule 37 starts with the
premise that the remedies of new trial and reconsideration are available during the existence of the
period to appeal that is before taking an appeal, the losing party could avail of a motion for new trial or
a motion for reconsideration.

The same is true with remedy of appeal, the remedy of appeal assumes that the judgment has
not become final and executory.

Rule 38 relief from judgment on the other hand assumes that the judgment has become final and
executory. If you are going to read Rule 38, there is nothing mentioned in Rule 38 that the judgment
must first be final and executory before a relief from judgment could be availed of. But Rule 38 states
also that these remedy becomes available after the judgment or order is entered. And a judgment or
final order is entered after the lapse of the period to appeal. In other words, the assumption also in 38 is
that judgment has become final and executory.

Rule 47 as a remedy to assail a judgment also assumes that the judgment has become final and
executory. It is clearly provided in Rule 47 that annulment of judgment is available only after the
ordinary remedies of appeal, motion for new trial, motion for reconsideration and petition for relief, are
no longer available. In other words, annulment of judgment is also predicated on the premise that the
judgment has become final and executory.

Are these remedies available to a non litigant is 37, 38, 40 that appeals and 47?

Case in point: Islamic Dawa Council vs. COURT OF APPEALS

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 These are remedies to asail a judgment are available only to a litigant. But in one case
captioned Islamic Dawa Council vs. COURT OF APPEALS the Supreme Court said that annulment of a
judgment could be availed of by a stranger to a case by a non-litigant. But this stranger cannot avail a
motion for new trial/motion for reconsideration, appeal or petition for relief. But when comes to Rule
47, annulment of a judgment, a stranger/ non litigant could properly file a petition for annulment of a
judgment rendered in a case in which he is not a party, as long as he can show the court that he is going
to suffer prejudice by the execution of that final and executory judgment.

RULE 37 and RULE 38 are prohibited under Summary Procedure

The first remedy available to the losing party is found in Rule 37, thats new trial or
reconsideration. New trial or reconsideration, or a motion for reconsideration of course is a prohibited
motion in summary procedure. So if you are asked to give the remedies of a defeated party, you should
always factor in the procedure followed by the trial court. If the trial court followed summary procedure
on deciding the case, Rule 37 is a prohibited pleading. The defeated party in a case of unlawful detainer
or forcible entry for instance, cannot file a motion for new trial. He cannot file a motion for
reconsideration.

Can the defeated party in unlawful detainer or forcible entry avail of Rule 38, that is after a
judgment has become final and executory? The answer is NO. Rule 38 is included in the enumeration of
prohibited pleadings and motions in cases decided by the court following summary procedure. In other
words, in case decided by a court following summary procedure, the only remedies available to the
losing party are appeal, and possibly annulment of judgment. Annulment of judgment is not included in
the enumeration of prohibited pleadings and motions in summary procedure.

But if the trial court followed ordinary or the regular procedure, then the remedies that we
mentioned a while ago, 37, 38, 40, 47, and even 65 are available to the defeated party depending on
whether the judgment has become final and executory.

Available remedies where judgment is not yet final and executory: RULE 37 and appeal; In certain
exceptional circumstances SC allowed resort to RULE 38

If the judgment is not yet final and executory, there are two remedies that are given to the
defeated party, that is, RULE 37 and appeal. In other words, if the final order or judgment has not
reached the stage of being executory, and the defeated party files a petition for relief from judgment
under RULE 38, that petition for relief will have to be dismissed. But in certain cases decided by the
Supreme Court, when the defeated party filed a petition for relief while the period to appeal was still
running, the Supreme Court said liberal interpretation of the Rules will allow us to consider the petition
for relief as a motion for new trial. And that is a very sensible decision of the court, because a motion for
new trial and a petition for relief from judgment are founded practically on the same ground, which are
fraud, accident, mistake and excusable negligence. The only difference is that in petition from judgment,
newly discovered evidence is not a ground. So a petition from judgment filed by the defeated party

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while the period to appeal is running founded on fraud, accident, mistake, and excusable negligence,
although improperly filed, may be treated by the court as a motion for new trial.

Rule 37 Section 1: Grounds of and period for filing motion for new trial or reconsideration

Within the period for taking an appeal, the aggrieved party may move the trial court to set aside
the judgment or final order and grant a new trial for one or more of the following causes materially
affecting the substantial rights of said party:

(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have
guarded against and by reason of which such aggrieved party has probably been impaired in his
rights; or

(b) 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.

Within the same period, the aggrieved party may also move for reconsideration upon the grounds
that the damages awarded are excessive, that the evidence is insufficient to justify the decision or
final order, or that the decision or final order is contrary to law.

The remedies in 37 new trial and reconsideration, are different from each other. In the first
place, the grounds are different. New trial could be founded on fraud, accident, mistake, excusable
negligence and newly discovered evidence; while motion for reconsideration could be founded on three
(3) grounds; the award of excessive damages, the insufficiency of evidence and the judgment is contrary
to law.

Fraud in Rules 37, 38 and 47

Fraud in Rule 37, which is also a ground in Rule 38, which is also a ground in Rule 47
annulment of judgment, refers to extrinsic fraud. If you are going to read again Rule 37 as well as Rule
38, these Rules do not expressly tell us that the fraud contemplated in these two rules is an extrinsic
fraud. It is only in Rule 47, which says that a petition to annul judgment must be founded upon extrinsic
fraud. But in Rule 37 and in Rule 38, these rules speak only about fraud. What is the justification why the
fraud mentioned in Rule 37 and in Rule 38 refers only to extrinsic fraud, and not to intrinsic fraud? In
Rule 37 there is a qualifying phrase which follows the enumeration of fraud, accident, mistake, and
excusable negligence. The qualifying phrase says that it is a fraud which ordinary prudence could not
have guarded against and which could probably impair the rights of a party. According to the Supreme
Court, the qualifying phrase which ordinary prudence could not have guarded against refers to an
extrinsic fraud.

An intrinsic fraud is a fraud which ordinary prudence could guard against because it is a kind of
fraud that is committed during a trial of a case. Does it mean to say that given the distinction recognized
by the Rules between extrinsic fraud and intrinsic fraud that lawyers are given the license to be
dishonest to cheat one another during the trial of a case? Well the answer is YES. Rule 37 gives to a
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lawyer the license to be dishonest, to be devious, to be insincere while trying the case. He can commit
acts of intrinsic fraud, but not extrinsic fraud.

Why do the Rules allow a lawyer to be dishonest, to be devious, to commit acts of intrinsic
fraud? Well we learned in Legal Ethics course, that lawyers are priest in the temple of justice. But when
a lawyer steps down from a temple of justice, well he becomes a dishonest, an untrustworthy, a devious
and insincere individual. Those are the best words to describe a lawyer, and Rule 37 allows a lawyer to
be such.

Well according to the Supreme Court if we are going to consider all acts committed by a lawyer
as a ground for new trial, a case will never end. According to Supreme Court you can be sure that in
trying a case, a lawyer would have committed several acts of intrinsic fraud in order to protect the
interest of his client.

Is there any shield against a lawyer committing acts of intrinsic fraud, that is in so far as the
adverse party is concerned? The Supreme Court said yes, if the counsel for the plaintiff commits act of
intrinsic fraud, well the lawyer for the defendant can also commit acts of intrinsic fraud. So they are
about even, one intrinsic fraud for the plaintiff could be neutralized by the intrinsic fraud committed by
the lawyer for the defendant.

For instance, if the plaintiff presents to the court as his evidence a forged promissory note which
is not an act of extrinsic fraud, the presentation in evidence of forged documents is intrinsic fraud, it is
not a ground for new trial. If the plaintiff can present as his evidence a forged promissory note as his
evidence to support his claim, the defendant can also present a forged receipt to show that the claim
has been paid. In other words, the parties are given the freedom to cheat on one another during the
trial of a case. An act of dishonesty that falls under the coverage of intrinsic fraud can always be
neutralized by another act of intrinsic fraud that could be done by the adverse party.

But when the fraud falls within the coverage of extrinsic fraud, then that is a ground for new
trial. According to the Supreme Court, in interpreting Rule 37, extrinsic fraud is an act of dishonesty,
which prevents the other party from trying the case. That is, the adverse party is not given a chance to
appear in court and to present or prove his stand. So the presentation of forged documents, the
presentation of perjured witnesses, these are not considered act of extrinsic fraud, only act of intrinsic
fraud. And even if the adverse party can later on prove that the document presented by the plaintiff is
forged or that the witness presented by the plaintiff is a perjured witness the defendant cannot ask for a
new trial under Rule 37.

If the documents presented by the plaintiff turned out to be forged documents, or if the
witnesses presented by the plaintiff turned out to be perjured witnesses presented by the plaintiff
turned out to be perjured witnesses, and we do not consider these acts of intrinsic fraud, could we not
at least consider these as newly discovered evidence? According to the Supreme Court, these could not
be considered as newly discovered evidence. The discovery later on by the adverse party that one party

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has presented a forged document or has presented in court a perjured witness will not be a ground for
new trial either under fraud or under newly discovered evidence.

Newly discovered evidence vs. forgotten evidence

In newly discovered evidence, the Supreme Court also came out with the term forgotten
evidence to distinguish it from newly discovered evidence. In one case, the plaintiffs lawyer had in his
possession certain documents, which could support a decision in favor of the plaintiff. But in the course
of the trial the substitute lawyer failed to present to the court this document. A decision was rendered
against this client. The lawyer went to court and asked for a new trial based on newly discovered
evidence. The Supreme Court said the evidence is not newly discovered evidence. It is what we call
forgotten evidence. If evidence was already available to a party and he was not able to present it
through inadvertence or negligence of his counsel, that evidence will no be considered as newly
discovered evidence. It will simply fall within that concept forgotten evidence, which is not a ground for
new trial. So the evidence that will support a new trial is newly discovered evidence. That is, evidence
not available to a party at the time of trial.

COMMENT:

Formal Requisites of a Motion for New Trial or Reconsideration

1. Must be in writing;

2. A written notice must be served on the adverse party; and

3. Must state the ground/s therefore.

New Trial is the rehearing of a case already decided by the court but before the judgment rendered
thereon becomes final and executory, whereby errors of law or irregularities are expunged from the record
or new evidence is introduced, or both steps are taken.

Note: Rule 9 Sec. 3 (b) on the rules from order of default and Rule 37 on motion for new trial have the
same grounds Fraud, Accident, Mistake, Excusable Negligence. Rule 37 could also be a remedy in case
the defendant who is declared in default failed to avail of the remedy in Rule 9 Sec. 3 (b) and as a result, a
judgment has already been rendered. This is because Rule 37 is broader.

One remedy available to a party declared in default is, if the judgment has already been rendered when
the defendant discovered the default, but before the same has become final and executory, he may file a
motion for new trial under Section 1 (a) of Rule 37 (Cerezo vs. Tuazon)

Rule 9 Section 3 (b) vs. Rule 37

Rule 9 Section 3 (b) after notice of the order of default but before judgment.

Rule 37 if there is already a judgment but not yet final and executory. During the period of filing an
appeal.

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RECONSIDERATION The MOTION for RECONSIDERATION under this Rule is one that is
directed against a judgment or final order, not of an interlocutory order which for instance, precedes a
petition for certiorari.

Note: A motion for reconsideration of a judgment or new trial is a prohibited motion in a case that falls
under Summary Procedure. It is also prohibited under the Rule of Procedure for Small Claims.

When and Where to file a Motion for a New trial or Reconsideration

When to file: Within the period for taking an appeal (within 15-30 days from notice of the judgment). No
motion for extension of time to file a motion shall be allowed.

Where to file: With the trial court which rendered the questioned judgment

Distinctions Motion for New Trial from Motion for Reconsideration

Motion for New Trial

1. Grounds: Fraud, Accident, Mistake or Excusable Negligence or 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;

2. Second motion may be allowed so long as based on grounds not existing or available at the time
the 1st motion was made;

3. If a new trial is granted, the original judgment or final order is vacated. The case stands for trial
de novo and will be tried anew.

4. Available even on appeal but only on the ground of newly discovered evidence;

5. Prohibited in Summary procedure.

Motion for Reconsideration

1. Grounds: damages awarded are excessive, that the evidence is insufficient to justify the decision
or final order, or that the decision or final order is contrary to law;

2. Second motion from the same party is prohibited. (The prohibition applies only to final orders or
judgments; hence it is allowed in interlocutory orders.)

3. If the court finds that excessive damages have been awarded or that the judgment or final order is
contrary to the evidence or law, it may amend such judgment or final order accordingly;

4. Available against the judgments or final orders of both the trial and appellate courts;

5. Prohibited in Summary Procedure.

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Fraud Fraud as a ground for new trial must be extrinsic.

Extrinsic Fraud connotes any fraudulent scheme executed by the prevailing party outside of the trial
against the losing party who because of such fraud is prevented from presenting his side of the case. (ex.
Prevent witness from testifying)

Intrinsic Fraud refers to acts of a party during the trial which does not affect the presentation of the
case (ex. Presentation of a forged promissory note)

Accident may be defined as an event that takes place without ones foresight or expectation (ex. A
party. After being hit with a car, fails to attend the trial)

Mistake generally refers to mistakes of fact or law where, in good faith, the defendant was misled in a
case (ex. A party, relying upon a compromise, fails to answer and was declared in default)

Excusable Negligence what constitutes excusable negligence depends upon the circumstances of each
case.

Rule: Negligence of counsel is binding on the client.

Exceptions: Such negligence of counsel may be a ground for new trial if it was so great that the party was
prejudiced and prevented from fairly presenting his case. Specifically:

1. Where the gross negligence of the counsel deprives the client of due process of law;

2. When the application of the rule will result in the outright deprivation of clients liberty or
property;

3. Where the interest of justice so require.

Requisites of Newly-Discovered Evidence (Berry Rule)

1. It must have been discovered after trial;

2. It could not have been discovered and produced at the trial even with the exercise of reasonable
diligence; and

3. The evidence is of such weight that if admitted, would probably alter the result of the action; and

4. It must be material and not merely collateral, cumulative or corroborative.

These standards, also known as the Berry Rule, trace their origin to the 1851 case of Berry vs.
State of Georgia

Newly discovered evidence need not be newly created evidence. It may and does commonly refer
to evidence already in existence prior or during trial but which could not have been secured and
presented during the trial despite reasonable diligence on the part of the litigant ( Tumang vs. CA,
G.R. Nos. 82346-47, April 17, 1989)

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Newly discovered evidence vs. Forgotten evidence

Newly discovered evidence evidence was not available to a party during the trial, and was discovered
only thereafter.

Forgotten evidence evidence was already available to a party and was not able to present it through
inadvertence or negligence of counsel; not a ground for new trial.

Note: New trial should be distinguished from the exercise of the discretionary power of the court to
REOPEN a trial for the introduction of additional evidence, to clarify it doubts on material points. This
discretionary power is subject to no rule other than the paramount interest of justice and will not be
reviewed on appeal unless the exercise thereof is abused (Arce vs. Arce, L-130035, Nov. 28, 1959)

Distinction between New Trial from Reopening of Trial

New Trial

1. Proper only after promulgation of judgment;

2. Based on the FAME or newly discovered evidence;

3. This is always on motion of the party;

4. Specifically mentioned in the Rules;

Reopening of Trial

1. May properly be presented only after either or both the parties have formally offered and closed
their evidence before judgment;

2. This is based on the interest of justice and upon the courts discretion;

3. This may be done on the courts initiative;

4. Not mentioned in the rules but is nevertheless a recognized procedural recourse deriving validity
and acceptance from long established usage;

Note: it is actually mentioned in the Rules in Criminal Procedure (Rule 119 sec. 24) and as a
prohibited pleading in the 1991 Revised Rules on Summary Procedure

xxx ________________________________________ xxx _________________________________xxx

Rule 32 Section 2: Contents of motion for new trial or reconsideration and notice thereof

The motion shall be in writing stating the ground or grounds therefor, a written notice of which
shall be served by the movant on the adverse party.

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 A motion for new trial shall be proved in the manner provided for proof of motions. A motion
for the cause mentioned in paragraph (a) of the preceding section shall be supported by affidavits of
merits which may be rebutted by affidavits. A motion for the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom such evidence is expected to be given, or by duly
authenticated documents which are proposed to be introduced in evidence.

A motion for reconsideration shall point out specifically the findings or conclusions of the
judgment or final order which are not supported by the evidence or which are contrary to law, making
express reference to the testimonial or documentary evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.

A pro forma motion for new trial or reconsideration shall not toll the reglementary period of
appeal.

In Rule 37, we also meet the term pro forma motion. That term is not a product of
jurisprudence. It is embodied in Rule 37. A pro forma motion for new trial or a pro forma motion for
reconsideration. Basically if a motion for new trial or a motion for reconsideration does not comply with
the requirements in Rule 37, as well as the requirements in Rule 15 of a motion, that motion for
reconsideration or motion for new trial is a pro forma motion. So if a motion for new trial is founded on
fraud, and in the motion for new trial, the movant has attached affidavits of merit, which gives the
particulars of the fraud, but that motion for new trial is not set for hearing as required by Rule 15, that
motion for new trial is still a pro forma motion. So a motion for new trial must comply with all the
requirements in Rule 37, as well as the requirements of an ordinary motion in Rule 15. And in Rule 15
the requirement is that motion must be set for hearing. There must be a notice and there must be a
service upon the adverse party. A motion under Rule 37 cannot be heard ex parte. There must always be
service of a copy of the motion upon the adverse party.

So if a motion for new trial is set for hearing, it complies with all the requirements under Rule 15
but that motion for new trial is founded on fraud, but there is no affidavit of merit attached to the
motion, that motion will also be considered pro forma motion for new trial. If the motion for new trial is
founded on newly discovered evidence, the movant should attach to that motion for new trial, affidavits
of the witnesses if the newly discovered evidence consists of testimonial evidence. But if the newly
discovered evidence consists of documentary evidence, he should attach to the motion authentic copies
of this newly discovered evidence. Again, a motion for new trial will be pro forma if it does not meet the
requirements in Rule 37 as well as the requirements of a motion in Rule 15.

Disadvantages of pro-forma motion

Is it bad for the movant to file a motion for new trial or a motion for reconsideration which is
pro-forma? Well it may be harmful, it may not be harmful. The only thing that is certain when the
motion under Rule 37 us pro-forma is that it will not be granted. Of course if a motion under Rule 37 is
pro-forma, you can expect a denial of the motion which is expected of any motion for that matter. As we
have learned in the past, when a motion is presented to the court, there are two options available to the
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court, either grant the motion or deny the motion. So we apply the same principle to a motion for new
trial or a motion for reconsideration the court has the discretion to grant or deny the motion.

So if the motion for new trial is pro-forma, the movant can expect that court will deny his
motion, is that the only harmful effect of a pro-forma motion for new trial? Well aside from the
expectation by the pro-forma motion for new trial or reconsideration is going to be denied by the court,
the more serious consequences is that pro-forma motion in Rule 37 will not interrupt the period to
appeal. In other words, it is simply possible that by the time the court denies the motion for new trial
which is pro-forma, and by the time the movant receives the notice of the denial of his pro-forma
motion to appeal would have already expired. And if that period has already expired, that means to say
that judgment will now be entered, it becomes final and executory. So in a pro-forma motion under Rule
37 aside from the expectation of denial, it is possible that the period to appeal would have already
expired at the time the movant receives the denial of the court. And since the motion for new trial does
not interrupt the running of the period to appeal, the movant will already lose the remedy that is made
available to him, and that remedy is the remedy of appeal.

COMMENT:

A Motion for new trial:

1. Based on FAME and must include an affidavit of merit, which states:

a. The nature of character of FAME

b. The facts constituting the movants good and substantial defense or valid cause of action; and

c. The evidence which he intends to present if his motion is granted.

2. A motion for new trial, based on newly discovered evidence, must contain affidavits of
witnesses or duly authenticated documents.

A motion for reconsideration must point out the findings or conclusions not supported by the evidence
or contrary to law, making express reference to the testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such finding or conclusions.

An affidavits of merits is one which recites the nature and character of FAME on which the motion is
based and stating the movants good and substantial cause of action or defense and the evidence he
intends to present if the motion is granted, which evidence should be such as to warrant reasonable belief
that the result of the case would probably be otherwise (Paz vs. Inandan, 75 Phil. 608; Manila Surety vs.
Del Rosario, 101 Phil. 412)

Note: A motion for new trial or reconsideration suspends or tolls the running of the reglementary period
for appeal EXCEPT when the same is pro-forma.

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Note: 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 Corp. vs. Flojo, 251
SCRA 87)

Pro-Forma Motion for New Trial is one where the movant fails to make reference to the testimonial and
documentary evidene on record or the provision of law alleged to be contrary to the trials courts
conclusion as well as the reasons thereof, or of there is no affidavit of merit. The period to appeal is NOT
interrupted by the filing of such motion for new trial.

Two (2) types of pro-forma motion for new trial under Rule 37:

1. A motion for new trial which is not supported by affidavits of merits one which does not
comply in substance or in form with Section 2; and

2. A second motion for new trial on a ground available to the party when the first motion was filed
(Section 5)

Indication of a pro-forma Motion for new trial

1. It is based on the same ground as that raised in a denied motion under Rule 37;

2. It contains the same arguments in the opposition to a granted motion to dismiss;

3. The new ground alleged in the second motion for new trial already existed, was available and
could have been alleged in the first motion for new trial which was denied;

4. It is based on the ground of insufficiency of evidence or that the judgment is contrary to law but
does not specify the supposed defects in the judgment;

5. It is based on FAME but does not specify the facts constituting these grounds and/or is no
accompanied by an affidavit of merit; and

6. Non-compliance with the requirements of Rule 15.

Note: A motion for reconsideration, if based on the same grounds as that of a new trial, considered a
motion for new trial and has the same effect (Rodriguez vs. Rovira, G.R. No. 45252, Sept. 24. 1936)

Pro-Forma Motion for Reconsideration A motion for reconsideration is deemed pro-forma if the
same does not specify the findings or conclusions in the judgment which are not supported by the
evidence or contrary to law, making express reference to the pertinent evidence or legal provisions.

Motion for Reconsideration Held Pro-Forma

1. It was a second motion for reconsideration;

2. It did not comply with the rule that the motion must specify specific matters;

3. It failed to substantiate the alleged errors;

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 4. It merely alleged that the decision in question was contrary to law;

5. The adverse party was not given notice thereof;

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Rule 37 Section 3: Action upon motion for new trial or reconsideration

The trial court may set aside the judgment or final order and grant a new trial, upon such terms
as may be just, or may deny the motion. If the court finds that excessive damages have been awarded or
that the judgment or final order is contrary to the evidence or law, it may amend such judgment or final
order accordingly.

Rule 37 Section 4: Resolution of motion

A motion for new trial or reconsideration shall be resolved within thirty (30) days from the time
it is submitted.

Rule 37 Section 5: Second motion for new trial

A motion for new trial shall include all grounds then available and those not so included shall be
deemed waived. A second motion for new trial, based on a ground not existing nor available when the
first motion was made, may be filed within the time herein provided excluding the time during which
the first motion had been pending.

No party shall be allowed a second motion for reconsideration of a judgment or final order

In a new trial, another feature which distinguishes it from a motion for reconsideration is the
possibility of filing a second motion for new trial. Rule 37 expressly tells us that there could be a second
motion for new trial, as long as the second motion for new trial is founded on a ground different from
the ground upon which the first motion for new trial has been founded. But when it comes to a motion
for reconsideration there is an absolute prohibition against the filing of a second motion for
reconsideration by the same party. If a defeated party files a motion for reconsideration and it is denied,
and he files a second motion for reconsideration, that second motion for reconsideration will not
interrupt the running of the period to appeal, because Rule 37 says that the filing of a second motion for
reconsideration by the same party is not allowed by the Rules.

The prohibition against the filing of a second motion for reconsideration should be taken along
with a final order or judgment. But if the order that is being challenged is not a final order, it is just an
interlocutory order, there is nothing in the Rules which prohibits the filing of a first motion for
reconsideration or second motion for reconsideration of an interlocutory order. Rule 37 speaks only
about a final order, where the filing of a second motion for reconsideration by the same party is
prohibited.

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COMMENT:

Single Motion Rule a party shall not be allowed to file a second motion for reconsideration of
judgment or a final order.

While a second motion for reconsideration is not allowed, a second motion for new trial is authorized by
the Rules. A motion for new trial shall include all grounds then available otherwise they are deemed
waived. A second motion for new trial, based on a ground not existing, nor available when the first
motion was made within the period allowed but excluding the time during which the first motion had
been pending.

xxx ________________________________________ xxx _________________________________xxx

Rule 37 Section 6: Effect of granting of motion for new trial; effect of granting of motion for
reconsideration

If a new trial is granted in accordance with the provisions of this Rule, the original judgment or
final order shall be vacated, and the action shall stand for trial de novo; but the recorded evidence taken
upon the former trial, in so far as the same is material and competent to establish the issues, shall be
used at the new trial without retaking the same.

If the motion or new trial is granted or a motion for reconsideration is granted, well the court
may or may not also conduct a new trial. If what the movant has filed is a motion for reconsideration the
court does not have to conduct a new trial. The court can simply amend the decision or the final order
that is has rendered. If the motion for reconsideration is founded on the ground that the damages
awarded by the court are excessive, the court does not have to conduct a new trial. The court can simply
reduce the amount of damages that it has awarded. Or if the motion for reconsideration is founded on
the ground that the judgment is contrary to law, and the court is convinced that his decision really
contravenes the law, the court can simply amend the decision without conduction a new trial.

When a decision is amended by the court, well that decision is entirely a new decision. The
amended decision takes the place, it supersedes the original decision. So a new period to appeal will
have to be given to the adverse party.

COMMENT:

When motion is granted, the original judgment is thereby vacated and the action stands for trial de novo,
but the recorded evidence taken upon the former trial so far as the same is material and competent to
establish the issues, shall be used at the new trial taking the same.

Note: If the order granting a new trial is set aside, the original judgment is deemed repromulgated (Pineda
vs. CA, 65 SCRA 258)

xxx _______________________________________ xxx _________________________________xxx

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Rule 37 Section 7: Partial new trial or reconsideration

If the grounds for a motion under this Rule appear to the court to affect the issues as to only a
part, or less than all of the matter in controversy, or only one, or less than all, of the parties to it, the
court may order a new trial or grant reconsideration as to such issues if severable without interfering
with the judgment or final order upon the rest.

xxx ________________________________________ xxx _________________________________xxx

Rule 37 Section 8: Effect of order for partial new trial

When less than all of the issues are ordered retried, the court may either enter a judgment or
final order as to the rest, or stay the enforcement of such judgment or final order until after the new
trial.

xxx ________________________________________ xxx _________________________________xxx

Rule 37 Section 9: Remedy against order denying a motion for new trial or reconsideration

An order denying a motion for new trial or reconsideration is not appealable, the remedy being
an appeal from the judgment or final order.

If a motion for new trial or a motion for reconsideration is denied by the court, is the denial of
the motion for new trial interlocutory? It is a final order. The denial of a motion for new trial is not
interlocutory. It is a final order. Since it is a final order, can the aggrieved party appeal from this final
order, from this order denying his motion for new trial? Again Rule 37 is quite clear on this. A denial of a
motion for new trial, although a final order, that is not appealable. So the aggrieved party should not
appeal from a denial of a motion for new trial or a motion for reconsideration.

If under Rule 37, which is also provided for in Rule 41, that the denial if a motion for new trial is
not appealable, is there a remedy given to the adverse party? In Rule 41 there is a remedy from a denial
of a motion for new trial or a motion for reconsideration. Rule 41, while the denial of a motion for new
trial is not appealable, Rule 41 says that the aggrieved party can file a petition under Rule 65 to
challenge the denial of a motion for new trial. If we are going to take into account Rule 37, and then
Rule 40, 41 and the other rules concerning appeal, is it theoretically possible for the aggrieved party to
appeal from the judgment itself, and then file a petition for certiorari that will, challenge the denial of a
motion for new trial? Well that is possible, as long as the period to appeal is still running.

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 If a judgment is one on the merits, it is final in the sense the issues are resolved by the court,
one of the remedies available to the aggrieved party is to appeal from that judgment, without filing a
motion for new trial or reconsideration. If the aggrieved party however chooses to file a motion for new
trial or a motion for reconsideration under Rule 37, and the motion for new trial is thereafter denied,
the aggrieved party can appeal from the judgment itself as long as the period to appeal is still running.
And he can file under Rule 41 a petition for certiorari challenging or assailing the denial of his motion for
new trial. That Is a theoretical possibility. If you take into account the provisions of Rule 37, Rule 40 and
Rule 41, and the remedy of appeal as mentioned in the several rules that govern the appeal by the
aggrieved party.

Can the aggrieved party file an appeal before the CA under Rule 41, and at the same time file a
petition for certiorari under Rule 65 before the SC to assail the denial of a motion for new trial?

If theoretically, that is, it is procedurally possible for an appeal to be taken from a judgment, and a
petition for certiorari under Rule 65 is filed in order to challenge the denial of a motion for new trial, is it
also procedurally possible that the appeal will be taken to the Court of Appeals for instance, and the
petition for certiorari is filed with the Supreme Court, so that we have two distinct courts that are going
to decide a case that is brought on appeal and another petition for certiorari under Rule 41? Again that
is procedurally possible. It is theoretically possible. But in some cases decided by the Supreme Court, the
Supreme Court ruled that if this going to be the situation, the petition for certiorari should be
considered moot and academic, and just give to the Court of Appeals the entire discretion to resolve the
matter of appeal from that judgment as well as the denial of the motion for new trial. But again I want
to emphasize that it is theoretically possible, procedurally possible for one decision to be the subject of
an appeal and the denial of a motion for new trial to be the subject of an independent petition for
certiorari under Rule 65 because that is the situation precisely contemplated in Rule 41.

COMMENT:

Not certiorari under Rule 65 nor appeal from the denial of the motion but appeal from the judgment or
final order.

Denial of the motion; the fresh period rule if the motion is denied, the movant has a fresh
period of fifteen (15) days from receipt or notice of the order denying or dismissing the motion
for reconsideration or for new trial within which to file a notice of appeal. This fresh period
rule applies not only to Rule 41, but also to Rule 40, Rule 42, Rule 43, and Rule 45. (Neypes vs.
CA, G.R. No. 1415245, Sept. 14, 2005)

An order denying the motion for new trial

2nd motion for new trial based on grounds not existing or available when the 1st motion was filed

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Appeal from the judgment or final order and assign as one of the errors the denial of the motion for new
trial

Fresh period rule the aggrieved party has a fresh period of fifteen (15) days within which to file his
appeal. This applies to Rules 40, 41, 42, 43, and 45 (Neypes vs. CA, G.R. No. 1415245, Sept. 14, 2005)
and to an appeal in a criminal case.

The fresh period of fifteen days becomes significant only when a party opts to file a motion for new trial
or reconsideration.

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.

Note: Taking its cue from the earlier case of Neypes, the court in one case set aside the denial of a notice
of appeal which was purportedly filed five days late. With the fresh period rule, the 15 day period within
which to file the notice of appeal was counted from the notice of the denial of the motion for
reconsideration. (Sumaway vs. Urban Bank, Inc. 493 SCRA 99)

Effective December 27, 2007 it is submitted that an order denying motion for reconsideration is no longer
assailable by certiorari because of the amendment to Rule 41 by A.M. No. 07-7-12 SC. The amendment
obviously seeks to prevent the filing of a petition for certiorari under Rule 65 based on an order denying
a motion for new trial or a motion for reconsideration. The remedy available therefore, would be that
prescribed under Sec. 9 of Rule 37, i.e. to appeal from the judgment or final order.

xxx ________________________________________ xxx _________________________________xxx

RULE 38

RELIEF FROM JUDGMENTS, ORDERS OR OTHER PROCEEDINGS

To avail RULE 38, there must be a final and executory judgment

Now Rule 38 as a remedy to assail a judgment, as we said earlier, assumes that the judgment
has already become final and executory. Since the judgment is already final and executory, could we
consider then a petition for relief from judgment as an extraordinary remedy? Usually, when a judgment
has become final and executory it becomes immutable that is, it cannot be changed by the courts.
That is now the law between the parties. Even if the judgment is incorrect, even if the judgment is
wrong, as long as the judgment has become final and executory, that is now the law that will govern the
relationship of the parties.

Is RULE 38 an extraordinary remedy?

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 But in Rule 38 we meet a remedy given to a defeated party where he can still challenge or assail
a final and executory judgment. So in this context, could we consider Rule 38 relief from judgment as
an extraordinary remedy? All decisions of the Supreme Court were consistent in saying that Rule 38
really provides for an extraordinary remedy because this remedy is one that challenges a judgment that
has become final and executory. Under the 1997 Rules of Court particularly Rule 47, Rule 47 which the
rule on annulment of judgment, seems to consider relief from judgment under Rule 38 as an ordinary
remedy, because in Rule 47, it is provided that annulment of judgment is available after the ordinary
remedies of appeal, motion for new trial and relief from judgment have not been availed of. So it would
seem that if we look at Rule 38 from the point of view of Rule 47, rule 38 is just an ordinary remedy. But
in the past, the Supreme Court had consistently characterized relief from judgment as an extraordinary
remedy because if is designed to assail a final and executory judgment.

A petition for relief is not an independent action but a continuation of the old case

Since the judgment in Rule 38 has become final and executory, where should the petition be
filed? Or the other inquiry could be this way. Is a petition for relief under Rule 38 an independent
action, or is it just a continuation of the old action? It now clear that petition for relief is just a
continuation of the old case. It is not considered as an independent petition, although the judgment is
already final and executory. Rule 38 says that the petition for relief must be filed in the same case. So
we use the same docket number used by the court in deciding the case. And it must be filed with the
same court that decided the case. So if the trial court is an inferior court a Municipal Trial Court and this
Municipal trial court did not follow summary procedure in deciding a case, a petition for relief should be
filed with the same Municipal trial court. If the trial court is a Regional Trial Court, a petition for relief
must be filed with the same Regional Trial Court.

Could not the adverse party in this petition for relief if filed before an inferior court, assail the
jurisdiction of the inferior court? Cannot the adverse party contend that a petition for relief is not
cognizable by an inferior court because a petition for relief illustrates a case which is not capable of
pecuniary estimation? That will not be a good argument because under Rule 38, a petition for relief is
just a continuation of the old case. It is not petition that is separate and distinct from the old case. If it
were a separate and distinct petition, then a petition for relief should really be filed with the Regional
Trial Court, because a petition for relief is a clear case of one the subject matter of which is not capable
of pecuniary estimation. But again you cannot treat this as a new case because under Rule 38, a petition
for relief must be filed with the same court using the same docket number.

No issuance of summons under Rule 38

Another proof that Rule 38, although used to challenge a final and executory judgment is not an
entirely new and independent case, is that when the petition is filed, the court does not issue a
summons. We learned that if a complaint is filed, if an action is commenced, the usual procedure is for a
court to issue a summons. And then this summons will be served upon the defendant so that the court
will acquire jurisdiction over his person. Rule 38 precludes prohibits the issuance of summons upon its

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filing. What the court does, if it finds the petition to be sufficient in form and substance is to issue an
order directing the respondent to file a comment. There is no summons issued if the respondent does
not heed to order of the court if the respondent does not file a comment, can the respondent be
declared in default? The answer is no, because again, a petition for relief is not an independent action. It
is not a new action if the respondent in a petition for relief does not file a comment, well the court will
simply proceed with the hearing of the petition to determine whether or not there is merit in the stand
taken by the petitioner.

Note: This is not applicable to the Supreme Court because it is not a TRIER of FACTS

A petition for relief from judgment together with a motion for new trial and a motion for reconsideration
are remedies available only to parties in the proceedings where the assailed judgment is rendered. In fact,
it has been held that a person who was never a party to the case, or even summoned to appear therein,
cannot avail of a petition for relief from judgment (Alaban vs. Cam 470 SCRA 697)

Rule 38 Section 1: Petition for relief from judgment, order, or other proceedings

When a judgment or final order is entered, or any other proceeding is thereafter taken against a
party in any court through fraud, accident, mistake, or excusable negligence, he may file a petition in
such court and in the same case praying that the judgment, order or proceeding be set aside.

COMMENT:

This remedy presupposes that judgment has already become final and executory.

Nature: Not an independent action but a CONTINUATION of the old case. It is filed with the same court
which decided the case.

Grounds:

1. When judgment or final order is entered or any other proceeding is thereafter taken against the
petitioner through Fraud, Accident, Mistake and Excusable negligence.

2. When petitioner has been prevented from taking an appeal by Fraud, Accident, Mistake and
Excusable negligence (FAME).

Note: A petition for relief has been held to be applicable to all kinds of special proceedings, such as land
registration, intestate settlement, and guardianship proceedings.

A petition for relief is available not only against a judgment or final order. Under Sec. 1 Rule 38, it is also
available when any other proceeding is thereafter taken against the petitioner in any court through fraud,
accident, mistake, or excusable negligence. Thus it was held that a petition for relief is also applicable to
a proceeding taken after the entry of judgment or final order such as an order of execution. (Cayetano vs.
Ceguerra, 13 SCRA 73), or an order denying an appeal.

xxx ________________________________________ xxx _________________________________xxx

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Rule 38 Section 2: Petition for relief from denial of appeal

When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a
petition in such court and in the same case praying that the appeal be given due course.

COMMENT:

The petition is, in effect, a second opportunity for an aggrieved party to ask for a new trial. Hence, the
grounds mentioned have the same concepts that they have in motion for new trial.

RULE 37 vs. RULE 38

RULE 37

1. Available BEFORE judgment becomes final and executory;

2. Applies to JUDGMENTS or FINAL ORDERS only;

3. Grounds: FAME; and newly discovered evidence;

4. Filed within the time to appeal;

5. If denied, the order of denial is NOT appealable, hence remedy is appeal from the judgment;

6. Legal Remedy;

7. Motion need not be verified.

RULE 38

1. Available AFTER judgment has become final and executory;

2. Applies to judgment, final orders and other proceeding: Land Registration, Special Proceedings;
Order of Execution;

3. Grounds: FAME;

4. Filed within sixty (60) days from knowledge of judgment and within six (6) months from entry of
judgment;

5. If denied, the order denying a petition for relief is NOT appealable; the remedy is appropriate
civil action under Rule 65;

6. Equitable remedy;

7. Petition must be verified.

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A party who has filed a timely motion for new trial and/or reconsideration cannot file a petition for relief
after his motion has been denied. These remedies are exclusive of each other. It is only in appropriate
cases where a party aggrieved by the judgment has not been able to file a motion for new trial and/or
reconsideration that a petition for relief can be filed. (Francisco vs. Puno, G.R. No. L55694, Oct. 23,
1981)

xxx ________________________________________ xxx _________________________________xxx

Rule 38 Section 3: Time for filing petition contents and verification

A petition provided for in either of the preceding sections of this Rule must be verified, filed
within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be
set aside, and not more than six (6) months after such judgment or final order was entered, or such
proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake,
or excusable negligence relied upon, and the facts constituting the petitioners good and substantial
cause of action or defense, as the case may be.

Petition for relief is NOT available where approval was not taken; Time for filing petition; contents
and verification

The basic rule in 38 is still this: if the aggrieved party had a chance to appeal, but he failed to
avail of this remedy, then petition for relief will not be available to him. The reason is that a petition for
relief is not designed to revive the remedy of appeal which is lost through the inaction of negligence of
the aggrieved party. So the grounds for a petition for relief must be interpreted rather strictly fraud,
accident, mistake, excusable negligence and together with the time frame given in Rule 38 within 60
days from notice and within 6 months from entry of the final order or judgment. If the 6 month period
from entry has already expired, a petition for relief cannot be entertained by the trial court any more.
After the expiration of the 6 month period from the entry of judgment, the only remedy that is left is for
the aggrieved party to file a petition under Rule 47, that is petition for annulment of judgment.

Void Judgment

Of course we are talking here of judgments which are on their face voidable judgment. There
are certain judgments which are considered void ab initio by merely looking at the contents of a
judgment. For instance, if a judgment is what we call a sin pertuitio judgment , that on its face a void
judgment. You dont have to file a petition for relief. All you have to do is to attack the judgment right
away, or if the judgment is sought to be implemented, it could be attacked even collaterally. Another
example of a void judgment, that is void on its face, is a judgment where there are no findings of fact
and conclusions of law. If the court only writes the dispositive portion of the decision without a
correlative portion of the decision without a correlative findings of fact/findings of law, on its face that
judgment is null and void. The judgment that we are referring to in discussing Rules 37 and 38 are those
judgment that comply with the essentials in Rule 36, that is, there is a finding of fact, there is a finding of
law, there is the dispositive portion, and there is of course the signature of a court.

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 The other remedy available to the aggrieved party aside from Rule 37, that is while the period to
appeal is still running, is of course the remedy of appeal.

COMMENT:

Sixty (60) days after knowledge of the judgment AND not more than six (6) months after entry of such
judgment.

The date of entry of judgment is the date of finality of judgment or final order.

The two (2) period for the filing of a petition for relief are not extendible and never interrupted (i.e. filing
of petition for certiorari). Both periods must be complied with (Phil. Rabbit Bus Lines, Inc. vs. Arciaga,
G.R. No. 29701, Mar. 16, 1987)

Form and contents of the petition

1. The petition for relief must be in writing;

2. The petition must be accompanied by an affidavit showing FAME relied upon; and

3. The affidavit of merit accompanying the petition must also show the facts constituting the
petitioners good and substantial cause of action or defense as the case maybe

Affidavit of merit is one which recites the nature and character of fraud, accident, mistake or excusable
negligence (FAME) on which the motion is based.

It serves as the jurisdictional basis for the court to entertain a petition for relief. However, it is not fatal
defect to warrant denial of the petition so long as the facts required to be set out also appear in the verified
petition.

Instances when an affidavit of merit is NOT necessary

1. Where there is no jurisdiction over the defendant;

2. Where there is no jurisdiction over the subject matter;

3. Where the judgment was taken by default;

4. Where the judgment was entered by mistake or was obtained by fraud; or

5. Other similar cases.

xxx ________________________________________ xxx _________________________________xxx

Rule 38 Section 4: Order to file an answer

If the petition is sufficient in form and substance to justify relief, the court in which it is filed,
shall issue an order requiring the adverse parties to answer the same within fifteen (15) days from

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receipt thereof. The order shall be served in such manner as the court may direct, together with copies
of the petition and the accompanying affidavits.

COMMENT:

This remedy precludes the issuance of summons upon its filing. If the petition is sufficient in form and
substance, the court shall issue an order requiring the adverse parties to answer within fifteen (15) days
from receipt thereof. The order shall be served in such manner as the court may direct, together with
copies of the petition and the accompanying affidavits.

Failure to file answer does not warrant declaration of default.

xxx ________________________________________ xxx _________________________________xxx

Rule 38 Section 5: Preliminary injunction pending proceedings

The court in which the petition is filed, may grant such preliminary injunction as may be
necessary for the preservation of the rights of the parties, upon the filing by the petitioner of a bond in
favor of the adverse party, conditioned that if the petition is dismissed or the petitioner fails on the trial
of the case upon its merits, he will pay the adverse party all damages and costs that may be awarded to
him by reason of the issuance of such injunction or the other proceedings following the petition; but
such injunction shall not operate to discharge or extinguish any lien which the adverse party may have
acquired upon the property of the petitioner.

COMMENT:

Rule: Execution of judgment is not stayed UNLESS a writ of preliminary injunction is issued by the
court.

Upon filing of the petition:

1. The court in which the petition is filed may grant such PRELIMINARY INJUNCTION as may be
necessary for the preservation of the right of the parties, upon the filing by the petitioner of a
bond in favor of the adverse party.

2. Such injunction shall NOT DISCHARGE ANY LIEN which the adverse party may have acquired
upon the property of the petitioner.

xxx ________________________________________ xxx _________________________________xxx

Rule 38 Section 6: Proceedings after answer is filed

After the filing of the answer or the expiration of the period therefor, the court shall hear the
petition and if after such hearing, it finds that the allegations thereof are not true, the petition shall
dismissed; but if it finds said allegations to be true, it shall set aside the judgment or final order or other
proceeding complained of upon such terms as may be just. Thereafter the case shall stand as if such

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judgment, final order or other proceeding had never been rendered, issued or taken. The court shall
then proceed to hear and determine the case as if a timely motion for a new trial or reconsideration had
been granted by it.

In a petition for relief also under Rule 38, the court is given discretion to dismiss the petition outright.
The court is also given discretion to give due course to the petition if the court is convinced that there
could be merit in the petition. However, if the court thereafter denies the petition for relief or dismisses
the petition for relief, is the denial of the petition for relief a final order or an interlocutory order? The
denial of a petition for relief is a final order. Since it is a final order, could it be appealed by the
petitioner? Again you have to resort to Rule 41. This is an entirely new procedure under our present
Rules. If a petition for relief under Rule 38 is dismissed or denied, the dismissal or denial is a final order
but it is NOT APPEALABLE. This is another example of a final order which is not appealable under Rule
41, the remedy of the petitioner when his petition of relief is dismissed, is to file a petition under Rule
65. You have to know the final orders again, which although final in nature, are not appealable. And this
is one of them denial of a petition for relief is a final order it is not appealable. The same is true with
the denial of a motion for new trial. It is also a final order but it is not appealable. In both cases, the
remedy under Rule 41 is a petition under Rule 65.

Grounds in RULE 38 same as in RULE 37 except newly discovered evidence which is available only
RULE 37

The grounds for a petition of relief are exactly the same grounds for a motion for new trial when
the grounds are fraud, accident, mistake and excusable negligence. So the fraud that is contemplated in
Rule 38 is also extrinsic fraud, but you should notice that a petition for relief under Rule 38 could not be
founded on newly discovered evidence. Newly discovered evidence is a ground for new trial under Rule
37, but it is not a ground for petition of relief under Rule 38.

RULE 38 is not limited to judgment or final orders, but also includes any other proceedings taken by a
court.

Rule 38 is also could be used to challenge a judgment, a final order or any other proceeding
taken by the court which is not available in Rule 37. In Rule 37, what can be challenged in this Rule is a
judgment or a final order but not any other proceeding. So the scope of Rule 38 is enlarged, because
aside from assailing a judgment and a final order, Rule 38 also allows petitioner to assail a proceeding
taken thereafter by the court.

COMMENT:

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Two hearings under Rule 38

1. Hearing to determine whether the judgment should be set aside; and

2. If in the affirmative, a hearing on the merits of the case;

xxx ________________________________________ xxx _________________________________xxx

Rule 38 Section 7: Procedure where the denial of an appeal is set aside

Where the denial of an appeal is set aside, the lower court shall be required to give due course
to the appeal and to elevate the record of the appealed case as if a timely and proper appeal had been
made.

COMMENT:

Remedies if Rule 38 No longer available

1. Petition for annulment of judgment under Rule 47; and

2. A direct or collateral attack if judgment is void ab initio for lack of jurisdiction.

Note: Under A.M. No. 08-8-7 SC, otherwise known as the Rule of Procedure for Small Claims cases, a
Motion for New Trial or Reconsideration (Rule 37), and a Petition for Relief from Judgment (Rule 38) are
prohibited pleadings. Both remedies, likewise, are prohibited pleadings under the Rule on Summary
Procedure.

RULE 40

APPEAL FROM THE MUNICIPAL TRIAL COURTS TO THE REGIONAL TRIAL COURTS

Appeal is not a constitutional right

We continue with appeals. The first thing that we should remember when it comes to appeals is
that appeals is not a Constitutional right. It is s statutory right. Since it is just a statutory right the
Supreme Court could fix rule, which says that in certain instances there will be no appeal taken from
certain judgment or final orders. And this is exemplified in Rule 41. The general rule is that a final order
or judgment there could be an appeal except in instances where the law or the Supreme Court declared
that no such right exist, and in Rule 41 there are several instances where a final order is declared to be
not appealable, but at the same time, the Supreme Court has provided for another remedy which is the
appropriate action under Rule 65. It would be certitiorari, or prohibition, or mandamus.

Erroneous appeal vs. Improper Appeal

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 We should also take note that in appeals there is a term for erroneous appeal, and there is as
distinguished from an improper appeal. In erroneous appeal, the mode of appeal taken by the appellant
is not the correct mode. For instance, if the mode of appeal authorized by the Rules is a petition for
review, but the appellant uses the first mode ordinary appeal, then the appellant is guilty of taking an
erroneous appeal. We will discuss the consequences later. Improper appeal refers to a situation where
the mode of appeal taken by the appellant is the correct mode of appeal. In that appeal the appellant
raises the wrong issue that could be decided by the appellate court. An example is an appeal to the
Supreme Court which under Rule 45 should be taken by petition for review on certiorari. If the appellant
appeals to the Supreme Court on a petition for review on certiorari, the appeal is not erroneous, it is a
correct appeal. But if in that petition for review on certiorari he raises question of fact, the appeal will
be improper because generally, question of fact could not be raised before the Supreme Court.

Legal question vs. Factual question

We should also take note of the difference between a legal question, a question of law and
factual question, questions of facts on appeals. When the only duty of the appellate court is to
determine the law applicable to a given state of facts, that is these facts are either admitted
hypothetically or the admission is genuine, then the issue involved is one of law. But when the appellate
court will have to evaluate the evidence presented by the parties, and the appellate court is bound to
determine the truth or falsity of certain facts, and thereafter determine or ascertain the law applicable,
then question of fact are raised before the appellate court.

The step-ladder approach

We should also remember that in BP 129, a Regional Trial Court is also an appellate court. The
same is true with the Court of Appeals, the same is true with the Supreme Court. And the general
proposition on appeals is that, we follow a system of a laderized appeal, that is, a step-ladder approach
when it comes to appeals. Meaning to say that if the case originated from an inferior court, an appeal
could not be taken generally direct to the Court of Appeals or to the Supreme Court. Since there is still
an appellate court lower than the Court of Appeals and the Supreme Court, the appeal should be taken
to that court which is a Regional Trial Court. So our system of appeals is laderized. From an inferior court
we appeal to the Regional Trial Court, and from the Regional Trial Court we go either to the Court of
Appeals, and then from the Court of Appeals we go to the Supreme Court. it is a step-ladder approach in
making an appeal.

When is an appeal a matter of right and when is it not?

Usually also, the first appeal made by the aggrieved party is a matter of right. But succeeding
appeals will only be considered as a matter of discretion on the part of the appellate court. But when it
comes to the Supreme Court in civil cases even the first appeal to the Supreme Court is not a matter of
right. An appeal to the Supreme Court is always a matter of discretion on the part of the Supreme Court.
That is in civil cases. We follow a different rule in criminal cases where appeal could be a matter of right
in some criminal cases. For instance, when penalty imposed is death, the appeal is automatic. That is a
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matter of right on the part of the accused. When the penalty imposed is life imprisonment, the appeal is
not a matter of discretion on the part of the Supreme Court because the mode of appeal is by notice of
appeal. It is not by way of a petition for review on certiorari under Rule 45.

ORDINARY APPEAL is an appeal by notice of appeal from a judgment or final order of a lower court
on question of fact and law.

Note: A question that was never raised in the court below cannot be allowed to be raised for the first time
in appeal, without offending the basic rules of fair play, justice and due process (Villanueva vs. Sps.
Salvador, G.R. No. 139436, Jan. 25, 2006)

Rule 40 Section 1: Where to appeal

An appeal from a judgment or final order of a Municipal Trial Court may be taken to the
Regional Trial Court exercising jurisdiction over the area to which the former pertains. The title of the
case shall remain as it was in the court of origin, but the party appealing the case shall further referred
to as the appellant and the adverse party as the appellee.

COMMENT:

VBJ Notes:

So of a case originates from an inferior court, a Municipal Trial Court, the decision or final order
of that inferior court should be appealed to the Regional Trial Court which has territorial jurisdiction
over the inferior court. From a final order or judgment of the Municipal Trial Court of Manila for
instance, is appealable to the Regional Trial Court of Manila. The appeal is not to any Regional Trial
Court. it is an appeal to the Regional Trial Court which has territorial jurisdiction over the inferior court
of origin.

When the inferior court exercises its delegated jurisdiction to try land registration or cadastral cases,
appeal from its decision or final order may be taken directly to the Supreme Court or the Court of
Appeals as the case may be

May there be an appeal from an inferior court directly to the Supreme Court or to the Court of
Appeals, that is, by passing a Regional Trial Court? Weve always followed the general rule: from an
inferior court the appeal should always be to a Regional Trial Court. But if you will recall under BP 129,
there is one exception. When the inferior court exercises its delegated jurisdiction to try land
registration or cadastral cases, the appeal from a decision or final order of the inferior court could be
brought directly to the Supreme Court or the Court of Appeals, as the case may be. The justification for
this exception is that when an inferior court decides a case in the exercise of its delegated jurisdiction
over cadastral and land registration cases, the inferior court will be considered as if it were a Regional
Trial Court. That is the only known instance where there could be an appeal directly from an inferior
court to the Supreme Court or to the Court of Appeals. In this exceptional situation, we are going to

338
bypass the Regional Trial Court. So again the general rule is that from an inferior court, the appeal
should always be made to a Regional Trial Court.

Should the appeal from the inferior court be brought to the Regional Trial Court even if the only issue
involved is a question of law?

Well the answer is YES. Does not the answer conflict with the Constitutional provision which
says that the Supreme Court has jurisdiction to review, reverse, modify, affirm or appeal decisions of
inferior courts in the following cases, that is, one of the instances is when the only issue involved is a
question of law. We do not conflict with that Constitutional provision because the Constitutional
provision does not vest exclusive appellate jurisdiction on the Supreme Court to determine question of
law raised on appeal. The Supreme Court has exclusive appellate jurisdiction over questions of law only
if that decision is rendered by the Court of Appeals or by a Regional Trial Court. But when a case
originates from an inferior court, even if the only issue involved in the appeal is one of law, the appeal
should still be brought to a Regional Trial Court, which means to say that a Regional Trial Court as an
appellate court to rule/to decided purely question of law, that is, brought to it on appeal from a final
order or judgment of an inferior court.

Appeal to the RTC

Mode of Appeal Notice of appeal within fifteen (15) days from receipt of decision.

After an appeal to the RTC has been perfected, the MTC loses its jurisdiction over the case and any
motion for the execution of the judgment should be filed with the RTC.

Note: The Rules on Summary Procedure no longer applies when the case is on appeal.

xxx ________________________________________ xxx _________________________________xxx

Rule 40 Section 2: When to appeal

An appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or
final order appealed from. Where a record on appeal is required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30) days after notice of the judgment or final order.

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new trial or reconsideration shall be followed.

VBJ Notes:

The period to appeal of course depends on whether the only requirement is a notice of appeal
or there is an additional requirement of a record on appeal. Again you have to read the cases that are
cognizable by an inferior court in the exercise of its original jurisdiction. There are certain cases
cognizable by an inferior court, which if appealed would require a record on appeal. In these instances,
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the period of appeal is thirty (30) days, compared to the fifteen (15) period of appeal where the only
requisite of appeal is the filing of a notice of appeal.

Motion for extension of time to file a motion for new trial or reconsideration is prohibited

You should also take note of the principle that although a motion for new trial or a motion for
reconsideration is available in cases decided by an inferior court were the procedure followed is
ordinary and not summary procedure, the Rules prohibit the filing of a motion for extension of time to
file a motion for new trial or motion for reconsideration. So under Rule 37, the period to file a motion
for new trial or a motion for reconsideration is the period to appeal which could either be 15 days or 30
days. Within that 15 day or 30 day period, a motion for new trial or a motion for reconsideration must
be filed. The aggrieved party cannot file a motion asking for the extension of that 15 days or 30 days
period within which to file this motion for new trial and motion for reconsideration.

It is important for the appellant to determine the period given to him within which to perfect an
appeal? Well the answer is YES. The appeal must be perfected within the time prescribed by the Rules.
The Supreme Court has been consistent in saying that perfection of the appeal on time is a matter of
jurisdiction. So if the appeal is not perfected on time, automatically the judgment is entered. And when
a judgment is entered, the remedy of appeal is no longer available to the aggrieved party. So the appeal
must be perfected on time even if the case originates from an inferior court.

Material Data Rule

In Rule 40, it is also required that the mode of appeal, that is, ordinary appeal and the filing of a
notice of appeal, or coupled with a record on appeal in certain instances, must comply with what is
known as the material data rule. The material data rule was rule that was observed in the 1960s and
70s. Eventually, it was abandoned by the Supreme Court. This rule was liberalized. But under the
present rules we have reverted to this material data rule. The material data rule on appeals simply
requires the appellant to state in his notice of appeal and in the record on appeal, that the appeal was
perfected on time. So all he has to do is to state in the notice of appeal when the decision or final order
was received, so that it will be very convenient on the part of the appellate court to determine whether
or not the appeal was indeed timely perfected.

So the notice of appeal is a very short document, it is one paragraph document. The appellant
simply tells the court of origin, the trial court that he is appealing the judgment to the Regional Trial
Court. Its a very simple piece of paper. But under the material data rule, the appellant should see to it
that he should state in the notice of appeal that the date when he received a copy of the decision or
final order so that we can easily determine if the 15 day or 30 day period to appeal has been complied
with.

Notice of appeal vs. Record on appeal

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 Also in appeals from an inferior court or a Regional Trial Court, the Rules prohibit the appellant
from filing a motion for extension of the period to file a notice of appeal. So if the mode of appeal that is
allowed is ordinary appeal, that is, the filing of a notice of appeals, the appellant should not file a motion
for extension of the 15 day period to appeal. That is prohibited by the Supreme Court. But if the
ordinary appeal requires the filing of a record on appeal, and therefor the period is a 30 day period, the
appellant can file a motion for extension of the period to submit a record on appeal. Again if the only
requirement to perfect an appeal is the filing of a notice of appeal, the 15 day period cannot be
extended. If the appeal needs the filing of a record on appeal, the 30 day period can be extended by the
court.

Why is there a discrimination against the mode where the only requisite is a notice of appeal?
Why cannot the 15 day period be extended in the same way that the 30 day period could be extended?
Well the reason is that a notice of appeal as I said is just a very simple document. It is just a one page
document. And it is irregular for the appellant to be asking the court for an additional 15 day, for
instance, simply to file a notice of appeal. In fact in practice, the notice of appeal is not prepared by the
lawyer himself. He just leaves that to the clerk of the law office, because the notice of appeal simple
tells the court of origin, the trial court, that the appellant is appealing the decision of the Regional Trial
Court.

In the case of a record on appeal, a record on appeal could be a very voluminous document
because the record on appeal will copy all the pleadings submitted by the parties the complaint, the
answer, the cross claim, counter claim, third party complaint. It will also copy all relevant motions and
the orders issued by the court. It will also include in the record on appeal the decision itself rendered by
the court. So the preparation of the record on appeal could take a long period of time. The 30 day
period may not be sufficient.

COMMENT:

1. Within fifteen (15) days after notice of judgment or final order.

2. Where a record on appeal is required, within 30 days from notice of judgment or final order by
filing a notice of appeal and a record on appeal.

Note: Section 2 of Rule 40 provides that the period of appeal shall be interrupted by a timely motion for
new trial or reconsideration.

But, under the Fresh Period Rule, a party litigant may either file his notice of appeal within 15 days
from receipt of the RTCs decision or file it within 15 days from receipt of the order denying his motion
for new trial or motion for reconsideration.

Ratio and Basis:

Pursuant to its sole prerogative to amend procedural rules, the SC deems it necessary to change
the afore-stated rule in order to standardize the appeal periods provided in the Rules of Court, to

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 be counted from receipt of the order denying the motion for new trial or motion for
reconsideration (whether full or partial or any final order or resolution) and to afford litigants fair
opportunity to appeal their cases.

The fresh period shall apply to:

1. Rule 40
2. Rule 41
3. Rule 42
4. Rule 43
5. Rule 45

Note: No motion for extension of time to file a motion for new trial or reconsideration shall be allowed.
But if the appeal requires the filing of a record on appeal, a motion for extension to submit record on
appeal is allowed.

xxx ________________________________________ xxx _________________________________xxx

Rule 40 Section 3: How to appeal

The appeal is taken by filing a notice of appeal with the court that rendered the judgment or
final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or
final order or part thereof appealed from, and state the material dates showing the timelines of the
appeal.

A record on appeal shall be required only in special proceedings and in other cases of multiple or
separate appeals.

The form and contents of the record on appeal shall be as provided in Section 6, Rule 41.

Copies of the notice of appeal, and the record on appeal where required, shall be served on the
adverse party.

VBJ Notes:

In Rule 40 which governs the appeal from an inferior court to a Regional Trial Court, the only
mode of appeal is mentioned is an appeal by notice of appeal, which is ordinary appeal. If you compare
this to Rule 41 which enumerates the three modes of appeal in a civil cases, and these three modes are
ordinary appeal thats notice on appeal or by record on appeal; petition for review; and petition for
review on certiorari, if we compare Rule 41 to Rule 40, there is nothing mentioned in Rule 40 about the
availability of an appeal by a petition for review or appeal by petition for review on certiorari. So the
message in Rule 40 is clear. From a decision or final order of an inferior court, the appeal must be made
to a Regional Trial Court. and the mode of appeal mentioned in Rule 40 is ordinary appeal a notice of
appeal coupled in certain instances with a record on appeal.

COMMENT:

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 A. By notice of Appeal

1. File a notice of appeal with the trial court;

2. The notice of appeal must indicate:

a. Parties;

b. Judgment or final order appealed from;

c. Material date showing timeliness of appeal

3. A copy served on the adverse party; and

4. Payment in full of docket fees and other lawful fees.

B. By record on appeal

Required in cases where multiple appeals are allowed:

1. Special Proceedings such as probate;

2. Actions for recovery of property with accounting;

3. Actions for partition of property with accounting;

4. Special civil actions of eminent domain (expropriation);

5. Special civil actions for foreclosure of mortgage. (Roman Catholic Archbishop of Manila vs.
CA, 258 SCRA 186)

Distinctions

Ordinary Appeal

1. Matter of Right;

2. All the records are elevated from the court of origin;

3. Notice and record on appeal are filed with the court of origin;

4. The case was decided by the RTC pursuant to its original jurisdiction. The case was originally
filed in the RTC.

Petition for Review

1. Discretionary;

2. No records are elevated unless the court decrees it;

3. Filed with the CA;

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 4. The case was decided by the RTC pursuant to its appellate jurisdiction.

Material Data Rule - the notice of appeal must also be accompanied by a statement of the material dates
showing the timeliness of the appeal.

xxx ________________________________________ xxx _________________________________xxx

Rule 40 Section 4: Perfection of appeal; effect thereof

The perfection of the appeal and the effect thereof shall be governed by the provisions of
Section 9, Rule 41.

COMMENT:

Governed by Section 9, Rule 41.

Note: The notice of appeal does not require the approval of the court. The function of the notice of appeal
is merely to notify the trial court that the appellant was availing of the right to appeal, and not to seek the
courts permission that he be allowed to pose an appeal. (Crisologo vs. Daray, A.M. No. RTJ-07-2036,
August 30, 2006)

xxx ________________________________________ xxx _________________________________xxx

Rule 40 Section 5: Appellate court docket and other lawful fees

Within the period for taking an appeal, the appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed from the full amount of the appellate court docket and
other lawful fees. Proof of payment thereof shall be transmitted to the appellate court together with
the original record or the record on appeal, as the case may be.

VJB Notes:

Another important matter that you must take note of in appeals is that the appellant must pay
the appellate court docket fee. According to the Supreme Court again, the payment of the appellate
court docket fee is jurisdictional. So if a notice of appeal is submitted but the appellate court docket fee
is not paid on time, then the appeal is not proper. It could be dismissed by the Regional Trial Court. This
is one of the grounds for the dismissal by a Regional Trial Court of the appeal the fact that the
appellate court docket fee was not paid on time. Again the reason is, the payment of docket fee in
appeals is a matter of jurisdiction. Its similar to the requirement of the payment of docket fees in the
filing of a complaint. If a complaint is filed but the corresponding docket fees are not paid, we all know
that the court does not acquire jurisdiction over the complaint. We follow that same principle when it
comes to appeals. We also require payment of the appellate court docket fee.

Exercise of residual jurisdiction by the inferior courts

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 If the case originates from an inferior court and there is an appeal under Rule 40, does the
inferior court exercise what is called residual jurisdiction in appeals? If you are going to read Rule 40,
there is nothing mentioned about residual jurisdiction exercised by the inferior court if an appeal is
perfected on time, that is to the Regional Trial Court. Does it mean to say that an inferior court does not
possess residual jurisdiction once the appeal is perfected and that appeal is brought to the Regional Trial
Court? Well the answer is NO. Even if Rule 40 does not mention anything about the residual jurisdiction
of an inferior court, the inferior court likewise possesses residual jurisdiction in the same manner that a
Regional Trial Court exercises residual jurisdiction over appealed cases. The justification is found in Rule
41. Although the title of Rule 41 is Appeal from a Regional Trial Court to distinguish it from Rule 40
which speaks of an appeal from an inferior court to the Regional Trial Court, in Rule 40 it is expressly
provided that the provisions of Rule 41 will apply to Rule 40 as long as there is no conflict between the
two. There could be no conflict between Rule 40 and Rule 41 when it comes to residual jurisdiction of
inferior court because in Rule 40; nothing is mentioned at all about residual jurisdiction.

COMMENT:

Within the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the
judgment or final order appealed from the full amount of the appellate court docket and other lawful fees.
Payment of appellate court docket fees is jurisdictional. Failure to do so is a ground for dismissal of
appeal. (Sec1c Rule 50)

However, non-payment of docket fees does not automatically result in dismissal of appeal, the dismissal
being discretionary in the court if there are justifications for non-payment (Fontanar vs. Bonsubre. G.R.
No. 56315, Nov. 25, 1986)

xxx ________________________________________ xxx _________________________________xxx

Rule 40 Section 6: Duty of the clerk of court

Within fifteen (15) days from the perfection of the appeal, the clerk of court or the branch clerk
of court of the lower court shall transmit the original record or the record on appeal, together with the
transcript and exhibits, which he shall certify as complete, to the proper Regional Trial Court. A copy of
his letter of transmittal of the records to the appellate court shall be furnished the parties.

COMMENT:

Within fifteen (15) days from the perfection of the appeal, the clerk of court shall transmit the original
record or the record on appeal, together with the transcripts and exhibits, to the appellate court/RTC.

Appeal from MTC to RTC

Appeal decision of MTC by filing notice of appeal and pay within 15 days from receipt of judgment.

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 15 days from perfection of appeal, MTC clerk transmits record to RTC.

Notice to parties that an appeal is being taken from the decision of MTC

Within 15 days from notice:

Appellants submits memorandum to the RTC

Appellee files his own memorandum 15 days from receipt of appellants memorandum

If uncontested, judgment is entered in the book of entries. Any party may appeal by filing a
petition for review with the CA.

xxx ________________________________________ xxx _________________________________xxx

Rule 40 Section 7: Procedure in the Regional Trial Court

(a) Upon receipt of the complete record or the record on appeal, the clerk of court of the
Regional Trial Court shall notify the parties of such fact.

(b) Within fifteen (15) days from such notice, it shall be the duty of the appellant to submit a
memorandum which shall briefly discuss the errors imputed to the lower court, a copy of
which shall be furnished by him to the adverse party. Within fifteen (15) days from receipt
of the appellants memorandum, the appellee may file his memorandum. Failure of the
appellant to file a memorandum shall be a ground for dismissal of the appeal.

(c) Upon filing of the memorandum of the appellee, or the expiration of the period to do so,
the case shall be considered submitted for decision. The Regional Trial Court shall decide the
case on the basis of the entire record of the proceedings had in the court of origin and such
memoranda as are filed.

VBJ notes:

After the appeal is perfected, and it is perfected by the filing of a notice of appeal, the Regional
Trial Court will now require the appellant to submit his appeal memorandum. Is the appeal from the
inferior court to the Regional Trial Court a matter of right, or it is a matter of discretion? In other words;
once the appeal is perfected from an inferior court to a Regional Trial Court the Regional Trial Court is
duty bound to review the case and to render its own decision as an appellate court. The Regional Trial
Court under Rule 40 is not given the discretion whether or not to entertain the appeal unlike in the case
of the Supreme Court, and in certain instances the Court of Appeals. When the appeal is by notice of

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appeal, you can be sure that the appeal is a matter of right. Meaning to say, the appellate court has no
discretion at all whether or not to entertain the appeal.

Once the appeal is perfected, that is from the inferior court to the Regional Trial Court is it now
the duty of the Regional Trial Court to review the decision to evaluate the findings of the trial court?
Under Rule 41, if the Regional Trial Court acts as an appellate court, the Regional Trial Court can require
the appellant to submit an appeal memorandum. The Rule also say, that if the appellant does not submit
an appeal memorandum, the Regional Trial Court can dismiss the appeal. In so far as the Regional Trial
Court is concerned, why is the appeal memorandum vital? Why it is important to the Regional Trial
Court? In appeals from the inferior court to the Regional Trial Court, the appeal memorandum is
important because it is in the appeal memorandum where the appellant is supposed to point out to the
Regional Trial Court the errors committed by the inferior court. It is similar thereof to a brief on appeal.
If the appellant refuses to submit an appeal memorandum, the implication is that the appellant cannot
point out errors committed by the inferior court. And the Regional Trial Court can rely on the rule on
Evidence that a decision rendered by a court is presumably correct. There is always a disputable
presumption that a decision rendered by a court is correct. So the Regional Trial Court can rely on that
presumption if the appellant refuses or fails to submit an appeal memorandum which is required to be
submitted to the Regional Trial Court.

Another ground for the dismissal of an appeal by a Regional Trial Court, that is, the case having
originated from an inferior court, is the failure of the appellant to show that the appeal was perfected
on time, or that the docket fees were paid on time. As we said earlier, the payment of docket fees, the
timely filing of a notice of appeal these are jurisdictional requisites before the appellate court could
take jurisdiction over the appeal.

General Rule: An appeal by one party benefits the party alone; exceptions

Basically the rule on appeals also say that an appeal by one party could only benefit this party.
For instance, if there four defendants in the case. Plaintiff vs. Defendant 1, Defendant 2, Defendant 3
and Defendant 4, and a decision is rendered against all the defendants. If defendant 1 appeals, the
appeal by defendant 1 generally will not benefit the other defendants. So in our case, if only defendant
1 has perfected an appeal, in so far as defendants 2,3, and 4 are concerned, the judgment will become
final and executory. So that if later on defendant 1 wins on appeal, he is the only one who will be
considered as the winner in that appeal. In so far as defendant 2, 3, and 4 are concerned, since there is
no appeal taken by them, the judgment will be entered in so far as they are concerned, and the
judgment becomes final and executory. There is however an exception to this Rule. According to
Supreme Court, if the interest of all the defendants are intertwined, and that is the word used by the
Supreme Court, the interest of defendants 1, 2, 3, and 4 are intertwined they cannot be separated, if
defendant 1 is the only defendant who appeals and he obtains a favorable decision on appeal, that
favorable decision will benefit not only defendant 1 but the rest of the other defendants. But you should
note that this is only the exception to the general rule. The general rule still is that an appeal brought by
one party will only benefit this party. It will not benefit his co-parties who did not perfect an appeal.
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 We should compare this to a situation in Rule 9, that is, if you will recall in Rule 9 the rule on
default. If there are four defendants in a civil case and one defendant answers; but the others do not file
an answer, the non-answering defendants will be declared in default. The reason is because they have
not filed an answer, but no separate judgment by default could be rendered by the court. The court will
still try the case based on the answer filed by the answering defendant if after trial the court decides in
favor of the answering defendant, that judgment will be beneficial to the defaulting defendants. The
victory of the answering defendant will also be considered the victory of the defaulting defendants. But
if we compare this to a case already decided and brought on appeal by only one of the defeated parties,
this appeal generally will benefit only the party who has appealed. The non-appealing parties cannot
benefit from a favorable judgment obtained by the appealing party.

Is it possible for the aggrieved parties in one case to avail of all the remedies under the Rules for
assailing a judgment?

If this is the rule that we follow on appeals, is it possible then for the defeated parties in one
case to be availing of all the remedies given in the Rules to challenge a judgment? If there are four
defendants in a case, can one defendant avail Rule 37? Can the other defendant avail of Rule 38? Can
the other defendant avail Rule 47? Can the other defendant avail of appeal? Well of there are several
defendants in one case, it is procedurally possible for all the remedies to challenge a judgment to be
used in one of the same case at the same time. Again, if there are four defendants: defendant 1,
defendant 2, defendant 3 and defendant 4, defendant 1 could appeal. If defendant 1 appeals, in so far as
defendant 1 is concerned the judgment will not become final and executory. The appeal must first be
decided by the appellate court. In so far as defendants 2, 3 and 4 are concerned, the judgment will
become final and executory. Since the judgment is final and executory in so far as defendants 2, 3, and 4
are concerned, can defendant 2 file a petition for relief from judgment under Rule 38? The answer is
YES, because in so far as defendant 2 is concerned, the judgment is already final and executory. Can
defendant 3 avail of Rule 47 annulment of judgment? The answer is YES, because in so far as
defendant 3 is concerned the judgment has become final and executory.

So if there is plurality of parties to a case, it is simply possible that all these parties who are
considered aggrieved parties may avail of all the remedies mentioned in the Rules to challenge a
judgment, because it is possible that in so far as one defendant is concerned or one aggrieved party is
concerned, the judgment is not yet final and executory, while in so far as the other aggrieved parties are
concerned the judgment has already become final and executory. But if there is only one aggrieved
party, it is not possible for this aggrieved party to be availing of all the remedies at the same time. If the
judgment is not yet final and executory, this sole aggrieved party cannot conceivably resort to Rule 38.
He cannot even file a petition to annul judgment. If judgment is not yet final and executory in so far as
this sole aggrieved party is concerned, the only remedies available to him are Rule 37 and an appeal. So
the fact that these remedies to challenge a judgment are available on different periods of time does not
preclude the possibility that all of them will be availed of in the same case at the same time. But you
have to inject the idea of plurality of aggrieved parties. One may appeal, but that appeal will not benefit

348
generally the other aggrieved parties, and therefor the other aggrieved parties can avail of the other
remedies provided by law when the judgment has become final and executory.

COMMENT:

1. Upon receipt of the complete record or record on appeal, the clerk of court of the RTC shall
notify the parties of such act.

2. Within 15 days from such notice. It shall be the duty of the appellant to submit a
MEMORANDUM which shall briefly discuss the errors imputed to the lower court, a copy of
which shall be furnished the adverse party.

Note: The requirement for the submission of appellants memorandum is a mandatory and
compulsory rule. Non-compliance therewith authorizes the dismissal of the appeal.

3. Within 15 days from the receipt of the appellants memorandum, the appellee MAY file his
memorandum. Upon filing f the memorandum of the appellee, or the expiration of the period to
do so, the case shall be considered submitted for decision.

Note: If the appellee does not file a memorandum, the case shall be submitted for decision BUT it
does not follow that he will lose the case.

xxx ________________________________________ xxx _________________________________xxx

Rule 40 Section 8: Appeal from orders dismissing case without trial; lack of jurisdiction

If an appeal is taken from an order of the lower court dismissing the case without a trial on the
merits, the Regional Trial Court may affirm or reverse it, as the case may be. In case of affirmance and
the ground of dismissal is lack of jurisdiction over the subject matter, the Regional Trial Court, if it has
jurisdiction thereover, shall try the case on the merits as if the case was originally filed with it. In the
case of reversal, the case shall be remanded for further proceedings.

If the case was tried on the merits by the lower court without jurisdiction over the subject
matter, the Regional Trial Court on appeal shall not dismiss the case if it has original jurisdiction thereof,
but shall decide the case in accordance with the preceding section, without prejudice to the admission
of amended pleadings and additional evidence in the interest of justice.

VBJ Notes:

In appeals from an inferior court to the Regional Trial Court, and the appeal is brought to the
Regional Trial Court because the inferior court has dismissed the case for absence of jurisdiction, and
the Regional Trial Court affirms the judgment or final order, in the sense that the Regional Trial Court
agrees that the inferior court did not have jurisdiction to try the case. Rule 40 requires Regional Trial
Court NOT to dismiss the case. Rule 40 requires that the Regional Trial Court must try the case. So if an
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inferior court dismisses a case filed before it for lack of jurisdiction, the dismissal of course for lack of
jurisdiction is a final order. According to Rule 40, the remedy of the plaintiff is to appeal by notice of
appeal to the Regional Trial Court. If the Regional Trial Court agrees with the order of the inferior court
that the inferior court has no jurisdiction, the Regional Trial Court must try the case, now exercising not
its appellate jurisdiction but exercising its original jurisdiction.

Is the dismissal of a complaint by the inferior court for lack of jurisdiction with or without prejudice?

If the inferior court dismisses a case filed before it for lack of jurisdiction how can the plaintiff
resort to the remedy of ordinary appeal, considering that in Rule 41, an order a final order which
dismisses the case without prejudice is not appealable. You see in Rule 41, it is really provided that when
an order of dismissal is a dismissal without prejudice, the final order is not appealable. The remedy
according to Rule 41 is to file a petition for certiorari under Rule 65. But what we are saying now is, if a
case is tried by an inferior court and that inferior court dismisses the case for lack of jurisdiction, does
not Rule 41 prohibit the plaintiff from appealing? Does not Rule 41 require the plaintiff to file a petition
under Rule 65, considering that a dismissal on the ground of lack of jurisdiction is a dismissal without
prejudice? Well the answer is, there is now a conflict between Rule 40 and Rule 41, it is provided that if
there is a conflict between Rule 40 and Rule 41 when it comes to decisions and final orders rendered by
an inferior court, it is Rule 40 that will prevail. So where the inferior court dismisses a case for lack of
jurisdiction, the dismissal is a dismissal without prejudice. Certainly it cannot be with prejudice because
it is based only on lack of jurisdiction and a dismissal without prejudice is applicable only to a final order
of a Regional Trial Court. What we are going to follow when it comes to decisions or final orders of
inferior court is Rule 40. If there is a conflict between Rule 40 and Rule 41, and the decision or final
order comes from an inferior court we always follow Rule 40.

What if the appellant, instead of filing a mere notice of appeal under Rule 40, files a petition for
review under Rule 41?

The mode of appeal from an inferior court to the Regional Trial Court under Rule 40 is ordinary
appeal, that is, you simply file a notice of appeal coupled with a record of appeal if required by law.
Supposing that appellant instead of filing a notice of appeal, files a petition for review? The appeal is of
course erroneous, because the mode of appeal is a wrong mode of appeal. Will the appeal be dismissed,
that is, again in Rule 40, the mode of appeal is ordinary appeal by notice of appeal. The appellant
instead of filing a mere notice of appeal and paying the appellate court docket fee files a petition for
review which is the second mode of appeal under Rule 41. It is correct to say that the appeal is an
erroneous appeal, because the mode chosen is not the right mode. Will it result to the dismissal of the
appeal? Well the answer is NO. In an appeal from an inferior court to the Regional Trial Court, if the
appeal is erroneous, meaning to say instead of a notice of appeal, a petition for review is filed, the
petition for review will be considered as a compliance with the notice of appeal. The reason is, a petition
for review also contains a notice of appeal. In fact, it is a very lengthy document but in that lengthy
document, the petitioner, that is the appellant, already manifest his desire to appeal from the decision
of the trial court. So this is one instance where an erroneous appeal will not result to the dismissal of the
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appeal because the mode chosen complies substantially with the requirements of the correct mode. So
an erroneous appeal may not result to the dismissal of the appeal if the appeal is from an inferior court
to the Regional Trial Court.

Supposing that issues or issues of law or purely issues of law are raised before the Regional Trial
Court, can there be an improper appeal to the Regional Trial Court coming from an inferior court? There
could be no improper appeal from an inferior court to a Regional Trial Court. There could be an
erroneous appeal but it will not lead to the dismissal of the appeal. The appeal could be improper, that
is, there is no such thing as improper appeal from an inferior court to the Regional Trial Court because
all issues could be raised before the Regional Trial Court as an appellate court. Issues purely of law,
issues purely of fact, or a mixed question of law or fact, could be raised when the appeal is from an
inferior court to the Regional Trial Court.

COMMENT:

A. If the lower court dismissed the case without trial on the merits, RTC may;

1. Affirm, if ground of dismissal is lack of jurisdiction over the subject matter. The RTC , if it
has jurisdiction, shall TRY, the case on the merits as if the case was originally filed therein;

2. Reverse, in which case, it shall remand the case for further proceedings.

B. If the case was tried on the merits by the lower court without jurisdiction over the subject
matter:

RTC shall not dismiss the case if it has original jurisdiction, but shall DECIDE the case, and shall
ADMIT amended pleadings or additional evidence.

xxx ________________________________________ xxx _________________________________xxx

Rule 40 Section 9: Applicability of Rule 41

The other provisions of Rule 41 shall apply to appeals provided for herein insofar as they are
not inconsistent with or may serve to supplement the provisions of this Rule.

VBJ Notes:

Now what is meant by the residual jurisdiction of the court of origin? The court of origin here
again is either an inferior court or a Regional Trial Court. Residual jurisdiction of a trial court refers to its
authority to rule on certain matters even if the appeal is already perfected. Even if the appeal is not
within the jurisdiction of the appellate court, the trial court still retains jurisdiction to decide certain
matters. And these certain matter are enumerated in Rule 41 as well as in Rule 42. In Rule 41 I think it is
in Section 9, that is, the last paragraph speaks about the jurisdiction that is given on the trial court even
after the perfection of the appeal. Some of the instances that could be resolved by the court of origin
notwithstanding the perfection of the appeal are matters affecting the rights and interest of the parties

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not related to the issues raised on the appeal. The court of origin has authority to approve a
compromise agreement, that is, even of the appeal has already been perfected. The court of origin also
has an authority to allow an appeal by an indigent. The court of origin also has authority to order the
execution of the judgment pending appeal. So the appeal from a judgment or final order of a trial court,
and the trial court is either an inferior court or a Regional Trial Court does not absolutely deprive the
court of origin to resolve certain matters brought to it notwithstanding the perfection of the appeal.

Duration of the exercise of residual powers depends on the mode of appeal taken

For how long will the court of origin the inferior court, or the Regional Trial Court, continue to
possess residual jurisdiction? In order to give an accurate answer, you have to determine the mode of
appeal that is required by law. If the mode of appeal is ordinary appeal, that is notice of appeal, the
residual jurisdiction continues to be possessed by the trial court until the records are transmitted to the
appellate court. The transmittal of the records is the burden of the clerk of court. So we cannot
ascertain when the records could be actually transferred. But before the records are actually
transferred, the residual jurisdiction continues to be possessedly the court of origin. But when the mode
of appeal is by petition for review which is applicable on to a Regional Trial Court acting as an appellate
court, the residual jurisdiction of the Regional Trial Court continues to exist until the Court of Appeals
gives due course to the petition for review. So the period when the residual jurisdiction of the trial
court, of the inferior court of the Regional Trial Court as the case may be exist, again will depend, on the
mode of appeal taken by the appellant. During this period, the court of origin continues to possess
powers to resolve the motions presented under Rule 41, Section 9.

COMMENT:

By virtue of this provision, the inferior courts also exercise residual jurisdiction in the same manner
provided under par. 5 Section 9 of Rule 41.

xxx ________________________________________ xxx _________________________________xxx

RULE 41

APPEAL FROM THE REGIONAL TRIAL COURTS

Note: As amended by A.M. No. 07-7-12 SC, effective December 27, 2007

Three modes of appeal from decision of the RTC

1. Ordinary Appeal or appealed by writ of error, where judgment was rendered in a civil or
criminal action by the RTC in the exercise of its original jurisdiction.

This mode of appeal, governed by Rule 41, is taken to the Court of Appeals on question of fact or
mixed questions of fact and law.

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 2. Petition for review, where judgment was rendered by the RTC in the exercise of its appellate
jurisdiction.

This mode of appeal, covered by Rule 42, is brought to the Court of Appeals on questions of fact,
or law, or mixed questions of fact and law.

3. Petition for review on certiorari or appeal by certiorari to the Supreme Court

This mode of appeal, provided for by Rule 45, is brought to the Supreme Court from the decision
of the Regional Trial Court in the exercise of its original jurisdiction and only on questions of
law. (Sec. 2, Rule 41, Rules of Court; Five Star Marketing Corporation vs. Booc, 535 SCRA 28)

Rule 41 Section 1: Subject of Appeal

An appeal may be taken from a judgment or final order that completely disposes of the case, or
of a particular matter therein when declared by these Rules to be appealable.

No Appeal may be taken from:

(1) An order denying petition for relief or any similar motion seeking relief from judgment;

(2) An interlocutory order;

(3) An order disallowing or dismissing an appeal;

(4) An order denying a motion to set aside a judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or any other ground vitiating consent;

(5) An order of execution;

(6) A judgment or final order for or against one or more several parties or in separate claims,
counter claims, cross-claims, and third party complaints, while the main case is pending
unless the court allows an appeal therefrom; and

(7) An order dismissing an action without prejudice;

In any of the foregoing circumstances, the aggrieved party may file an appropriate special civil
action as provided in Rule 65. (As amended by A.M. No. 07-7-12-SC, December 1, 2007)

COMMENT:

Appealable Cases:

1. Judgment or final orders that completely disposes of the case;

2. A particular matter in a judgment declared by the Rules to be appealable.

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Non Appealable Cases

1. An order denying a petition for relief or any similar motion seeking relief from judgment;

2. An interlocutory order;

3. An order disallowing or dismissing an appeal;

4. An order denying a motion to set aside a judgment by consent, confession or compromise on the
ground of fraud, mistakes or duress, or any other ground vitiating consent;

5. An order of execution;

6. A judgment or final order for or against one or more of several parties or in separate claims,
counterclaims, cross-claims, and third party complaints, while the main case is pending, unless
the court allows an appeal therefrom; and

7. An order dismissing an action without prejudice.

Remedy in cases where appeal is not allowed:

Special civil actions of certiorari or prohibition if there is lack or excess of jurisdiction or grave abuse of
discretion or mandamus if there is no performance of duty (Rule 65).

Note: The order denying a motion for new trial or reconsideration has been deleted from the list. Hence,
an aggrieved party may no longer assail an order denying a motion for new trial or a motion for
reconsideration by way of Rule 65. The proper remedy is to appeal from the judgment.

Interlocutory Order refers to an order which does not dispose of the case but leave something else to
be done by the trial court on the merits of the case.

Note: The term final has two (2) possible meanings in Civil Procedure:

1. Final in the sense that it is already executory and that happens if there is no appeal. and that is for
purposes of applying Rule 39 on execution.

2. Final in the sense that it is not merely interlocutory because it completely disposes of the case or a
particular matter therein and there is nothing more for the court to do after its rendition (Bairan
vs. Tan Sui Lay, L19460, Dec. 28, 1966)

Test for determining whether a judgment or order is final or interlocutory:

Does it leave something to be done in the trial court with respect to the merits of the case? If it does it is
interlocutory order, hence, you cannot appeal yet; if it does not, it is final and therefore you can appeal.
(Reyes vs. De Leon, L-3720, June 24, 1952)

A judgment based on compromise is not appealable and is immediately executory. The remedies
set aside a compromise agreement are:

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 (1) Motion to set aside;

(2) Motion for reconsideration or new trial;

(3) Petition for relief from judgment, or

(4) Petition for annulment of judgment.

This rule refers to appeals from RTC exercising ORIGINAL JURISDICTION. An appeal on pure
questions of law CANNOT be taken to the CA and such improper appeal will be dismissed
pursuant to Sec. 2, Rule 50.

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 2: Modes of appeal

(a) Ordinary Appeal The appeal to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with
the court which rendered the judgment or final order appealed from and serving a copy
thereof upon the adverse party. No record on appeal shall be required except in special
proceedings and other cases of multiple or separate appeals where the law or these Rules
so require. In such cases, the record on appeal shall be filed and served in like manner.

(b) Petition for review The appeal to the Court of Appeals in cases decided by the Regional
Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in
accordance with Rule 42.

(c) Appeal by certiorari In all cases where only question of law are raised or involved, the
appeal shall be to the Supreme Court by petition for review on certiorari in accordance with
Rule 45.

VBJ Notes:

If the Regional Trial Court eventually renders a judgment as an appellate court, and let us say
that the judgment of the Regional Trial Court affirms the decision of the trial court, does the appellant
still have another remedy of appeal? The answer is YES but this time, the mode of appeal is no longer an
ordinary appeal but it should use the second mode, that is petition for review to be filed before the
Court of Appeals. The petition for review as a mode of appeal this time is no longer a matter of right. It
is a matter of discretion on the part of the Court of Appeals. So the Court of Appeals has the discretion
whether or not to entertain the appeal. So as a matter of general proposition, we can say that of the
appeal is the second appeal allowed by the Rules. That second appeal usually is an appeal that is not a
matter of right. It is a matter of discretion.

Will a notice of appeal satisfy the requirements of a petition for review and vice versa?
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 From the Regional Trial Court acting as an appellate court, the mode of appeal is petition for
review, that is the second mode of appeal. Supposing that the appellant commits an error and his
appeal is an erroneous appeal. Instead of filing a petition for review, he files a notice of appeal. Is the
appeal erroneous? Well the answer is YES, because the mode of appeal is not the one allowed by law.
Will that erroneous appeal be harmful to the appellant? This time the answer is YES because the mode
of appeal required is petition for review and the mode used is ordinary appeal. Does not the filing of a
notice of appeal satisfy the elements of a petition for review? A notice of appeal can never satisfy the
requirements of a petition for review. But a petition for review will satisfy the requirements of a notice
of appeal. Why cannot a notice of appeal satisfy the requirements of a petition for review? If you are
going to read rules, the contents of a petition for review are: there is an assignment of errors, there are
arguments in support of the errors assigned, there is a statement of facts, there is a statement of the
case, which can never satisfied by a notice of appeal. We said earlier that a notice of appeal is a very
simple document. It is one-paragraph statement saying that the appellant is appealing to a higher court.
In a petition for review, the appellant does not only manifest to the court his desire to appeal. In the
petition for review itself, the appellant must already point out the errors committed by the Regional
Trial Court. He must also point out arguments in support of these errors assigned by him. It is not
possible for a notice of appeal to contain an assignment of errors. It is not possible for a notice of appeal
to contain arguments in support of the errors assigned. It is not possible for a notice of appeal to contain
a statement of facts. It is not possible for a notice of appeal to contain a portion called a statement of
the case. So if the mode of appeal required is a petition for review, and the mode used is a notice of
appeal, that appeal will be dismissed because the appeal will not be sufficient in form and substance.

Certificate of non-forum shopping is required in a petition for review although the latter is not an
initiatory pleading

Another requirement for a petition for review, which is not required in a notice of appeal,
although a petition for review is just a mode of appeal, is a certification on non-forum shopping. So you
might ask, A petition for review is just a mode of appeal. Why is it still required for the appellant to
include in his petition for review a certification on non-forum shopping? But in a notice of appeal, there
is no need for the appellant to incorporate in the notice a certification on non forum shopping? In a
petition for review there is a need for a certification on non-forum shopping to avoid the probability that
the appellant may have filed another appeal with a different court. If you will study the history of this
forum shopping, the rule on forum shopping originated with appealed cases. It did not originate with
actions commenced before trial courts. In the past it was possible for lawyers to bring several appeals
involving the same case before different courts. And these different courts found it hard sometimes to
reconcile the decisions rendered by them if they eventually render different decisions. There was
therefor a need for the appellant to make a certification that he has not commenced any other appeal
before another court. And we continue to observe the same requirement. So in a petition for review
before the Court of Appeals, although this is just a mode of appeal, it is not an initiatory pleading in
other words, there is still a requirement for the incorporation of a certification on non forum shopping
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to avoid the possibility of the appellant making several appeals before different courts involving the
same case.

Where the original case is governed by summary procedure, can the aggrieved party after receiving
the decision rendered by the Regional Trial Court as an appellate court properly file a motion for
reconsideration or a motion for new trial as the case may be?

Awhile ago we were talking about a case that originates from an inferior court, and the case
involved was one of unlawful detainer, which you recall is governed by summary procedure, the remedy
of appeal is available to the aggrieved party. So the case is not before the Regional Trial Court as an
appellate court. The Regional Trial Court renders decision affirming the judgment rendered by the
inferior court. We said that there could be a second appeal, this time the mode is a petition for review
to be filed with the Court of Appeals, of course copy furnished the prevailing party and also the Regional
Trial Court, which rendered the appealed decision.

If the Regional Trial Court as an appellate court decides a case of unlawful detainer, can the
aggrieved party file a motion for reconsideration before the Regional Trial Court, given that the filing of
a motion for reconsideration or a motion for new trial is prohibited by summary procedure? It is correct
to say that a motion for new trial or a motion for reconsideration is a prohibited motion in cases
governed by summary procedure. Can the aggrieved party after receiving the decision rendered by the
Regional Trial Court as an appellate court properly file a motion for reconsideration or a motion for new
trial as the case may be? The answer is YES. Even if the case was tried by an inferior court following
summary procedure, once appeal is made to the Regional Trial Court, the Regional Trial Court is no
longer bound by summary procedure. Summary procedure applies only to the trial court, that is, to the
inferior court. When the case is brought on appeal to the Regional Trial Court, the efficacy of summary
procedure ceases. The Regional Trial Court, acting as an appellate court will decide the case according to
the rules on appeal not according to the Rules of summary procedure. So it is proper for the Regional
Trial Court to entertain a motion for new trial or a motion for reconsideration even if the appealed case
is a case of unlawful detainer.

It is important to know that the filing of a motion for reconsideration before the Regional Trial
Court is not prohibited because the period to file a petition for review is stopped completely once a
motion for reconsideration is filed before the Regional Trial Court. If the Regional Trial Court denies the
motion for reconsideration, the period within which a petition for review to the Court of Appeals will
start a new. So a decision is rendered by the Regional Trial Court, the petition for review must be filed
within 15 days from receipt of that decision. On Day 15 a motion for reconsideration or a motion for
new trial is filed, so that motion for reconsideration is timely submitted to the Regional Trial Court. If the
Regional Trial Court eventually denies the motion for reconsideration, the aggrieved party has a new
period of 15 days all over again within which to file a petition for review. If the Regional Trial Court
denies a motion for reconsideration filed in a case decided by it as an appellate court, as in the case of
an unlawful detainer, the aggrieved party has a new round of 15 days all over again within which to
perfect his appeal to the Court of Appeals by filing a petition for review.
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RULE 41 Section 2 (c): Appeal by certiorari

From the decision of the Court of Appeals, there could be a third appeal, that is assuming that
the case originated from the inferior court. So from an inferior court we go to the Regional Trial Court,
that is the first appeal. From Regional Trial Court we go to the Court of Appeals, that is the second
appeal, and then from the Court of Appeals we can go up still to the Supreme Court. That will in essence
be the third appeal of the case and it will be brought to the Supreme Court. And the appeal will be
governed by Rule 45.

Motion for reconsideration/motion for new trial before the CA instead of Rule 45

Instead of appealing immediately to the Supreme Court under Rule 45, can the aggrieved party
avail of remedies while the case is still in the Court of Appeals, that is, after the Court of Appeals has
rendered its decision, can the aggrieved party entertain other remedies aside from appealing to the
Supreme Court? Which is rather a risky proposition? Well you see, appeal to the Supreme Court is again
a matter of discretion, and the Supreme Court usually does not entertain this appeal even if there is a
slight error contained in the petition for review on certiorari. For instance, if the aggrieve partys counsel
files a petition for review on certiorari under Rule 45, and he neglects to state in the petition his IBP
receipt number for the payment of the dues for this year, or he neglects to state in his petition for
review the number of his professional tax receipt that is supposed to be issued by the local government,
or he neglects to indicate in the petition for review on certiorari his roll number in the Roll of Attorneys,
the Supreme Court will dismiss the petition for being insufficient in form and substance. So going up
directly to the Supreme Court from the Court of Appeals takes a lot of risk on the part of the petitioner.
So the petitioner would rather avail of remedies if there are any, that are available while the case is still
within the control and jurisdiction of the Court of Appeals. And there are really certain remedies
provided for in the Rules aside from appealing to the Supreme Court under Rule 45. The first remedy is a
motion for reconsideration before the Court of Appeals.

The motion for reconsideration before the Court of Appeals should of course be filed within the
reglementary period for appealing to the Supreme Court. You will notice that a motion for
reconsideration before the Court of Appeals does not provide clearly for the grounds upon which this
motion should be founded unlike a motion for reconsideration under Rule 37. Under Rule 37 there are
three grounds for a motion for reconsideration that is filed before a trial court award of excessive
damages, insufficiency of evidence or that the judgment is contrary to law. A motion for reconsideration
in the Court of Appeals does not enumerate the grounds upon which this motion could be founded. In
other words, the movant can make use of the grounds mentioned in Rule 37, in asking the Court of
Appeals to reconsider its decision.

Again just like in a trial court, a second motion for reconsideration by the same party is not
allowed. So in the Court of Appeals, just like in trial courts, that is a Regional Trial Court or an inferior
court, a second motion for reconsideration coming from the same party is prohibited.

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In a motion for new trial before the CA, the only ground possible is newly discovered evidence

Can the aggrieved party challenge a decision of the Court of Appeals by filing instead of a
motion for reconsideration, a motion for new trial? Well the answer is also YES. The Rules again
expressly allow the filing of a motion for new trial before the Court of Appeals. But this time, the only
ground for a motion for new trial is newly discovered evidence. So if you are going to compare the
grounds for a motion for new trial in the Court of Appeals, and a motion for new trial before a Regional
Trial Court, the distinguishing featurein37 is that this motion for new trial could be founded on fraud,
accident, mistake or excusable negligence plus newly discovered evidence. But in a motion for new trial
before the Court of Appeals, we can forget about fraud, accident, mistake or excusable negligence. The
only ground available to justify a motion for new trial in the Court of Appeals is newly discovered
evidence.

Movant can ask for new trial even if CA has not decided the case

It is also very queen (strange) in the Court of Appeals, when a motion for new trial is filed. A
motion for new trial under Rule 37 assumes that a judgment or a final order has been rendered by the
trial court. So if the trial court has not yet rendered a decision, a motion for new trial cannot be a
remedy at all. So we can ask for a motion for new trial before a Regional Trial Court or an inferior court
as long as these courts have already decided the case, whether in a judgment or in a final order. But
when it comes to new trial in the Court of Appeals, the movant can ask for new trial in the Court of
Appeals even if the Court of Appeals has not decided the cause. The movant need not wait for the Court
of Appeals to decide the case if he thinks that he has come across a newly discovered evidence. Upon
discovery of this new evidence, even if the Court of Appeals has not decided the case, the interested
party can thereafter file a motion for new trial based on newly discovered evidence You might ask, if
the Court of Appeals has not yet decided the case, it has not yet rendered a decision or a final order,
what is the sense in asking for a new trial? What are we going to assail or challenge in that motion for
new trial? In a motion for new trial before the Court of Appeals before it has rendered its decision, the
decision or final order that is going to be assailed is the decision rendered by the Regional Trial Court. So
here is one instance where there could be a motion for new trial even if the court has not rendered its
own decision, and this applies to a case appealed to the Court of Appeals where the movant is allowed
to file a motion for new trial based solely on newly discovered evidence even before rendition of the
judgment.

COMMENT:

Ordinary Appeal (Appeal by writ of error)

1. Case is decided by the RTC in its original jurisdiction. (Appealed to CA)

2. File a notice of appeal or a record on appeal with the court of origin (RTC) and give a copy to the
adverse party;
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 3. Within fifteen (15) days from the notice of the judgment for notice of appeal and within thirty
(30) days for records on appeal.

Petition for Review (Rule 42)

1. Case is decided by the RTC in the exercise of its appellate jurisdiction. (Petition for review with
the CA).

2. File a verified petition for review with the CA. Pay the docket and lawful fees, and P500 as
deposit for costs with the CA. Furnish RTC and adverse party copy of such (Rule 42).

3. Within 15 days from notice of the decision to be reviewed or from the denial of a MR or new
trial.

Petition for review on certiorari (Rule 45)

1. Case is decided by the RTC, CA, CTA and Sandiganbayan (Appealed to SC);

2. Filed a verified petition for review on certiorari with the SC (Rule 45). Pay docket and lawful fees
and P500 for costs. Submit proof of service of a copy to the lower court and adverse party.

3. Within fifteen (15) days from notice of the judgment or order or denial of the MR or new trial

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 3: Period of ordinary Appeal

The appeal shall be taken within fifteen (15) days from notice of the judgment or final order
appealed from. Where a record on appeal is required, the appellants shall file a notice of appeal and a
record within thirty (30) days from notice of the judgment or final order. However, on appeal in habeas
corpus cases shall be taken within forty-eight hours from notice of the judgment or final order appealed
from. (A.M. No. 01-1-03-SC, 19 June 2001)

The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new trial or reconsideration shall be allowed.

COMMENT:

The appeal shall be taken within:

1. Fifteen (15) days from notice of the judgment or final order appealed from;

2. Thirty (30) days from notice of the judgment or final order where a record on appeal is required;

3. Forty eight (48) hours from notice of the judgment or final order appealed from in habeas corpus
cases.

xxx ________________________________________ xxx _________________________________xxx

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Rule 41 Section 4: Appellate court docket and other lawful fees

Within the period for taking an appeal, the appellant shall pay to the clerk of the court which
rendered the judgment or final order appealed from, the full amount of the appellate court docket and
other lawful fees. Proof of payment of said fees shall be transmitted to the appellate court together with
the original record or the record on appeal.

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 5: Notice of Appeal

The notice of appeal shall indicate the parties to the appeal, specify the judgment or final order
or part thereof appealed form, specify the court to which the appeal is being taken, and state the
material dates showing the timelines of the appeal.

COMMENT:

Notice of Appeal must specify the following matters:

1. The parties to the appeal;

2. Judgment or final order or part thereof appealed from;

3. The court to which the appeal is being taken;

4. The material dates showing the timeliness of the appeal.

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 6: Record on Appeal; form and contents thereof

The full names of all parties to the proceedings shall be stated in the caption of the record on
appeal and it shall include the judgment or final order from which the appeal is taken and, in
chronological order, copies of only such pleadings, petitions, motions and all interlocutory orders as are
related to the appealed judgment or final order for the proper understanding of the issue involved,
together with such data as will show that the appeal was perfected on time. If an issue of fact is to be
raised on appeal, the record on appeal shall include by reference all the evidence, testimonial and
documentary, taken upon the issue involved. The reference shall specify the documentary evidence by
the exhibit numbers or letters by which it was identified when admitted or offered at the hearing, and
the testimonial evidence by the names of the corresponding witnesses. If the whole testimonial and
documentary evidence in the case is to be included, a statement to that effect will be sufficient without
mentioning the names of the witnesses or the numbers or letters of exhibits. Every record on appeal
exceeding twenty (20) pages must contain a subject index.

COMMENT:

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 1. Full names of all the parties to the proceedings stated in the caption of the record;

2. Include the judgment or final order from which the appeal is taken;

3. In chronological order, copies ONLY such pleadings, petitions, motions and all interlocutory
orders as are related to the appealed judgment for the proper understanding of the issue involved;

4. Together with such data as will show that the appeal was perfected on time (Material Data
Rule);

5. Every record on appeal exceeding 20 pages must contain a subject index.

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 7: Approval of record on appeal

Upon the filing of the record on appeal for approval and if no objection is filed by the appellee
within five (days) from receipt of a copy thereof, the trial court may approve it as presented or upon its
own motion or at the instance of the appellee, may direct its amendment by the inclusion of any
omitted matters which are deemed essential to the determination of the issue of law or fact involved in
the appeal from. If the trial court orders the amendment of the record, the appellant, within the time
limited in the order, or such extension thereof as may be granted, or if no time is fixed by the order
within ten (10) days from receipt thereof, shall redraft the record by including therein, in their proper
chronological sequence, such additional matters as the court may have directed him to incorporate, and
shall thereupon submit the redrafted record for approval, upon notice to the appellee, in like manner as
the original draft.

COMMENT:

Procedure if the appeal is through a record on appeal:

1. File record on appeal;

2. Appellee may file an objection within five (5) days from his receipt thereof;

3. If there is no objection the court may:

a. Approve it as presented; OR

b. Direct its amendment on its own or upon motion of the adverse party.

4. If an amendment is ordered the appellant must redraft the record within the time ordered or if
there is no time, within ten (10) days from receipt;

5. Submit the record for approval with notice on the adverse party.

xxx ________________________________________ xxx _________________________________xxx

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Rule 41 Section 8: Joint record on appeal

Where both parties are appellants, they may file a joint record on appeal within the time fixed
by Section 3 of this Rule, or that fixed by the court.

COMMENT:

Where both parties are appellants, they may file a joint record on appeal within the time provided.

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 9: Perfection of appeal; effect thereof

A partys appeal by notice of appeal is deemed perfected as to him upon the filing of the notice
of appeal in due time.

A partys appeal by record on appeal is deemed perfected as to him with respect to the subject
matter thereof upon the approval of the record on appeal filed in due time.

In appeal by notice of appeal, the court loses jurisdiction over the case upon perfection of the
appeals filed in due time and the expiration of the time to appeal of the other parties.

In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof
upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of
the other parties.

In either case, prior to the transmittal of the original record or the record on appeal, the court
may issue orders for the protection and preservation of the rights of the parties which do not involve
any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with Section 2 of Rule 39, and allow withdrawal of the appeal.

COMMENT:

Appeal is deemed perfected

1. BY NOTICE OF APPEAL As to him, upon the filing of the notice of appeal in due time; and

2. BY RECORD ON APPEAL As to him, with respect to the subject matter thereof, upon the
approval of the record on appeal filed in due time.

Effect of a perfected appeal

In APPEALS BY NOTICE OF APPEAL, the court loses jurisdiction over the case upon the perfection of
the appeal filed in due time AND the expiration of the time to appeal of the other parties.

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In APPEALS BY RECORD ON APPEAL, the court loses jurisdiction only over the subject matter
thereof upon approval of the records on appeal filed in due time AND the expiration of the time to appeal
of the other parties.

Residual power/jurisdiction of the court after losing jurisdiction but prior to the transmittal of the
original record or record on appeal:

1. Order execution pending appeal under Rule 39, Sec. 2 (motion for execution was filed before the
expiration of the period to appeal);

2. To issue orders for the preservation of the rights of the parties which do not involve matters
litigated by appeal;

3. To approve compromise prior to the transmittal of the record;

4. Permit appeal by an indigent;

5. Allow withdrawal of the appeal.

The concept of residual jurisdiction of the trial court is available at a stage in which the court is normally
deemed to have lost jurisdiction over the case or the subject matter involved in the appeal. There is no
residual jurisdiction to speak of where no appeal or petition has even been filed (Fernandez vs. Court of
Appeals, 458 SCRA 454)

Duration of Residual Powers

Ordinary Appeal Until the records are transmitted to the appellate court.

Petition for Review Until the Court of Appeals gives due course to the petition.

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 10: Duty of clerk of court of the lower court upon perfection of appeal

Within thirty (30) days after perfection of all the appeals in accordance with the preceding
section, it shall be the duty of the clerk of court of the lower court:

(a) To verify the correctness of the original record or the record on appeal, as the case may be,
and to make a certification of its correctness;

(b) To verify the completeness of the records that will be transmitted to the appellate court;

(c) If found to be incomplete, to take such measures as may be required to complete the
records, availing of the authority that he or the court may exercise for this purpose; and

(d) To transmit the records to the appellate court

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 If the efforts to complete the records fail, he shall indicate in his letter of transmittal the exhibits
or transcripts not included in the records being transmitted to the appellate court, the reason
for their non-transmittal, and the steps taken or that could be taken to have them available.

The clerk of court shall furnish the parties with copies of his letter of transmittal of the records
to the appellate court.

COMMENT:

Within thirty (30) days after perfection of the appeal, it shall be the duty of the clerk of court:

1. To verify the correctness of the original record or record on appeal, as the case may be, and to
make certification of its correctness;

2. To verify the completeness of the records that will be transmitted;

3. If found incomplete, to take such measures as may be required to complete the records;

4. To transmit the records to the appellate court;

5. If the efforts to complete the records fail, he shall indicate in his letter of transmittal;

a. Those that were not included;

b. Reasons for their non-transmittal; and

c. The steps taken or could be taken.

6. The clerk of court shall furnish the parties with copies of his letter of transmittal

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 11: Transcript

Upon the perfection of the appeal, the clerk of court shall immediately direct the stenographers
concerned to attach to the record of the case five (5) copies of the transcripts of the testimonial
evidence referred to in the record on appeal. The stenographers concerned shall transcribe such
testimonial evidence and shall prepare and affix to their transcripts an index containing the names of
the witnesses and the pages wherein their testimonies are found, and a list of the exhibits and the pages
wherein each of them appears to have been offered and admitted or rejected by the trial court. The
transcripts shall be transmitted to the clerk of the trial court who shall thereupon arrange the same in
the order in which the witnesses testified at the trial, and shall cause the pages to be numbered
consecutively.

COMMENT:

Upon perfection of the appeal, the clerk shall direct the stenographer concerned:

365
 1. To attach to the record of the case 5 copies of the transcript of testimonial evidence;

2. Transcribe such testimonial evidence;

3. Shall affix an index containing the names of the witnesses and pages where their testimonies are
found; and

4. List of the exhibits and pages wherein each appears.

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 12: Transmittal

The clerk of the trial court shall transmit to the appellate court the original record or the
approved record on appeal within thirty (30) days from the perfection of the appeal, together with the
proof of payment of the appellate court docket and other lawful fees, a certified true copy of the
minutes of the proceedings, the order of approval, the certificate of correctness, the original
documentary evidence referred to therein, and the original and three (3) copies of the transcripts.
Copies of the transcripts and certified true copies of the documentary evidence shall remain in the lower
court for the examination of the parties.

COMMENT:

The clerk of the trial court shall transmit to the appellate court the original record or approved record on
appeal:

1. Within 30 days from perfection of appeal;

2. Together with proof of payment of the appellate court docket and other lawful fees;

3. Certified copy of the minutes of the proceedings;

4. Order of approval;

5. Certificate of correctness;

6. Original documentary evidence; and

7. Original and three (3) copies of the transcript.

xxx ________________________________________ xxx _________________________________xxx

Rule 41 Section 13: Dismissal of appeal

Prior to the transmittal of the original record or the record on appeal the appellate court, the
trial court may, motu proprio or on motion, dismiss the appeal for having been taken out of time or for
non-payment of the docket and other lawful fees within the reglementary period. (As amended, A.M.
No. 00-2-10-SC, May 2000)
366
COMMENT:

Prior to the transmittal of the original record or the record on appeal, the trial court may, motu proprio or
on motion, dismiss the appeal for

1. Having been taken out of time; and

2. Non-payment of the docket and other lawful fees within the reglementary period.

The requirement regarding the perfection of the appeal within the reglementary period is not only
mandatory but jurisdictional.

Can the trial court dismiss the appeal on the ground that the appeal is dilatory? NO, such ground
can only be passed upon by the appellate court. Otherwise, the trial courts, can easily forestall review of
their decisions (Dasalla vs. Caluag, L-18765, July 31, 1963)

xxx ________________________________________ xxx _________________________________xxx

RULE 42

PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS TO THE COURT OF APPEALS

Nature: This mode of appeal is not a matter of right. It is a matter of discretion on the part of CA on
whether or not to entertain the appeal.

Rule 42 Section 1: How appeal taken; time for filing

A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of
its appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the
same time to the clerk of said court the corresponding docket and other lawful fees, depositing the
amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse party with a copy
of the petition. The petition shall be filed and served within fifteen (15) days from notice of the decision
sought to be reviewed or of the denial of petitioners motion for new trial or reconsideration filed in due
time after judgment. Upon proper motion and the payment of the full amount of the docket and other
lawful fees and the deposit for costs before the expiration of the reglementary period, the Court of
Appeals may grant an additional period of fifteen (15) days only within which to file the petition for
review. No further extension shall be granted except for the most compelling reason and in no case to
exceed fifteen (15) days.

COMMENT:

The party desiring to appeal from a decision of the RTC rendered in the exercise of its APPELLATE
JURISDICTION may:

1. File a verified petition for review with the CA:

a. Within 15 days from notice of decision; or

367
 b. Within 15 days from denial of petitioners Motion for New Trial or MR.

2. Pay the corresponding docket and other lawful fees, and depositing P500 for costs;

3. Furnish the RTC and the adverse party with a copy of the petition.

The CA may grant an additional period of 15 days within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in no case to exceed 15 days.

xxx ________________________________________ xxx _________________________________xxx

Rule 42 Section 2: Form and Contents

The petition shall be filed in seven (7) legible copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall

(a) State the full names of the parties to the case, without impleading the lower courts or
judges thereof either as petitioners or respondents;

(b) Indicate the specific material dates showing that it was filed on time;

(c) Set forth concisely a statement of the matter involved, the issues raised, the specification of
errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the
reasons or arguments relied upon for the allowance of the appeal;

(d) Be accompanied by clearly legible duplicate originals or true copies of the judgments or final
orders of both lower courts, certified correct by the clerk of court of the Regional Trial
Court, the requisite number of plain copies thereof and of the pleadings and other material
portions of the record as would support the allegations of the petition.

The petitioner shall also submit together with the petition a certification under oath that he has
not theretofore commenced any other action involving the same issues in the Supreme Court,
the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of the same; and if he should
thereafter learn that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom.

COMMENT:

THE PETITION shall be filed in seven (7) legible copies, with the original copy intended for the court
being indicated and shall:

1. State the full names of the parties to the case;

368
 2. Indicate the specific material dates showing that it was filed on time;

3. Set forth concisely a statement of the:

a. Matters involved;

b. Issues raised;

c. Specification of errors of fact or law, or both allegedly committed by the RTC; and

d. Reasons or arguments relied upon for the allowance of the appeal;

4. Accompanied by clearly legible duplicate originals or true copies of the judgment or final orders
or both lower courts; and

5. Certificate of non-forum shopping.

Note: A certificate of non forum shopping is required even if a petition for review is not an initiatory
pleading.

xxx ________________________________________ xxx _________________________________xxx

Rule 42 Section 3: Effect of failure to comply with requirements

The failure of the petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and
the contents of and the documents which should accompany the petition shall be sufficient ground for
the dismissal thereof.

COMMENT:

Failure to comply with any of the following requirements shall be sufficient ground for DISMISSAL:

1. Payment of docket and other lawful fees;

2. Deposit for costs;

3. Proof of service of the petition; and

4. Contents of the documents, which should accompany the petition.

xxx ________________________________________ xxx _________________________________xxx

Rule 42 Section 4: Action on the petition

The Court of Appeals may require the respondent to file a comment on the petition, not a
motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration.
369
COMMENT:

THE CA may:

1. Require the respondent to file a comment on the petition, NOT a motion to dismiss, within 10
days from notice; OR

2. Dismiss the petition if it finds the same to be:

a. Patently without merit;

b. Prosecuted manifestly for delay; or

c. The questions raised therein are too unsubstantial to require consideration.

Note: The ground for dismissal of an appeal under Section 1 of Rule 50 are discretionary upon the
appellate court. The very wording of the rule uses the word may instead of shall. This indicates that it
is only directory and not mandatory. Sound discretion must be exercised in consonance with the tenets of
justice and fair play, keeping in mind the circumstances obtaining in each case (Mercury Drug
Corporation vs. De Leon, G.R. No. 165622, October 17, 2008)

xxx ________________________________________ xxx _________________________________xxx

Rule 42 Section 5: Contents of comment

The comment of the respondent shall be filed in seven (7) legible copies, accompanied by
certified true copies of such material portions of the record referred to therein together with other
supporting papers and shall

(a) State whether or no he accepts the statement of matters involved in the petition;

(b) Point out such insufficiencies or inaccuracies as he believes exist in petitioners statement of
matters involved but without repetition; and

(c) State the reasons why the petition should not be given due course. A copy thereof shall be
served on the petitioner.

COMMENT:

Comment of the respondent shall be filed in seven (7) legible copies, accompanied by certified true copies
of such material portions of the record referred to therein together with other supporting papers and shall:

1. State whether or not he accepts the statement of matters involved in the petition;

2. Point out such insufficiencies or inaccuracies as he believes exist in petitioners statement of

matters but without repetition; and

3. Reasons why the petition should not be given due course.

370
A copy of the comment shall be served on the petitioner.

xxx ________________________________________ xxx _________________________________xxx

Rule 42 Section 6: Due course

If upon the filing of the comment or such other pleadings as the court may allow or require, or
after the expiration of the period for the filing thereof without such comment or pleading having been
submitted, the Court of Appeals finds prima facie that the lower court has committed an error of fact or
law that will warrant a reversal or modification of the appealed decision, it may accordingly give due
course to the petition.

COMMENT:

Petition for review is not a matter of right but discretionary on the CA. It may only give due course to
the petition if it shows on its face (CA finds prima facie) that the lower court has committed an error of
fact and or law that will warrant a reversal or modification of the decision or judgment sought to be
reviewed.

xxx ________________________________________ xxx _________________________________xxx

Rule 42 Section 7: Elevation of record

Whenever the Court of Appeals deems it necessary, it may order the clerk of court of the
Regional Trial Court to elevate the original record of the case including the oral and documentary
evidence within fifteen (15) days from notice.

COMMENT:

It is merely discretionary on the CA to order the elevation of the records. This is because until the pettion
is given due course, the trial court may still issue a warrant of execution pending appeal and in some cases
such as ejectment and those of Summary Procedure, the judgments are immediately executory.

It is only when the CA deems it necessary that the Clerk of the RTC will be ordered to elevate the records
of the case

xxx ________________________________________ xxx _________________________________xxx

Rule 42 Section 8: Perfection of appeal; effect thereof

(a) Upon the timely filing of a petition for review and the payment of the corresponding docket
and other lawful fees, the appeal is deemed perfected as to the petitioner.

The Regional Trial Court loses jurisdiction over the case upon the perfection of the appeal
filed in due time and the expiration of the time to appeal of the other parties.

371
 However, before the Court of Appeals gives due course to the petition, the Regional Trial
court may issue orders for the protection and preservation of the rights of the parties which
do not involve any matter litigated by the appeal, approve compromises, permit appeals of
indigent litigants order execution pending appeal in accordance with Section 2 Rule 39, and
allow withdrawal of the appeal.

(b) Except in civil cases decided under the Rules on Summary Procedure, the appeal shall stay
the judgment or final order unless the Court of Appeals, the law, or these Rules shall provide
otherwise.

COMMENT:

1. Deemed perfected as to the petitioner upon the timely filing of the petition for review and
payment of the corresponding fees; and

2. Court loses jurisdiction over the case upon perfection of appeal on time and expiration of the
period to appeal;

Residual Power of the court before the CA gives dues course to the petition (same as in Rule 41
Section 9)

Except in civil cases decided under the Rule on Summary Procedure, the appeals shall stay the judgment
or final order unless the CA, the law, or these Rules shall provide otherwise

xxx ________________________________________ xxx _________________________________xxx

Rule 42 Section 9: Submission for decision

If the petition is given due course, the Court of Appeals may set the case for oral argument or
require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall
be deemed submitted for decision upon the filing of the last pleading or memoranda required by these
Rules or by the court itself.

COMMENT:

If the petition is given due course:

1. Case may be set for oral argument; or

2. The parties may be required to submit memoranda within 15 days from notice;

3. Case shall be deemed submitted for decision upon filing of the last pleading or memorandum.

xxx ________________________________________ xxx _________________________________xxx

RULE 43

372
 APPEALS FROM THE COURT OF TAX APPEALS AND QUASI JUDICIAL AGENCIES TO THE COURT OF
APPEALS

VBJ Notes:

There are also decisions rendered by quasi judicial bodies which are appealable to the Court of
Appeals. As a matter of general proposition, decision of quasi judicial bodies are appealable not to the
Supreme Court but to the Court of Appeals. It is only in a few instances where the decision of a quasi
judicial body is appealable directly to the Supreme Court. And you can count with your fingers these
quasi judicial bodies: Commission on Election; Commission on Audit; Civil Service Commission has been
eliminated from the list of quasi judicial bodies whose decisions are appealable directly to the Supreme
Court. Even decisions of the National labor Relations Commissions are now appealable to the Court of
Appeals, not to the Supreme Court. In so far as the Court of Tax Appeals is concerned, last month the
justices of the Court of Tax Appeals were promoted, and they not occupy the same rank as those of the
Court of Appeals. (2004) Unfortunately, the law which amended that statute creating the Court of
Appeals failed to state whether or not the decision of the Court of Tax Appeals is still appealable to the
Court of Appeals. So there is now a doubt as to whether the decisions of the Court of Tax Appeals are
still appealable to the Court of Appeals or whether they should be appealed now directly to the
Supreme Court. But one thing is certain, the Court of Tax Appeals is now co-equal and coordinate with
the Court of Appeals. But we do not know whether the decisions of the Court of Tax Appeals should be
appealed directly to the Supreme Court. There is nothing mentioned in the law about it. But if we try to
answer that question through pure logic, it would seem that if the Court of Tax Appeal is now the
coordinate or co-equal of the Court of Appeals, the decision of the Court of Tax Appeals should be
reviewable directly by the Supreme Court.

Rule 43 Section 1: Scope

This rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and
from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commissions, Central
Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board,
National Telecommunications Commission, Department of Agrarian Reform under Republic Act NO.
373
6657, Government Service Insurance System, Employees Compensation Commission, Agricultural
Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments,
Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law.

COMMENT:

Appeals from awards, judgment, final orders or resolutions of or authorized by any quasi-judicial agency
in the exercise of its quasi-judicial functions.

These Agencies include

1. The civil Service Commission;

2. Securities and Exchange Commission;

3. Office of the President;

4. Land Registration Authority;

5. Social Service Commission;

6. Civil Aeronautics Board;

7. Bureau of Patents Trademarks and Technology Transfer;

8. National Electrification Administration;

9. Energy Regulatory Board;

10. National Telecommunication Commission;

11. Department of Agrarian Reform under RA 6657;

12. GSIS;

13. Employees Compensation Commission;

14. Agricultural Inventions Board;

15. Insurance Commission;

16. Philippine Atomic Energy Commission;

17. Board of Investments;

18. Construction Industry Arbitration Commission;

19. Voluntary arbitrators authorized by law.

374
A party adversely affected by a decision or ruling of the CTA en banc may file with the Supreme Court a
verified petition for review on certiorari pursuant to Rule 45 ( Sec. 12, RA 9282 and A.M. 07-7-12-SC)

Note: The Court of Appeals has jurisdiction over orders, directives and decisions of the Office of the
Ombudsman in administrative disciplinary cases only. It cannot, therefore, review the orders, directives
or decisions of the Office of the Ombudsman in criminal and non-administrative cases (Golangco vs.
Fung, Office of the Ombudsman, G.R. No. 147640-147762, October 12, 2006)

In criminal cases, the ruling of the Ombudsman shall be elevated to the Supreme Court by way of Rule
65. The Supreme Courts power of review over resolutions and orders of the office of the Ombudsman is
restricted only to determining whether grave abuse of discretion has been committed by it. The court is
not authorized to correct every error or mistake of the Office of the Ombudsman other than grave abuse of
discretion (Villanueva vs. Ople, G.R. No. 165125, Nov. 18, 2005). The remedy is not petition for review
on certiorari under Rule 45 but a petition for certiorari under Rule 65 (Salvador vs. Mapa, G.R.No.
135080, Nov. 28, 2007)

Findings of fact of the agency concerned, when supported by substantial evidence, shall be binding on the
CA.

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 2: Cases not covered

This rule shall not apply to judgments or final orders issued under the Labor Code of the
Philippines.

COMMENT:

Judgments and Final Orders or resolutions of the NLRC are reviewable by the Court of Appeals in an
original action for certiorari under Rule 65 (St. Martin Funeral Home vs. NLRC, G.R. No. 130866, Sept.
16, 1998)

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 3: Where to appeal

An appeal under this Rule may be taken to the Court of Appeals within the period and in the
manner herein provided, whether the appeal involves question of fact, of law, or mixed question of fact
and law.

COMMENT:

Appeal under this Rule may be taken to the CA within the period and in the manner herein provided,
whether the appeal involves question of fact, of law, or mixed question of law and fact.

xxx ________________________________________ xxx _________________________________xxx

375
Rule 43 Section 4: Period of appeal

The appeal shall be taken within fifteen (15) days from notice of the award judgment, final order
or resolution, or from the date of its last publication, if publication is required by law for its effectivity,
or the denial of petitioners motion for new trial or reconsideration duly filed in accordance with the
governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed.
Upon proper motion and the payment of the full amount of the docket fee before the expiration of the
reglementary period, the Court of Appeals may grant and additional period of fifteen (15) days only
within which to file the petition for review. No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days.

COMMENT:

Fifteen (15) days from:

1. Notice of the award, judgment, final order or resolution; or

2. Date of publication, if publication is required by law for its effectivity; or

3. Denial of petitioners MNT or MR (Only 1 MR shall be allowed);

The CA may grant additional 15 days only within which to file the petition for review, upon
proper motion and payment in full of docket fees.

No further extension shall be granted except for the most compelling reason and in no case shall
exceed 15 days.

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 5: How appeal taken

Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the
Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or
agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as
such by the petitioner.

Upon filing of the petition, the petitioner shall pay to the clerk of court of the Court if Appeals
the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment
of docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals
upon a verified motion setting forth valid grounds therefor. If the Court of Appeals denies the motion,
the petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen (15) days
from notice of the denial.

VBJ Notes:

376
 The decision of these judicial bodies should be brought also to the Court of Appeals by way of
petition for review similar to the mode of appeal from the Regional Trial Court acting as an appellate
court. The more important distinctions between an appeal from a Regional Trial Court acting as an
appellate court, from that of a decision of a quasi judicial body appealable to the Court of Appeals is that
the decision of the quasi judicial body will not be stayed by an appeal to the Court of Appeals. So a
quasi-judicial body renders a decision, even if there is an appeal to the Court of Appeals, the quasi
judicial can enforce that decision during the pendency of the appeal. But if the decision is rendered by a
Regional Trial Court acting as an appellate court, and there is an appeal to the Court of Appeals by way
of petition for review, the general rule is that the decision of the Regional Trial Court cannot be
executed during the pendency of the appeal. So an appeal from a decision of the Regional Trial Court
acting as an appellate court will stay the execution of the decision of the Regional Trial Court.

Purely questions of law could be brought to the Court of Appeals when the appeal is from a
quasi judicial body or from a Regional Trial Court acting as an appellate court. So do not be of the
impression that in these appeals, purely questions of law cannot be decided by the Court of Appeals.
The Court of Appeals has authority to decide purely questions of law if the appeal is from a quasi judicial
body or from a Regional Trial Court acting as an appellate court.

Another important distinction between a decision appealed to the Court of Appeals coming
from a quasi-judicial body from that of a decision rendered by a Regional Trial Court acting as an
appellate court is the rule, that when a decision comes from a quasi judicial body, the factual findings of
the quasi judicial body are conclusive upon the Court of Appeals, if supported by substantial evidence.
So generally the Court of Appeals cannot be review factual findings of a quasi judicial body. But if the
decision comes from a Regional Trial Court acting as an appellate court, the factual findings of a Regional
Trial Court are not binding/ are not conclusive upon the Court of Appeals. The Court of Appeals is free to
evaluate factual findings made by a Regional Trial Court even if that Regional Trial Court has decided in
its capacity as an appellate court.

COMMENT:

1. By filing a verified petition for review in seven (7) legible copies;

2. With proof of service of a copy thereof on the adverse party and on the court or agency a quo.

3. Pay to the clerk of court of CA docket and other lawful fees; and

4. Deposit the sum of P500 for costs.

RTC as Appellate Court (Rule 42)

1. Decision is stayed by an appeal.

2. Factual Findings not conclusive to CA.

QUASI JUDICIAL Agencies (Rule 43)

377
 1. Decision is immediately executory; not stayed by an appeal;

2. Factual Findings are conclusive upon CA if supported by substantial evidence.

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 6: Contents of the petition

The petition for review shall

(a) State the full names of the parties to the case, without impleading the court or agencies
either as petitioners or respondents;

(b) Contain a concise statement of facts and issues involved and the grounds relied upon for the
review;

(c) Be accompanied by clearly legible duplicate original or a certified true copy of the award,
judgment, final order or resolution appealed from, together with certified true copies of
such material portions of the record referred to therein and other supporting papers; and

(d) Contain a sworn certification against forum shopping as provided in the last paragraph of
Section 2, Rule 42.

The petition shall state the specific material dates showing that it was filed within the period
fixed herein.

COMMENT:

1. State the full names of the parties to the case;

2. Set forth concisely a statement of the facts and issues involved and the grounds relied upon for
review;

3. Accompanied by clearly legible duplicate originals or certified true copy of the award, judgment,
final order or resolution appealed from;

4. Certificate of non-forum shopping; and

5. State the specific material dates showing that it was filed on time;

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 7: Effect of failure to comply with requirements

The failure of the petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and
the contents of and the documents which should accompany the petition shall be sufficient ground for
the dismissal thereof.
378
COMMENT:

Sufficient ground for dismissal.

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 8: Action on the petition

The Court of Appeals may require the respondent to file a comment on the petition, not a
motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration.

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 9: Contents of comment

The comment shall be filed within ten (10) days from notice in seven (7) legible copies and
accompanied by clearly legible certified true copies of such material portions of the record referred to
therein together with other supporting papers. The comment shall

(a) Point out insufficiencies or inaccuracies in petitioners statement of facts and issues; and

(b) State the reasons why the petition should be denied or dismissed.

A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the Court
of Appeals.

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 10: Due Course

If upon the filing of the comment or such other pleadings or documents as may be required or
allowed by the Court of Appeals or upon the expiration of the period for the filing thereof, and on the
basis of the petition or the records the Court of Appeals find prima facie that the court or agency
concerned has committed errors of fact or law that would warrant reversal or modification of the
award, judgment, final order or resolution sought to be reviewed, it may give due course to the petition;
otherwise, it shall dismiss the same. The findings of fact of the court or agency concerned , when
supported by substantial evidence, shall be binding on the Court of Appeals.

COMMENT:

The foregoing sections are similar to Sections 4,5,6 of Rule 42.

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 11: Transmittal of record

379
 Within fifteen (15) days from notice that the petition has been given due course, the Court of
Appeals may require the court or agency concerned to transmit the original or a legible certified true
copy of the entire record of the proceeding under review. The record to be transmitted may be abridged
by agreement of all parties to the proceeding. The Court of Appeals may require or permit subsequent
correction of or addition to the record.

COMMENT:

Within 15 days from notice that the petition has been given due course, the CA ,may require the agency
concerned to transmit the original or a legible certified copy of the entire record of the proceeding under
review.

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 12: Effect of appeal

The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed
unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.

COMMENT:

General Rule: Appeal shall NOT stay the award, judgment, final order, or resolution sought to be
reviewed.

Exception: When the CA shall direct otherwise upon such terms as it may deem just.

xxx ________________________________________ xxx _________________________________xxx

Rule 43 Section 13: Submission for decision

If the petition is given due course, the Court of Appeals may set the case for oral argument or
require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall
be deemed submitted for decision upon the filing of the last pleading or memorandum required by
these Rules or by the Court of Appeals.

COMMENT:

Similar to Section 9 of Rule 42

xxx ________________________________________ xxx _________________________________xxx

PROCEDURE IN THE COURT OF APPEALS

RULE 44

ORDINARY APPEALED CASES

VBJ Notes:
380
Decision of CA as an appellate court may be assailed using RULE 38

In cases decided by an inferior court, a Regional Trial Court, we also came across Rule 38 as a
remedy, that is relief from judgment, even if that judgment has become final and executory. If the Court
of Appeals has decided a case as an appellate court, and that judgment of the Court of Appeals has
become final and executory, can we also attack or challenge the final and executory judgment of the
Court of Appeals by filing a petition for relief under Rule 38? That is not proper. It is not possible. A
petition for relief under Rule 38 is designed to contest final and executory decision of a trial court. In the
situation that we are discussing the Court of Appeals is not a trial court. It is acting as an appellate court.
So a petition for relief from judgment that will assail the decision of the Court of Appeals as an appellate
court is not proper. In the first place there is no court in our system which is vested with authority to
entertain a petition for relief against a final and executory judgment of the Court of Appeals. So you
might ask, How about the Supreme Court? The Supreme Court is a court of limited jurisdiction, and
there is nothing mentioned in the Constitution or in the old judiciary Act which authorizes the Supreme
Court to entertain a petition for relief from judgment which assails a final and executory decision of the
Court of Appeals. But in that appealed decision of the Court of Appeals, there could be a petition for
relief from judgment that will assail the decision of the Regional Trial Court under Rule 38. So if there is
going to be any petition for relief, it has to be decided against the decision of the Regional Trial Court. It
cannot be directed against the decision of the Court of Appeals.

Rule 44 Section 1: Title of cases

In all cases appealed to the Court of Appeals under Rule 41, the title of the case shall remain as
it was in the court of origin, but the party appealing the case shall be further referred to as the appellant
and the adverse party as the appellee.

COMMENT:

In all cases appealed to the CA under Rule 41, the title of the case shall remain the same but party
appealing the case shall be referred to as appellant and the adverse party as the appellee.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 2: Counsel and guardians

The counsel and guardians ad litem of the parties in the court of origin shall be respectively
considered as their counsel and guardians ad litem in the Court of Appeals. When others appear or are
appointed, notice thereof shall be served immediately on the adverse party and filed with the court.

COMMENT:

Counsel and guardians ad litem in the court of origin, shall be considered as such in the CA.

381
When others appear or are appointed, notice shall be served on the adverse party and filed with the court.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 3: Order of transmittal of record

If the original record or the record on appeal is not transmitted to the Court of Appeals within
thirty (30) days after the perfection of the appeal, either party may file a motion with the trial court,
with notice to the other, for the transmittal of such record or record on appeal.

COMMENT:

If not transmitted within 30 days after perfection of the appeal, either party may file a motion with trial
court, with notice to the other for the transmittal.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 4: Docketing of case

Upon receiving the original record on appeal and the accompanying documents and exhibits
transmitted by the lower court, as well as the proof of payment of the docket and other lawful fees, the
clerk of court of the Court of Appeals shall docket the case and notify the parties thereof.

Within ten (10) days from receipt of said notice, the appellant, in appeals by record on appeal,
shall file with the clerk of court seven (7) clearly legible copies of the approved record on appeal,
together with the proof of service of two (2) copies thereof upon the appellee.

Any unauthorized alteration, omission or addition in the approved record on appeal shall be a
ground for dismissal of the appeal.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 5: Completion of record

Where the record of the docketed case is incomplete, the clerk of court of the Court of Appeals
shall so inform said court and recommend to its measures necessary to complete the record. It shall be
the duty of said court to take appropriate action towards the completion of the record within the
shortest possible time.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 6: Dispensing with complete record

Where the completion of the record could not be accomplished within a sufficient period
allotted for said purpose due to insuperable or extremely difficult causes, the court on its motion or on
motion of any of the parties, may declare that the record and its accompanying transcripts and exhibits

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so far available are sufficient to decide the issues raised in the appeal, and shall issue an order explaining
the reasons for such declaration.

COMMENT:

If completion of the record cannot be accomplished within a sufficient period due to insuperable or
extremely difficult cause:

1. The court on its own motion; or

2. On motion of any of the parties.

May declare that the record and its accompanying transcripts and exhibits are already sufficient to
decide the issues.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 7: Appellants 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) of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies
thereof upon the appellee.

COMMENT:

It shall be filed, within forty five (45) days from receipt of the notice of the clerk of court that all te
evidence is attached to the record. The brief shall be filed in:

1. SEVEN (7) copies of legibly typewritten, mimeographed or printed brief; and

2. With proof of service of two (2) copies thereof upon the appellee.

Failure to file appellants brief on time is a ground for dismissal of the appeal.

If a motion to dismiss an appeal has been filed, it suspends the running of the period for filing the
appellants brief, as the same would be unnecessary should the motion be granted.

The failure of the appellants to make specific assignment of errors in his brief or page references
to the record as required in this section is a ground for dismissal of his appeal.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 8: Appellees brief

Within forty five (45) days from receipt of the appellants 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.
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COMMENT:

It shall be filed similar to appellants brief within Forty-five (45) days from the receipt of the appellants
brief.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 9: Appellants reply brief

Within twenty (20) days from receipt of the appellees brief, the appellant may file a reply brief
answering points in the appellees brief not covered in his main brief.

COMMENT:

WITHIN 20 days from receipt of the appellees brief, appellant may file a reply brief answering points
not covered in his main brief.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 10: Time for filing memoranda in special cases

In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, the parties shall
file, in lieu of briefs, their respective memoranda within a non-extendible period of thirty (30) days from
receipt of the notice issued by the clerk that all the evidence, oral and documentary, is already attached
to the record.

The failure of the appellant to file his memorandum within the period therefor may be a ground
for dismissal of the appeal.

COMMENT:

In certiorari, prohibition, mandamus, quo warranto and habeas corpus cases, parties shall file in lieu of
briefs, their respective memoranda within a non-extendible period of 30 days from receipt of the notice.

The failure of the appellant to file his memorandum within the period therefore may be a ground for
dismissal of the appeal.

BRIEF

1. Ordinary Appeals;

2. Filed within forty-five (45) days;

3. Contents specified rules.

MEMORANDUM

1. Certiorari, Prohibition, Mandamus, Quo Warranto and Habeas Corpus cases;

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 2. Within thirty (30) days;

3. Shorter, briefer, only one issue involved no subject index or assignment of errors just facts and
law applicable.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 11: Several appellants or appellees or several counsel for each party

Where there are several appellant or appellees, each counsel representing one or more but not
all of them shall be served with only one copy of the briefs. When several counsel represent one
appellant or appellee, copies of the brief may be served upon any of them.

COMMENT:

Several appellants or appellees each counsel representing one or more but not all of them shall be
served with only ONE (1) copy of the briefs.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 12: Extension of time for filing briefs

Extensions of time for the filing of briefs will not be allowed, except for good and sufficient
cause, and only if the motion for extension is filed before the expiration of the time sought to be
extended.

COMMENT:

General Rule: NOT ALLOWED

Exception: For good and sufficient cause and only if the motion for extension is filed before the
expiration of the time sought to be extended.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 13: Contents of appellants brief

The appellants 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
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 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 if the issues of fact or law to be submitted to the court for its
judgment;

(f) Under the heading Argument, the appellants argument 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 appellants brief shall contain, as an
appendix, a copy of the judgment or final order appealed from.

COMMENT:

1. 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;

2. Assignment of errors;

3. Under heading of Statement of the Case clear and concise statement of the nature of the action,
summary of the proceedings, appealed rulings and orders of the court, nature of the judgment and
any matters necessary to an understanding of the nature of the controversy;

4. Under Statement of Facts, clear and concise statement in a narrative form of the facts admitted
by both parties and of those in controversy;

5. Clear and concise statement of the issues of fact or law;

6. Under the heading Argument appellants argument on each assignment of error with page
reference to the record. Authorities relied upon shall be cited;

7. Under the heading Relief, specification of the order or judgment which the appellant seeks; and

8. In cases not brought up by record on appeal, appellants brief shall contain, as an appendix, a copy
of the judgment or final order appealed from.

xxx ________________________________________ xxx _________________________________xxx

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Rule 44 Section 14: Contents of appellees brief

The appellees 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, textbook 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 appellants brief, or under the heading Counter-Statement of
Facts, he shall point out such insufficiencies or inaccuracies as he believes exist in the
appellants statement of facts with references to the pages of the record in support thereof,
but without repetition of matters in the appellants 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.

COMMENT:

1. 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;

2. Under the heading Statement of Facts appellee shall state that he accepts the statement of facts
in the appellants brief, or under the heading Counter Statement of Facts, point out such
insufficiencies or inaccuracies as he believes exist in the appellants statement of facts; and

3. Under the heading Argument, appellee shall set forth his arguments in the case on each
assignment of error with page references to the record. Authorities relied upon shall be cited.

xxx ________________________________________ xxx _________________________________xxx

Rule 44 Section 15: Questions that may be raised on appeal

Whether or not the appellant has filed a motion for new trial in the court below, he may include
in his assignment of errors any question of law or fact that has been raised in the court below and which
is within the issues framed by the parties.

COMMENT:

THE APPEAL can raise only question of law or fact that:

1. Has been raised in the court below; and

2. Which is within the issues framed by the parties

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Rule: The reversal of a judgment on appeal is generally binding only on the parties in the appealed case
and does not affect or inure to the benefit of those who did not join or were not made parties to the appeal.

Exception: Where the rights of such parties are so interwoven and dependent on each other as to be
inseparable due to community of interest.

xxx ________________________________________ xxx _________________________________xxx

RULE 45

APPEAL BY CERTIORARI TO THE SUPREME COURT

VBJ Notes

Challenging the decision of the CA using RULE 45

Aside from new trial or motion for reconsideration, the only remedy that is available to the
movant to the aggrieved party to challenge the decision of the Court of Appeals will be a petition for
review on certiorari under Rule 45. And as we said, in a petition for review on certiorari under Rule 45,
the only issues that can be raised before the Supreme Court in a petition under Rule 45 are questions of
law. And it is within the discretion of the Supreme Court whether or not to entertain that petition. Even
if the only issue raised in a petition for review on certiorari is purely a question of law, there is still no
assurance that the Supreme Court will give due course to the petition. Under Rule 45, it is also the
burden of the petitioner to convince the Supreme Court that the question of law raised have been
decided by the Court of Appeals in a manner that is inconsistent with established jurisprudence. So
even if the petitioner raises question of law in a petition for review, but this decision of the Court of
Appeals is consistent with jurisprudence, the Supreme Court will still refuse to give due course to the
petition. So the fact that only question of law are raised in a petition for review on certiorari is not
guarantee that the Supreme Court will give due course to the petition. Are there exceptions to this
Rule? Well just like in any other principle of procedure, there are also exceptions to this Rule, and I
suggest that you memorize even only five of these exceptions, that is, instances when the Supreme
Court can entertain factual questions raises in a petition for review on certiorari. As of now, I think there
are eleven exceptional instances where petitioner may be able to convince the Supreme Court to
entertain his petition for review on certiorari even if he raises factual questions in that petition for
review on certiorari. Some of these instances are: 1.) When the Court of Appeals in deciding these
factual issues committed a grave abuse of discretion; 2.) When the factual findings of the Court of
Appeals and the Challenging the decision of the CA using RULE 45

Aside from new trial or motion for reconsideration, the only remedy that is available to the
movant to the aggrieved party to challenge the decision of the Court of Appeals will be a petition for
review on certiorari under Rule 45. And as we said, in a petition for review on certiorari under Rule 45,
the only are in conflict with one another; 3.) When the factual findings are based on speculation or

388
surmise; 4.) When the factual findings of the Court of Appeals contravene the evidence on record
submitted by the parties.

Can we also avail of a motion for reconsideration to challenge a decision rendered by the SC? What
about a motion for new trial?

After the case is decided by the Supreme Court, since we are talking about the highest court of
the land, no further appeal of course could be had to any other body of the government. But a while ago
we mentioned, that while the case is pending before the Court of Appeals, the aggrieved party can ask
for a reconsideration by filing a motion for reconsideration. He can also ask for a new trial by filing a
correlative motion. Can we also avail of a motion for reconsideration to challenge a decision rendered
by the Supreme Court? The answer is YES. An aggrieved party can file a motion for reconsideration to
challenge a decision of the Supreme Court. Can the aggrieved party file a motion for new trial? That is
NOT ALLOWED. The Supreme Court will not entertain motion for new trial if founded on newly
discovered evidence for the simple reason that the Supreme Court is not a trier of facts. The Court of
Appeals can entertain a motion for new trial on newly discovered evidence because the Court of
Appeals is a court that can try factual disputes. The same is not true with respect to the Supreme Court.

A decision of a division of the Supreme Court is a decision of the Supreme Court

Since the Supreme Court acts in divisions, can we not challenge the judgment rendered by the
first division, by asking the court to review the decision of the first division to the Supreme Court en
banc, that is, acting now en banc? Well according to the Supreme Court, a decision of the first division of
the Supreme Court is a decision of the Supreme Court. It is only a decision of the first division. So a
decision of the first division should not be reviewed by the Supreme Court en banc, otherwise, we are
going to create another appeal from a division of the Supreme Court to the Supreme Court en banc.

Equity Jurisdiction

Supposing the decision of the Supreme Court becomes final and executory because a motion for
reconsideration has been denied, but we all know for instance/ the public knows that there is something
wrong with the decision, could we still invent a remedy, an extraordinary remedy to challenge the
decision of the Supreme Court which has long become final and executory? Well in one case, the
Supreme Court allowed a challenge to its own decision, although it has become final and executory, by
invoking what the Supreme Court called its EQUITY JURISDICTION. I really do not know the meaning of
equity jurisdiction of the Supreme Court, but the Supreme Court may have acted properly in this
situation. You remember that criminal cases where a person was sentenced to death? He was about to
be executed but it turned out that the accused was insane. In other words, the Challenging the decision
of the CA using RULE 45

Aside from new trial or motion for reconsideration, the only remedy that is available to the
movant to the aggrieved party to challenge the decision of the Court of Appeals will be a petition for
review on certiorari under Rule 45. And as we said, in a petition for review on certiorari under Rule 45,

389
the only should have acquitted the accused by reason of the mental condition of the accused. On
automatic appeal, the case reached the Supreme Court. The Supreme Court reviewed the decision of
the of the Regional Trial Court and affirmed the decision rendered by the trial court. So the accused was
scheduled for execution. Then came out overwhelming evidence to show that the accused was really
insane. He was not in a position to undergo a trial court or even before the Supreme Court. Note that
the decision had long become final and executory. In fact his execution was already scheduled by the
Bureau of Prisons. A petition for certiorari under Rule 65 was filed to challenge the precisely the validity
of a final and executory decision of the Supreme Court, and the Supreme Court entertained this petition
and issued an order directing that the execution of the accused should not be implemented. That seems
to be the meaning of equity of jurisdiction of the Supreme Court. An extraordinary problem requires
extraordinary remedy as long as justice could be done by the Supreme Court.

Continuing with appeals, the last time we said that we should pay attention to the concept of
erroneous appeal and improper appeal because the consequences may not be the same. That is, the
consequences of improper appeal and that of erroneous appeal are not the same, depending on
whether the appellate court is the Supreme Court or the Court of Appeals.

We also mentioned last time the third mode of appeal in civil cases, and that is the appeal under
Rule 45 appeal by certiorari to the Supreme Court. In appeal by certiorari to the Supreme Court under
Rule 45, you should now include final orders and decisions of the Court of Appeals, Regional Trial Court,
the Sandiganbayan and the Court of Tax Appeals. So decisions of the Court of Tax Appeals are no longer
reviewable by the Court of Appeals. But when it comes to decision of the Court of Tax Appeals, the
decision must be one that has been rendered en banc by the Court of Tax Appeals. A decision of the
Court of Tax Appeals rendered by a division of the Court of Tax Appeals cannot be brought before the
Supreme Court under Rule 45. If the decision is rendered only by a division of the Court of Tax Appeals,
that decision of a particular division is appealable to the Court of Tax Appeals en banc. So from one
division of the Court of Tax Appeals, there could be an appeal to the Court of Tax Appeals en banc. And
then from the decision of the Court of Tax Appeals en banc we can go up to the Supreme Court under
Rule 45, that is petition for review on certiorari.

Certiorari under RULE 45, RULE 64 and RULE 65

A favorite question of examiners when it comes to Rule 45 is a comparison between certiorari

under Rule 45 certiorari under Rule 64 and certiorari under Rule 65. You will note that these three rules
refer to certiorari. The title of 45 is appeal by certiorari. 64 on the other hand, it its title, does not
mention the word certiorari, just review of final orders and resolutions of the Commission on Elections
and the Commission on Audit. But in section 1 of Rule 64 it is provided that the review is carried out
through a certiorari under Rule 65. So even in Rule 64 the word certiorari is used as a mode of appeal to
challenge a final order or resolution of the Commission on Elections and Commission on Audit. Of
course, Rule 65 refers to the Special Civil Actions of certiorari, prohibition, and mandamus.

390
 Are there differences, among the terms certiorari used in 45, 64 and 65? The most obvious
difference is that in 45, certiorari is a mode of appeal. In fact it is the last mode of appeal enumerated in
the rules in civil actions. The filing of a petition for review on certiorari of decisions rendered by the
Court of Appeals, the Regional Trial Court, Sandiganbayan and the Court of Tax Appeals and other
courts, whose decision could be reviewed by the Supreme Court. In Rule 64, it is also a mode appeal but
the petition used is a petition under Rule 65. Although we use a petition under Rule 65, it is nonetheless
a mode of review because the purpose is to review a final order or resolution of the Commission on
Elections or of the Commission on Audit.

Another noticeable difference among these three rules is that in Rule 45, the appellant is
expressly required not to implead the court as a party. So under Rule, 45, if the decision is rendered by
the Court of Appeals, the petition for review on certiorari should not implead the Court of Appeals. The
parties will remain to be the same. So a petition for review under Rule 45 will not be entitled X
Petitioner vs. B Respondent and the Court of Appeals Public Respondent. That is not allowed under
Rule 45. The court whose decision is being challenged should not be impleaded in a petition for review
on certiorari under Rule 45. But in Rule 64 although certiorari here is used as a mode of appeal. Rule 64
requires that the Commission on Elections or the Commission on Audit should be impleaded as a
respondent. So in Rule 64 we have a petition for certiorari where there is a private respondent and a
public respondent, and the public respondent is either the Commission on Election or the Commission
on Audit. In Rule 65 the court or the quasi judicial body whose order or decision is being challenged
should also be impleaded. So in Rule 65 there is also a public respondent and a private respondent.

Another noticeable difference among these three rules is that Rule 45 the period to file the
petition for review on certiorari is a very short 15-day period. Of course it is extendible. But in Rule 64,
the period is 30 days, and in Rule 65 the period is 60 days.

In both 45 and 64, questions of law should be raised, but in Rule 65 the question that should be
raised is a question of jurisdiction. You might ask Dont we consider question of jurisdiction as a
question of law? Of course a question of jurisdiction is always a question of law. So the scope in Rule 65
is very limited. It is a question of law to ones involving jurisdiction. But in Rule 64 as well as in Rule 45,
any question of law could be brought which does not necessarily involve the jurisdiction of the court.

In Rule 45 since it is just a mode of appeal, the order or the decision that is being assailed cannot
be executed following the general rule in Rule 39 that only final and executory decisions are supposed
to be executed as a matter of right. But in Rule 64, the decision of the Commission on Elections or of
the Commission on Audit will not be stayed by the filing of this petition. In other words, notwithstanding
the filing of a petition under 64, the decision of the public respondents could be executed unless the
Supreme Court issues an injunctive relief in favor of the petitioner. In Rule 65 also, the filing of this
special civil action of certiorari will not stay the proceedings in the trial. So notwithstanding the filing of
a petition for certiorari under Rule 65, the trial court could validly continue the trial of that case, unless
again the court issues a temporary restraining order or a writ of preliminary injunction.

391
 Another noticeable difference among these three rules is that in 45 the appellate court referred
to is always the Supreme Court. This is an appeal by certiorari to the Supreme Court. The same is true
with Rule 64 this is a mode of review of decisions rendered by the Commission on Elections to the
Supreme Court. But in Rule 65 the court that reviews the resolutions, order even a decision is not
necessarily the Supreme Court. If we are going to refer to BP 129, aside from the Supreme Court, a
petition for certiorari could also fall within the original jurisdiction of the Court of Appeals, or of a
Regional Trial Court. In fact, it is in Rule 65 where we follow that doctrine of hierarchy of courts because
there is concurrence among the Supreme Court, the Court of Appeals and the Regional Trial Court over
these petitions for certiorari, prohibition and mandamus.

RTC, Sandiganbayan, CTA en banc or CA renders decision

Any party files a petition for review on certiorari within fifteen (15) days from notice of final judgment or
order of lower court or notice of denial of motion for reconsideration or new trial.

Appellant serves copies of petition on adverse parties and to the lower court, and pay the corresponding
docket fees.

SC may dismiss the petition or require the appellee to comment

If given due course, parties may submit memoranda

SC may affirm, reverse, or modify judgment of the lower court

Rule 45 Section 1: Filing of petition with Supreme Court

A party desiring to appeal by certiorari from a judgment, final order or resolution of the Court of
Appeals, the Sandiganbayan, The Court of Tax Appeals, whenever authorized by law, may file with the
Supreme Court a verified petition for review on certiorari. The petition may include an application for a
writ of preliminary injunction or other provisional remedies and shall raise only question of law, which
392
must be distinctly set forth. The petitioner may seek the same provisional remedies by verified motion
filed in the same action or proceeding at any time during its pendency. (As amended by A.M. No. 07-7-
12-SC, December 12, 2007)

COMMENT:

Appeals to the SC can be taken from a judgment or final order or resolution of the CA, the
Sandiganbayan, the Court of Tax Appeals en banc, the RTC or such other courts as may be authorized by
law and only by verified petition for review on certiorari.

This petition may include an application for a writ of preliminary injunction or other provisional
remedies. The petitioner may seek the same provisional remedies by VERIFIED MOTION filed in the
same action or proceeding at any time during its pendency (as amended by A.M. 07-7-12-SC)

EXCEPT as provided in criminal cases in Sec. 13 (c) Rule 124 in relation to Sec. 3 (e) Rule 122,
whenever the CA imposes reclusion perpetua, life imprisonment or a lesser penalty, judgment may be
appealed to the SC by NOTICE OF APPEAL filed with the CA.

Note: The petition shall raise only QUESTION OF LAW which must be distinctly set forth.

QUESTION OF LAW

1. Doubt or controversy as to what the law is on certain facts;

2. If the appellate court can determine the issue raised without reviewing or evaluating the evidence.

3. Can involve questions of interpretation of the law with respect to certain set of facts.

QUESTION OF FACT

1. Doubt or difference as to the truth or falsehood of facts, or as to probative value of the evidence
presented;

2. The determination involves evaluation or review of evidence;

3. Query invites the calibration of the whole evidence considering mainly the credibility of
witnesses, existence and relevancy of specific surrounding circumstances and relation to each
other and to whole probabilities of the situation.

Note: The Supreme Court is not a trier of facts, and is not to review or calibrate the evidence on record.
Moreover, findings of facts of the trial court, as affirmed on appeal by the Court of Appeals, are
conclusive on the Court. (Boston Bank of the Philippines vs. Manalo, G.R. No. 158149, Feb. 9, 2006)

It has to be emphasized that it is not the duty of the Supreme Court to review, evaluate and weigh the
probative value of the evidence adduced before the lower courts (Frondarina vs. Malazarte, G.R. No.
148423, Dec. 6, 2006)

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General Rule: The findings of fact of the CA are final and conclusive and cannot be reviewed on appeal
to the SC.

Exceptions to conclusiveness of Facts

1. When finding is grounded entirely on speculations, surmise or conjecture;

2. When inference made is manifestly absurd, mistaken or impossible;

3. When the judgment is premised on a misrepresentation of facts;

4. When there is grave abuse of discretion in the appreciation of facts;

5. When the findings of fact are conflicting;

6. When the CA in making its findings went beyond the issues of the case and the same is contrary
to both the admissions of appellants and appellees;

7. When the findings of fact of the CA are at variance with those of the trial court, the SC has to
review the evidence in order to arrive at the correct findings based on the record;

8. When the findings of fact are conclusions without citation of specific evidence on which they are
based;

9. When the facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondents;

10. The findings of fact of the CA is premised on the supposed evidence and is contradicted by the
evidence on record; and

11. When certain material facts and circumstances have been overlooked by the trial court which, if
taken into account, would alter the result of the case in that they would entitle the accused to
acquittal.

xxx ________________________________________ xxx _________________________________xxx

Rule 45 Section 2: Time for filing; extension

The petition shall be filed within fifteen (15) days from notice of the judgment or final order or
resolution appealed from, or of the denial of the petitioners motion for new trial or reconsideration
filed in due time after notice of the of the judgment. On motion duly filed and served, with full payment
of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary
period, the Supreme Court may for justifiable reasons grant an extension of thirty (30) days only within
which to file the petition.

COMMENT:

394
Within fifteen (15) days from notice of the judgment or final order or resolution appealed from or denial
of the petitioners motion for new trial or MR filed in due time.

The SC may for justifiable reasons grant an extension of 30 days only within which to file the petition
provided that the motion for extension is duly filed and served, with full payment of the docket and other
lawful fees and the deposit of costs before the expiration of the reglementary period.

xxx ________________________________________ xxx _________________________________xxx

Rule 45 Section 3: Docket and other lawful fees; proof of service

Unless he has theretofore done so, the petitioner shall pay the corresponding docket and other
lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for costs at
the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned and
on the adverse party shall be submitted together with the petition.

COMMENT:

Unless he has to theretofore done so, petitioner shall pay the corresponding docket and other lawful fees
to the clerk of court of SC and deposit P500 for costs.

Proof of service of a copy thereof on the lower court concerned and on the adverse party shall be
submitted together with the petition.

xxx ________________________________________ xxx _________________________________xxx

Rule 45 Section 4: Contents of petition

The petition shall be filed (18) copies, with the original copy intended for the court being
indicated as such by the petitioner, and shall:

(a) State the full name of the appealing party as the petitioner and the adverse party as
respondent, without impleading the lower courts or judges thereof either as petitioners or
respondents;

(b) Indicate the material dates showing when notice of the judgment or final order or resolution
subject thereof was received, when a motion for new trial or reconsideration, if any was
filed and when notice of the denial thereof was received;

(c) Set forth concisely a statement of the matters involved, and the reasons or arguments relied
on for the allowance of the petition;

(d) Be accompanied by a clearly legible duplicate original or a certified true copy of the
judgment or final order or resolution certified by the clerk of court a quo and the requisite
number of plain copies thereof, and such material portions of the record as would support
the petition; and

395
 (e) Contain a sworn certification against forum shopping as provided in the last paragraph of
Section 2 Rule 42;

COMMENT:

THE PETITION shall be filed in eighteen (18) copies and shall:

1. State the full names of the appealing party as the petitioner and the adverse party as respondent;

2. Indicate the specific material dates showing that it was filed on time;

3. Set forth concisely a statement of the :

a. Matters involved;

b. Reasons or arguments relied upon for the allowance of the appeal;

4. Accompanied by clearly legible duplicate original or certified true copy of the judgment or final
order or resolution; and

5. Contain a certificate of non-forum shopping.

xxx ________________________________________ xxx _________________________________xxx

Rule 45 Section 5: Dismissal or denial of petition

The failure of the petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, deposit for costs, proof of service of the petition and the
contents of and the documents which should accompany the petition shall be sufficient ground for the
dismissal thereof.

The Supreme Court may on its own initiative deny the petition on the ground that the appeal is
without merit, or is prosecuted manifestly for delay, or that the questions raised therein are to
substantial to require consideration.

COMMENT:

1. Failure of the petitioner to comply with:

a. The payment of the docket or other lawful fees,

b. Deposit for costs;

c. Proof of service, and

d. The contents of and the documents which would accompany the petition;

2. Appeal is without merit;

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 3. Is prosecuted manifestly for delay; or

4. That the questions raised therein are too unsubstantial to require consideration.

Note: SC MAY dismiss the petition motu proprio

xxx ________________________________________ xxx _________________________________xxx

Rule 45 Section 6: Review discretionary

A review is not a matter of right, but of sound judicial discretion, and will be granted only when
there are special and important reasons therefor. The following, while neither controlling nor fully
measuring the courts discretion, indicate the character of the reasons which will be considered:

(a) When the court a quo has decided a question of substance, not theretofore determined by
the Supreme Court, or has decided it in a way probably not in accord with law or with the
applicable decisions of the Supreme Court; or

(b) When the court a quo has so far departed from the accepted and usual course of judicial
proceedings, or so far sanctioned such departure by a lower court, as to call for an exercise
of the power of supervision.

COMMENT:

Review will be granted only when there are special and important reasons therefore:

The following, while neither controlling nor fully measuring the courts discretion, indicate the character
of the reasons which will be considered:

1. Court a quo has decided a question of substance, not theretofore determined by the SC, or has
decided it in a way probably not in accord with law or with the applicable decisions of the SC; or

2. Court a quo has so far departed from the accepted and usual course of judicial proceedings, or so
far sanctioned such departure by a lower court, as to call for an exercise of the power of
supervision.

xxx ________________________________________ xxx _________________________________xxx

Rule 45 Section 7: Pleadings and documents that may be required; sanctions

For purposes of determining whether the petition should be dismissed or denied pursuant to
Section 5 of this Rule, or where the petition is given due course under Section 8 hereof, the Supreme
Court may require or allow the filing of such pleadings, briefs, memoranda or documents as it may deem
necessary within such periods and under such conditions as it may consider appropriate, and impose the
corresponding sanctions in case of non-filing or unauthorized filing of such pleadings and documents or
non-compliance with the conditions therefor.

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COMMENT:

For purposes of determining Sec. 5 or Sec. 8, SC may required or allow the filing of such pleadings,
briefs, memoranda or documents within such periods and under such conditions as it may consider
appropriate.

SC may impose the corresponding sanctions in case of non-filing or unauthorized filing or non-
compliance with the conditions.

xxx ________________________________________ xxx _________________________________xxx

Rule 45 Section 8: Due course; elevation of records

If the petition is given due course, the Supreme Court may require the elevation of the complete
record of the case or specified parts thereof within fifteen (15) days from notice.

xxx ________________________________________ xxx _________________________________xxx

Rule 45 Section 9: Rule applicable to both civil and criminal

The mode of appeal prescribed in this Rule shall be applicable to both civil and criminal cases,
except in criminal cases where the penalty imposed is death, reclusion perpetua, or life imprisonment.

COMMENT:

Appeal by certiorari (Rule 45)

1. Petition is based on question of law;

2. It is a mode of appeal;

3. Involves the review of the judgment award or final order on the merits;

4. Filed within fifteen (15) days from notice of judgment, final order or resolution appealed from;

5. Stays the judgment or order appealed from;

6. The appellant and the appellee are the original parties to the action, and the lower court or quasi
judicial agency is not impleaded;

7. Motion for reconsideration is not required;

8. The court is in the exercise of its appellate jurisdiction and power of review.

9. The petition shall be filed with the Supreme Court;

Review of Judgments, Final Orders or Resolutions (Rule 64)

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 1. Petition is based on question of law;

2. It is a mode of appeal but the petition used is Rule 65.

3. Involves the review of judgment, final orders, or resolutions of COMELEC and COA;

4. Filed within (30) days from notice of judgment, final order, or resolution sought to be reviewed;

5. Shall not stay the execution unless the SC shall direct otherwise upon such terms as it may deem
just.

6. The COMELEC and COA shall be public respondents who are impleaded in the action;

7. The filing of a motion for reconsideration/ new trial if allowed under the procedural rules of the
Commission, shall interrupt period fixed.

8. The court is in the exercise of its appellate jurisdiction and power of review;

9. The petition shall be filed with the Supreme Court.

Petition for Certiorari (Rule 65)

1. Petition is based on questions of jurisdiction;

2. It is a mode of review;

3. Directed against an interlocutory order of the court or where there is no appeal or any other plain,
speedy or adequate remedy;

4. Filed not later than 60 days from notice of judgment, order or resolution sought to be reviewed;

5. Unless a writ of preliminary injunction or temporary restraining order is issued, does not stay the
challenged proceeding.

6. The judge, court, quasi-judicial agency, tribunal, corporation, board, officer, or person shall be
public respondents who are impleaded in the action;

7. Motion for reconsideration or for new trial is required; if a motion for reconsideration or new trial
is filed, the period shall not only be interrupted but another 60 days shall be given to the
petitioner.

8. Court exercises original jurisdiction;

9. The petition shall be filed with the RTC, CA, Sandiganbayan, and COMELEC.

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Note: As a rule, a party cannot file a petition both under Rules 45 and 65 of the Rules of Court because
said procedural rules pertain to different remedies and have distinct applications. The remedy of appeal
under Rule 45 and an original action for certiorari under Rule 65 are MUTUALLY EXCLUSIVE and not
alternative or cumulative. Thus, a party should not join both petitions in one pleading. When a party
adopts an improper remedy his petition may be dismissed outright. (Nagkakaisang Mamumuo sa PICOP
Resources Inc. vs. Court of Appeals, G.R. Nos. 148839-40, Nov. 2, 2006)

However, the Court may set aside technicality for justifiable reasons when the petition before the court is
clearly meritorious and filed on time both under Rules 45 and 65. In accordance with the liberal spirit
which pervades the Rules of Court and in the interest of justice, the Court may treat the petition as having
been filed under Rule 45 (International Corporate Bank vs. CA, G.R. No. 129910, Sept. 5, 2006)

Note: Rule on Writ of Amparo and Habeas Data

Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal
may raise question of fact or law or both. The period of appeal shall be five (5) working days from the
date of notice of the judgment or order.

RULE 46

ORIGINAL CASES

Rule 46 Section 1: Title of Cases

In all cases originally filed in the Court of Appeals, the party instituting the action shall be called
the petitioner and the opposing party the respondent.

Rule 46 Section 2: To what actions applicable

This Rule shall apply to original actions for certiorari, prohibition, mandamus, and quo warranto.

Except as otherwise provided, the actions for annulment of judgment shall be governed by Rule
47, for certiorari, prohibition and mandamus by Rule 65, and for quo warranto by Rule 66.

Rule 46 Section 3: Contents and filing of petition; effect of non-compliance with requirements

The petition shall contain the full names and actual addresses of all the petitioners and
respondents, a concise statement of the matters involved, the factual background of the case, and the
grounds relied upon for the relief prayed for.

In actions filed under Rule 65, the petition shall further indicate the material dates showing
when notice of the judgment or final order or resolution subject thereof was received, when a motion
for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received.

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 It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the
respondent with the original copy intended for the court indicated as such by the petitioner, and shall
be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order,
resolution, or ruling subject thereof, such material portions of the record as are referred to therein, and
other documents relevant or pertinent thereto. The certification shall be accomplished by the proper
clerk of court or by his duly authorized representative, or by the proper officer of the court, tribunal,
agency or office involved or by his duly authorized representative. The other requisite number of copies
of the petition shall be accompanied by clearly legible plain copies of all documents attached to the
original.

The petitioner shall also submit together with the petition a sworn certification that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court of
Appeals or different division thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn that a similar action
or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
division thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days therefrom.

The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and
deposit the amount of P500.00 for costs at the time of the filing of the petition.

The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient
ground for the dismissal of the petition.

Rule 46 Section 4: Jurisdiction over person of respondent, how acquired

The court shall acquire jurisdiction over the person of the respondent by the service of him of its
order or resolution indicating its initial action on the petition or by his voluntary submission to such
jurisdiction.

Rule 46 Section 5: Action by the court

The court may dismiss the petition outright with specific reasons for such dismissal or require
the respondent to file a comment on the same within ten (10) days from notice. Only pleadings required
by the court shall be allowed. All other pleadings and papers may be filed only with leave of court.

Rule 46 Section 6: Determination of factual issues

Whenever necessary to resolve factual issues, the court itself may conduct hearings thereon or
delegate the reception of the evidence on such issues to any of its members or to an appropriate court,
agency or office.

Rule 46 Section 7: Effect of failure to file comment

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 When no comment is filed by any of the respondents, the case may be decided on the basis of
the record, without prejudice to any disciplinary action which the court may take against the
disobedient party.

RULE 47

ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS

VBJ Notes:

Embodied in these various rules of appeal, that is from Rule 40 up to Rule 56, is a rule which has
nothing to do with appeals, and we are referring to Rule 47, that is annulment of judgment. Although it
seems to be a part of the Rules for Appeals, Rule 47 speaks about a remedy, which has nothing to do
with appeals. Annulment of judgment is not a mode of appeal. It is an independent civil action although
the relief which the petitioner seeks in this petition is to set aside and nullify a final and executory
judgment.

Is there a conflict between Rule 47 Section 2: Grounds for annulment and Rule 132 Section 29: How
judicial record impeached

In Rule 47 the grounds for annulment of judgment are absence of jurisdiction and extrinsic
fraud. When it comes to jurisdiction, it is absence of jurisdiction over the subject matter and also
absence of jurisdiction over the person of the defendant. But if we go to the Rules on Evidence, that is
Rule 132. I think it is section 29, Rule 132 Section 29 refers to the subject of impeachment of judicial
records. And in that subject of impeachment of judicial records, there are three grounds mentioned by
the Rules of Court, that is to impeach a judicial record. These three grounds are lack of jurisdiction,
extrinsic fraud and collusion. So is there a conflict between Rule 132 section 29 and Rule 47 when it
comes to annulment of judgment? When Rule 132 speaks about impeachment of a judicial records, the
procedure for the impeachment referred to is also annulment. We impeach a judicial record, a judgment
of the court, by filing an action to set aside or to nullify the judicial record. So in so far as the manner by
which the impeachment could be carried out, there is no conflict between Rule 132 section29 and Rule
47. The seeming conflict lies in the grounds available to set aside and annul a judgment. Again in Rule
47, there are two grounds, that is absence of jurisdiction which refers to absence of jurisdiction over the
person and the subject matter, and extrinsic fraud. Whereas in Rule 132 there are three grounds
mentioned to impeach a judicial record, that is lack of jurisdiction, fraud, and collusion between the
parties.

Extrinsic Fraud under Rule 47 is broad enough to include collusion

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 Is it possible then for a petitioner to commence a petition for the annulment of a decision based
on collusion, which is not enumerated in 47? The answer is YES. The term extrinsic fraud in Rule 47 is
broad enough to include collusion as a basis for the annulment of judgment. So there is really no conflict
between the provisions of Rule 132 section 29, and Rule 47.

What was the basis of the Supreme Court in incorporating Rule 47 in the 1997 Rules? What about the
basis for incorporating Section 10 of Rule 47?

Well the basis of course is BP 129. If you will recall, the Court of Appeals under BP 129 has
exclusive original jurisdiction to entertain a petition for annulment of a judgment of a Regional Trial
Court. So that is part of substantive law. But in Rule 47, the last section speaks about annulment of
judgment rendered by an inferior court, which is not expressly covered by BP 129. Now what is the basis
of incorporating the last section of Rule 47, which empowers a Regional Trial Court to annul a judgment
rendered by an inferior court given that BP 129 mentions nothing about the vesting of this power to a
Regional Trial Court? The basis of Rule 47 in giving to a Regional Trial Court the authority to annul a
judgment rendered by an inferior court is the fact that a Regional Trial Court is a court of general
jurisdiction. So a case involving annulment of judgment rendered by an inferior court is an action, which
is not assigned to any other court. And therefor this case should be cognizable by a Regional Trial Court
by virtue of its being a court of general jurisdiction. So in Rule 47, annulment of judgment could be filed
either with the Court of Appeals or with the Regional Trial Court. But the decision when it comes to the
Court of Appeals, should be one that has been rendered by a Regional Trial Court. But when it is the
Regional Trial Court before which the petition is filed, the decision that is sought to be set aside or
annulled should be one that must have been rendered by an inferior court.

Can a petition be filed under RULE 47 to annul a judgment of a quasi judicial body?

Certain questions have been given concerning the propriety of annulling a judgment rendered
by a quasi judicial body. So you will note that Rule 47 speaks only about a decision rendered by a
Regional Trial Court and a decision rendered by an inferior court. Nothing is mentioned about the
propriety of filing a petition under Rule 47 to annul a judgment of a quasi judicial body. Does the law in
the first place, recognize such an action, that is, a petition to annul a judgment rendered by a quasi
judicial body? BP 129 really mentions nothing about the propriety of a case that is filed for the purpose
of annulling and setting aside a final and executory judgment rendered by a quasi judicial body. But if we
are going to apply the principle that a Regional Trial Court is a court of general jurisdiction, if a case is
filed, that case should be commenced before a Regional Trial Court although the Regional Trial Court
may be coordinate or co-equal with that quasi judicial body. Of course, this is again one of the gray
areas when it comes to annulment of judgment.

Could we properly file a petition for the annulment of a judgment rendered by the Court of Appeals,
this petition to be filed with the Supreme Court? Case in point: Islamic Dawah Council vs. Court of
Appeals 178 SCRA 178

403
 Again BP 129 and the Constitution mention nothing about the propriety of a petition to be filed
with the Supreme Court for the purpose of annulling or setting aside a final and executory judgment of
the Court of Appeals. But in at least one case, the Supreme Court in an obiter said the Court of Appeals
has the authority to set aside and annul its own judgment. By jurisprudence we can probably argue that
the Court of Appeals has the inherent authority to annul and set aside its own judgment. But when it
comes to the Supreme Court, there is no express assignment given in the Constitution or in the old
Judiciary Act or in BP 129 concerning its authority to annul and set aside a judgment of the Court of
Appeals.

The case that I suggest you should read when it comes to annulment of judgments is the 1980s
case entitled Islamic Dawah Council vs. Court of Appeals. It is easy to remember that case because it is
reported in Volume 178 of SCRA and it is found in page 178 also of that same SCRA. That case gave us
the ruling that annulment of judgment is not really a product solely of BP 129. The action to annul a
judgment has long been recognized in this jurisdiction. But when BP 129 was enacted, BP 129 only
assigned to the Court of Appeals, exclusive original jurisdiction to the Court of Appeals to try the case for
he annulment of judgment. That case of Islamic Dawah Council also gave us the ruling that a petition to
annul a judgment under Rule 47 is available to a stranger to a case. You see, the remedies given to a
defeated party in a civil action start with Rule 37, motion for new trial/ motion for reconsideration, and
then 38 relief from judgment, and then 40 appeal, and 47 annulment of judgment and possibly
Rule 65. But according to our laws these remedies are available only to a litigant. In fact the litigant who
has been aggrieved by the decision is the one who should avail of these remedies. But when it comes to
annulment of judgment, we suddenly change the rule. Annulment of judgment as a remedy to assail a
judgment is available not only to a litigant in that case but also to a stranger, to a non litigant who may
prejudiced by the implementation of that decision.

According to Islamic Dawah Council, even if the judgment has already been executed that is
properties have been delivered by virtue of that final and executory judgment, the execution of the
judgment does not preclude a stranger from filing a petition to annul a judgment under Rule 47.

Are there difference between a petition to annul a judgment filed with the Court of Appeals and a
Petition to annul a judgment filed with the Regional Trial Court?

Procedurally, there are some distinctions. A petition to annul a judgment filed with the Court of
Appeals can be dismissed outright by the Court of Appeals. So upon the filing of a petition, the Court of
Appeals is given the discretion whether or not to entertain the petition. If the Court of Appeals says the
petition does not have merit, the Court of Appeals out rightly can dismiss the petition. But if the Court of
Appeals gives due course to the petition, then the Court of Appeals should threat the petition as if it
were an ordinary civil action. Meaning to say, that the Court of Appeals will now be bound also to issue
summons to the respondent.

But when the petition under Rule 47 to annul a judgment is filed with a Regional Trial Court, the
Regional Trial Court is not given discretion whether or not to entertain the petition. The Regional Trial

404
Court is in fact required to consider the petition for annulment of judgment as a mere ordinary civil
action. In other words, upon the filing of the petition to annul a judgment with a Regional Trial Court, it
is the duty of the clerk of court to issue right away a summons addressed to the defendant. We are
going to treat the petition to annul a judgment as if it were an ordinary civil action. If there is a defect in
that petition to annul a judgment, it is up to the respondent to bring out to the Regional Trial Court
these errors. However, it does not mean to say that the Regional Trial Court cannot motu proprio
dismiss a petition for annulment of judgment under Rule 47. A Regional Trial Court can also motu
proprio dismiss a petition under Rule 47 using the same grounds under Rule 9, that is when the grounds
of res judicata or litis pendencia, or prescription appear on record the Regional Trial Court can also
rightfully dismiss the petition for relief. In other words, what a Regional Trial Court can do to an ordinary
civil action, a Regional Trial Court also has the power to do the same with respect to a petition to annul a
judgment.

Rule 47 Section 1: Coverage

This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and
resolutions in civil actions or Regional Trial Courts for which the ordinary remedies of new trial, appeal,
petition for relief or other appropriate remedies are no longer available through no fault of the
petitioner.

Rule 47 Section 2: Grounds for annulment

The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction.

Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a
motion for new trial or petition for relief.

Rule 47 Section 3: Period for filing action

If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and
if based on lack of jurisdiction, before it is barred by laches or estoppel.

VBJ Notes:

In Rule 47 also, the grounds as we said are lack of jurisdiction over the subject matter and over
the person and extrinsic fraud. The period when it comes to extrinsic fraud is 4 years from the discovery
of the fraud. That is the period of prescription. But when it comes to lack of jurisdiction, Rule 47 does
not fix a period. It simply says that before the action is barred by estoppel by laches, obviously referring
to that case of Tijam vs. Sibonghanoy. So a case to annul a judgment based on lack of jurisdiction should
be filed before the case prescribes as mandated by the case of Tijam vs. Sibonghanoy.

If a petition is resolved favorably by the Court of Appeals or the Regional Trial Court and the
basis is absence of jurisdiction, of course the decision will be considered null and void. It will be nullified
405
and set aside. Therefore, the plaintiff in that case could file a new action, this time, he should file the
case with the court that has jurisdiction over his case. But when the ground is extrinsic fraud, under
Rule 47, the Court of Appeals can direct the lower court to continue trying the case as if a motion for
new trial has been duly filed on time. So the consequences of a favorable decision under Rule 47 would
depend on the ground upon which the petition to annul judgment has been based.

Rule 47 Section 4: Filing and contents of petition

The action shall be commenced by filing a verified petition alleging therein with particularity the
facts and the law relied upon for annulment, as well as those supporting the petitioners good and
substantial cause of action or defense, as the case may be.

The petition shall be filed in seven (7) clearly legible copies, together with sufficient copies
corresponding to the number of respondents. A certified true copy of the judgment or final order or
resolution shall be attached to the original copy of the petition intended for the court and indicated as
such by the petitioner.

The petitioner shall also submit together with the petition affidavits of witnesses or documents
supporting the cause of action or defense and a sworn certification that he has not theretofore
commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding,
he must state the status of the same, and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within five (5) days therefrom.

Rule 47 Section 5: Action by the Court

Should the court find no substantial merit in the petition, the same may be dismissed outright
with specific reasons for such dismissal.

Should prima facie merit be found in the petition, the same shall be given due course and
summons shall be served on the respondent.

Rule 47 Section 6: Procedure

The procedure in ordinary civil cases shall be observed. Should a trial be necessary, the
reception of the evidence may be referred to a member of the court or a judge of a Regional Trial Court.

Rule 47 Section 7: Effect of judgment

A judgment of annulment shall set aside the questioned judgment or final order or resolution
and render the same null and void, without prejudice to the original action being refilled in the proper
court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic

406
fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial has
been granted therein.

Rule 47 Section 8: Suspension of prescriptive period

The prescriptive period for the refilling of the aforesaid original action shall be deemed
suspended from the filing of such original action until the finality of the judgment of annulment.
However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the
plaintiff in the original action.

Rule 47 Section 9: Relief Available

The judgment of annulment may include the award of damages, attorneys fees and other relief.

If the questioned judgment or final order or resolution had already been executed, the court
may issue such orders of restitution or other relief as justice and equity may warrant under the
circumstances.

Rule 47 Section 10: Annulment of judgment or final order of a Municipal Trial Court

An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the
Regional Trial Court having jurisdiction over the former. It shall be treated as an ordinary civil action and
Sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto.

RULE 48

PRELIMINARY CONFERENCE

VBJ Notes:

Another rule inserted in the many rules concerning appeal is the rule on preliminary conference
in appealed cases. The insertion of this Rule of preliminary conference in appealed cases gives emphasis
to the public policy that in civil litigations, as much as possible, the court should encourage the parties to
settle their differences amicably. So even if the case is already on appeal, the Court of Appeals or even
the Supreme Court could still require the parties to attend this preliminary conference.

Do we follow the rule set forth in Rule 18, that is in pre-trial, or the rule in summary procedure
for the holding of a preliminary conference? Well the preliminary conference before the appellate court
is not mandatory. It is within the discretion of the appellate court to call the parties to a preliminary
conference. But if the appellate court, that is either the Supreme Court or the Court of Appeals, calls the
parties to a preliminary conference and the appellant does not attend this conference, his non-
attendance will be a ground for the dismissal of the appeal. So although preliminary conference before

407
the appellate court is not mandatory, if the appellate court orders the holding of a preliminary
conference, the non attendance on the part of the appellant could lead to the dismissal of the appeal.

Rule 48 Section 1: Preliminary Conference

At any time during the pendency of a case, the court may call the parties and their counsel to a
preliminary conference:

(a) To consider the possibility of an amicable settlement, except when the case is not allowed
by law to be compromised;

(b) To define, simplify and clarify the issues for determination;

(c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number
of witnesses to be presented in cases falling within the original jurisdiction of the court, or
those within its appellate jurisdiction where a motion for new trial is granted on the ground
of newly discovered evidence; and

(d) To take up such other matters which may aid the court in the prompt disposition of the
case.

Rule 48 Section 2: Record of the conference

The proceedings at such conference shall be recorded and, upon the conclusion thereof, a
resolution shall be issued embodying all the actions taken therein, the stipulations and admissions
made, and the issues defined.

Rule 48 Section 3: Binding effect of the results of the conference

Subject to such modifications which may be made to prevent manifest injustice, the resolution
in the preceding section shall control the subsequent proceedings in the case unless, within five (5) days
from notice thereof, any party shall satisfactorily show a valid cause why the same should not be
followed.

VBJ Notes:

When it comes to the order to be issued by the appellate court, either by the Supreme Court or
the Court of Appeals, we follow the same ruling obtaining in Rule 18 when it comes to a pre-trial order.
This order issued after preliminary conference will govern the course of the litigation later on, which is
the rule provided in Rule 18 when it comes to the issuance of a pre-trial order by the trial court.

RULE 49

ORAL ARGUMENT
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Rule 49 Section 1: When allowed

At its own instance or upon motion of a party, the court may hear the parties in oral argument
on the merits of a case, or on any material incident in connection therewith.

The oral argument shall be limited to such matters as the court may specify in its orders or
resolution.

Rule 49 Section 2: Conduct of oral argument

Unless authorized by the court, only one counsel may argue for a party. The duration allowed
for each party, the sequence of the argumentation, and all other related matters shall be as directed by
the court.

Rule 49 Section 3: No hearing or oral argument for motions

Motions shall not be set for hearing and, unless the court otherwise directs, no hearing or oral
argument shall be allowed in support thereof. The adverse party may file objections to the motion
within five (5) days from service, upon the expiration of which such motion shall be deemed submitted
for resolution.

RULE 50

DISMISSAL OF APPEAL

VBJ Notes:

Improper appeal and erroneous appeal under Rule 56 vis--vis improper appeal and under erroneous
appeal under RULE 50

In Rule 56, that is appeals to the Supreme Court, this Rule gives us the harmful effects of an
improper appeal and an erroneous appeal to the Supreme Court. In Rule 56, when the appeal brought
to the Supreme Court is an improper appeal, the appeal will be dismissed outright by the Supreme
Court. But when the appeal brought to the Supreme Court is covered by the definition of an erroneous
appeal, the Supreme Court has the discretion to refer the appeal to the Court of Appeals. So an
erroneous appeal to the Supreme Court may not be dismissed at all by the Supreme Court. The Supreme
Court is given the discretion to refer the appeal to the Court of Appeals.

But in Rule 50, that is the appeal to the Court of Appeals, if the appeal to the Court of Appeal
falls within the definition of both improper and erroneous appeal, the appeal will be dismissed. In other
words, if the mode of appeal required by the Rules is a notice of appeal, that is ordinary appeal from the
Regional Trial Court to the Court of Appeals, but the issue raised by the appellant is purely a question of
law, the appeal will be dismissed by the Court of Appeals. The reason is that in ordinary appeals, the
409
Court of Appeals has no authority to resolve purely questions of law. But you should note that this
occurs only when the appeal is an ordinary appeal. The court of appeals has no authority to resolve
purely questions of law. But when the appeal brought to the Court of Appeals is by and through the
other mode, that is petition for review, the Court of Appeals has authority to resolve purely questions of
law.

Rule 50 Section 1: Grounds for dismissal of appeal

An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the
appellee, on the following grounds:

(a) Failure of the record on appeal to show on its face that the appeal was taken within the
period fixed by these Rules;

(b) Failure to file the notice of appeal or the record on appeal within the period prescribed by
these Rules;

(c) Failure of the appellant to pay the docket and other lawful fees as provided in Section 5 of
Rule 40 and Section 4 of Rule 41;

(d) Unauthorized alterations, omissions or additions in the approved record on appeal as

provided in Section 4 of Rule 44;

(e) Failure of the appellant to serve and file the required number of copies of his brief or
memorandum within the time provided by these Rules;

(f) Absence of specific assignment of errors in the appellants brief, or of page references to the
record as required in Section 13, paragraphs (a), (c), (d), and (f) of Rule 44;

(g) Failure of the appellant to take the necessary steps for the correction or completion of the
record within the time limited by the court in its order;

(h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply
with orders, circulars, or directives of the court without justifiable causes;

(i) The fact that the order or judgment appealed from is not appealable.

VBJ Notes:

RULE 50 Section 1 and RULE 56 Section 5: Grounds for dismissal of appeal - Court is not mandated to
dismiss

When it comes to the dismissal of appeals both in the Supreme Court, and the Court of Appeals,
the dismissal of an appeal on the grounds enumerated in the Rules is not mandatory on the part of the
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appellate court, whether the Supreme Court or the Court of Appeals. So even if the brief let us say that
is submitted by the appellant to the Court of Appeals does not contain all the matters that should be
embodied in that brief, and a motion to dismiss the appeal is filed by the appellee, the Court of appeals
is not mandated to dismiss the appeal. The Rules use the word may when it comes to dismissal of
appeals both by the Supreme Court and the Court of Appeals. But we should also note that in the case
of dismissal of appeals, there is no need for a motion coming from the appellee. If there are grounds for
the dismissal of an appeal evident from the records of the case, the Court of Appeals or the Supreme
Court could on their own, motu proprio, order the dismissal of the appeal.

In order to emphasize the importance of assignment of errors in the brief or in the petition for
review depending on the mode appeal taken. If the petition for review or the brief filed by the appellant
does not contain an assignment of errors, the appeal is going to be dismissed. The reason is, as we
learned in the past, if the appellant cannot point out any error committed by the lower court then the
Supreme Court and the Court of Appeals will apply the disputable presumption that the decision
appealed from is correct. So it is the burden of the appellant in appealed cases to point out to the
appellate court, errors committed by the trial court, whether it is the Regional Trial Court or a quasi-
judicial body. Failure to do so would lead to the dismissal of the appeal.

We should also note that in appeals, the payment of the appellate court docket fee on time and
the perfection of the appeal on time are essential ingredients for the validity of an appeal. If these
requirements are not met on time, the appeal will be dismissed because the appellate court will not
acquire jurisdiction over the appealed case. So failure to comply with these requirements the
perfection of the appeal on time, the payment of the appellate court docket fee on time, will deprive
the appellate court of jurisdiction over the appealed case.

Concept of harmless errors and substantial errors

What errors could be assigned in the brief or in the petition for review? In order to answer this
question, we have to know the concepts of harmless errors in appeal and substantial errors in appeal.

In the Rules there is a definition of harmless errors. That is, errors committed by the trial court
in the exclusion or admission of evidence or in the resolution of motion, which do not affect the
substantial rights of a party are called harmless errors. These harmless errors will be disregarded by the
appellate court and therefore they should not be assigned as errors in the brief or in the petition for
review. So only errors committed by the trial court, the court of origin which have caused prejudice to
the substantial rights of the appellant should be included in the assignment of errors.

On appeal can the appellant change his theory of the case?

In other words, if the issue litigated upon in the lower court is for ownership of a piece of land,
can the appellant before the appellate court disregarded this issue of ownership and bring to the
appellate court a theory concerning collection of an indebtedness? That is not proper. That is not

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possible. So the issues that could be raised on appeal should be the same issues that were tried and
resolved by the court of origin.

Importance of making an assignment of errors

Even if there are errors committed by the trial court which have substantially caused prejudiced
to the rights of the appellant, these errors will not be resolved by the appellate court unless they are
assigned as errors by the appellant. So it is important for the appellant to make this assignment of
errors. It is not the duty of the appellate court to look for errors committed by the trial court. It is the
duty of the appellant to point out to the appellate court the errors committed by the trial court, which
errors have caused substantial prejudiced to the appellant.

Memorandum Decision

We also mentioned a kind of a decision in the past, which we called a memorandum decision. A
memorandum decision is also recognized both in BP 129 and in the Rules. And a memorandum decision
could be rendered only by an appellate court. A memorandum decision could not be rendered by a trial
court. In appeals, if the appellate court affirms the decision appealed from the appellate court can
simply adopt the findings of facts and the conclusions of law made by the trial court. So there is no need
for the appellate court to make its own findings of fact and conclusions of law. It is enough if the
appellate court will simply adopt the findings of fact of the trial court. And the appellate court will do
this by simply quoting in its own decision the findings of fact and the conclusions of law made by the
trial court. But note that a memorandum decision could not be rendered by a trial court. A trial court
must make its own findings of fact and conclusions of law so that the decision could be considered as a
valid decision under Rule 36.

Rule 50 Section 2: Dismissal of improper appeal to the Court of Appeals

An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only
questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an
appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional
Trial Court shall be dismissed.

An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate
court but shall be dismissed outright.

Rule 50 Section 3: Withdrawal of appeal

An appeal may be withdrawn as of right at any time before the filing of the appellees brief.
Thereafter, the withdrawal may be allowed in the discretion of the court.

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 RULE 51

JUDGMENT

Rule 51 Section 1: When case deemed submitted for judgment

A case shall be deemed submitted for judgment:

(A) In ordinary appeals

1.) Where no hearing on the merits of the main case is held, upon the filing of the last pleading,
brief, or memorandum required by the Rules or by the court itself, or the expiration of the
period for its filing.

2.) Where such hearing is held, upon its termination or upon the filing of the last pleading or
memorandum as may be required or permitted to be filed by the court, or the expiration of
the period for its filing.

(B) In original actions and petitions for review

1. Where no comment is filed, upon the expiration of the period to comment;

2. Where no hearing is held, upon the filing of the last pleading required or permitted to be
filed by the court, or the expiration of the period for its filing;

3. Where a hearing on the merits of the main case is held, upon its termination or upon the
filing of the last pleading or memorandum as may be required or permitted to be filed by
the court, or the expiration of the period for its filing.

Rule 51 Section 2: By whom rendered

The judgment shall be rendered by the members of the court who participated in the
deliberation on the merits of the case before its assignment to a member for the writing of the decision,

Rule 51 Section 3: Quorum and voting in the court

The participation of all three Justices of a division shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final
resolution. If the three Justices do not reach a unanimous vote, the clerk shall enter the votes of the
dissenting Justices in the record. Thereafter, the Chairman of the division shall refer the case, together
with the minutes of the deliberation, to the presiding Justice who shall designate two Justices chosen by
raffle from among all other members of the court to sit temporarily with them, forming a special division
of five Justices. The participation of all the five members of the special division be necessary for the
deliberation required in Section 2 of this Rule and the concurrence of the majority of such division shall
be required for the pronouncement of a judgment or final resolution.

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Rule 51 Section 4: Disposition of case

The Court of Appeals, in the exercise of its appellate jurisdiction, may affirm, reverse, or modify,
the judgment or final order appealed from, and may direct a new trial or further proceedings to be had.

Rule 51 Section 5: Form of decision

Every decision or final resolution of the court in appealed cases shall clearly and distinctly state
the findings of fact and the conclusions of law on which it is based, which may be contained in the
decision or final resolution itself, or adopted from those set forth in the decision, order, or resolution
appealed from. (Sec. 40, B.P. 129)

Rule 51 Section 6: Harmless Error

No error in either the admission or the exclusion of evidence and no error or defect in any ruling
or order or in anything done or omitted by the trial court or by any of the parties is ground for granting a
new trial or for setting aside, modifying, or otherwise disturbing a judgment or order, unless refusal to
take such action appears to the court inconsistent with substantial justice. The court at every stage of
the proceedings must disregard any error or defect which does not affect the substantial rights of the
parties.

Rule 51 Section 7: Judgment where there are several parties

In all actions or proceedings, an appealed judgment may be affirmed as to some of the

appellants, and reversed as to others, and the case shall thereafter be proceeded with, so far as
necessary, as if separate actions had been begun and prosecuted; and execution of the judgment or
affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem
proper.

Rule 51 Section 8: Questions that may be decided

No error which does not affect the jurisdiction over the subject matter or the validity of the
judgment appealed from or the proceedings therein will be considered unless stated in the assignment
of errors, or closely related to or dependent on an assigned error and properly argued in the brief, save
as the court may pass upon plain errors and clerical errors.

Rule 51 Section 9: Promulgation and notice of judgment

After the judgment or final resolution and dissenting or separate opinions, if any, are signed by
the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date
of promulgation and cause true copies thereof to be served upon the parties or their counsel.

Rule 51 Section 10: Entry of Judgments and final resolutions

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 If no appeal or motion for new trial or reconsideration is filed within the time provided in these
Rules, the judgment or final resolution shall forthwith be entered by the clerk in the book of entries of
judgments. The date when the judgment or final resolution becomes executory shall be deemed as the
date of its entry. The record shall contain the dispositive part of the judgment or final resolution and
shall be signed by the clerk, with a certificate that such judgment or final resolution has become final
and executory.

Rule 51 Section 11: Execution of judgment

Except where the judgment or final order or resolution, or a portion thereof, is ordered to be
immediately executory, the motion for its execution may only be filed in the proper court after its entry.

In original actions in the Court of Appeals, its writ of execution shall be accompanied by a
certified true copy of the entry of judgment or final resolution and addressed to any appropriate officer
for its enforcement.

In appealed cases, where the motion for execution pending appeal is filed in the Court of
Appeals at a time it is in possession of the original record or the record on appeal, the resolution
granting such motion shall be transmitted to the lower court from which the case originated, together
with a certified true copy of the judgment or final order to be executed, with a directive for such court
of origin to issue the proper writ for its enforcement.

RULE 52

MOTION FOR RECONSIDERATION

Rule 52 Section 1: Period of filing

A party may file a motion for reconsideration of a judgment or final resolution within fifteen (15)
days from notice thereof, with proof of service on the adverse party.

Rule 52 Section 2: Second motion for reconsideration

No second for motion for reconsideration of a judgment or final resolution by the same party
shall be entertained.

Rule 52 Section 3: Resolution of motion

In the Court of Appeals, a motion for reconsideration shall be resolved within ninety (90) days
from the date when the court declares it submitted for resolution.

Rule 52 Section 4: Stay of execution

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 The pendency of a motion for reconsideration filed on time and by the proper party shall stay
the execution of the judgment or final resolution sought to be reconsidered unless the court for good
reasons, shall otherwise direct.

RULE 53

NEW TRIAL

Rule 53 Section 1: Period for filing; ground

At any time after appeal from the lower court has been perfected and before the Court of
Appeals loses jurisdiction over the case, a party may file a motion for a new trial on the ground of newly
discovered evidence which could not have been discovered prior to the trial in the court below by the
exercise of due diligence and which is of such a character as would probably change the result. The
motion shall be accompanied by affidavits showing the facts constituting the grounds therefor and the
newly discovered evidence.

Rule 53 Section 2: Hearing and order

The Court of Appeals shall consider the new evidence together with that adduced at the trial
below, and may grant or refuse a new trial, or may make such order, with notice to both parties, as to
the taking of further testimony, either orally in court, or by depositions, or render such other judgment
as ought to be rendered upon such terms as it may deem just.

Rule 53 Section 3: Resolution of motion

In the Court of Appeals, a motion for new trial shall be resolved within ninety (90) days from the
date when the court declares it submitted for resolution.

Rule 52 Section 4: Procedure in new trial

Unless the court otherwise directs, the procedure in the new trial shall be the same as that
granted by a Regional Trial Court.

RULE 54

INTERNAL BUSINESS

Rule 54 Section 1: Distribution of cases among divisions

All the cases of the Court of Appeals shall be allotted among the different divisions thereof for
hearing and decision. The Court of Appeals, sitting en banc, shall make proper orders or rules to govern
the allotment of cases among the different divisions, the constitution of such divisions, the regular
rotation of Justices among them, the filling of vacancies occurring therein, and other matters relating to
416
the business of the court; and such rules shall continue in force until repealed or altered by it or by the
Supreme Court.

Rule 54 Section 2: Quorum of the court

A majority of the actual members of the court shall constitute a quorum for its sessions en banc.
Three members shall constitute a quorum for the sessions of a division. The affirmative votes of the
majority of the members present shall be necessary to pass a resolution of the court en banc. The
affirmative votes of three members of a division shall be necessary for the pronouncement of a
judgment or final resolution, which shall be reached in consultation before the writing of the opinion by
any member of the division. (Section 11, first par. Of B.P. Blg. 129, as amended by Sec. 6 of E.O.33)

RULE 55
Publication of Judgments and Final Resolutions

Rule 55 Section 1: Publication

The judgments and final resolutions of the court shall be published in the Official Gazette and in
the Reports officially authorized by the court in the language in which they have been originally written,
together with the syllabi therefor prepared by the reporter in consultation with the writers thereof.
Memoranda of all other judgments and final resolutions not so published shall be made by the reporter
and published in the Official Gazette and the authorized reports. (1a)

Rule 55 Section 2: Preparation of opinions for publication

The reporter shall prepare and publish with each reported judgment and final resolution a
concise synopsis of the facts necessary for a clear understanding of the case, the names of counsel, the
material and controverted points involved, the authorities cited therein, and a syllabus which shall be
confined to points of law. (Sec. 22a, R.A. No. 296) (n)

Rule 55 Section 3: General make-up of volumes

The published decisions and final resolutions of the Supreme Court shall be called "Philippine
Reports," while those of the Court of Appeals shall be known as the "Court of Appeals Reports." Each
volume thereof shall contain a table of the cases reported and the cases cited in the opinions, with a
complete alphabetical index of the subject matter of the volume. It shall consist of not less than seven
hundred pages printed upon good paper, well bound and numbered consecutively in the order of the
volumes published. (Sec. 23a, R.A. No. 296) (n)

PROCEDURE IN THE SUPREME COURT

RULE 56
A. Original Cases
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Rule 56 Section 1: Original cases cognizable

Only petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus, disciplinary
proceedings against members of the judiciary and attorneys, and cases affecting ambassadors, other
public ministers and consuls may be filed originally in the Supreme Court. (n)

Rule 56 Section 2: Rules applicable

The procedure in original cases for certiorari, prohibition, mandamus, quo warranto and habeas
corpus shall be in accordance with the applicable provisions of the Constitution, laws, and Rules 46, 48,
49, 51, 52 and this Rule, subject to the following provisions:

a) All references in said Rules to the Court of Appeals shall be understood to also
apply to the Supreme Court;

b) The portions of said Rules dealing strictly with and specifically intended for
appealed cases in the Court of Appeals shall not be applicable; and

c) Eighteen (18) clearly legible copies of the petition shall be filed, together with proof
of service on all adverse parties.

The proceedings for disciplinary action against members of the judiciary shall be governed by
the laws and Rules prescribed therefor, and those against attorneys by Rule 139-B, as amended. (n)

B. Appealed Cases

Rule 56 Section 3: Mode of appeal

An appeal to the Supreme Court may be taken only by a petition for review on certiorari, except
in criminal cases where the penalty imposed is death, reclusion perpetua or life imprisonment. (n)

Rule 56 Section 4: Procedure

The appeal shall be governed by and disposed of in accordance with the applicable provisions of
the Constitution, laws, Rules 45, 48, Sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule. (n)

Rule 56 Section 5: Grounds for dismissal of appeal

The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds:

(a) Failure to take the appeal within the reglementary period;

(b) Lack of merit in the petition;

(c) Failure to pay the requisite docket fee and other lawful fees or to make a deposit
for costs;
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 (d) Failure to comply with the requirements regarding proof of service and contents of
and the documents which should accompany the petition;

(e) Failure to comply with any circular, directive or order of the Supreme Court
without justifiable cause;

(f) Error in the choice or mode of appeal; and

(g) The fact that the case is not appealable to the Supreme Court. (n)

Rule 56 Section 6: Disposition of improper appeal

Except as provided in Section 3, Rule 122 regarding appeals in criminal cases where the penalty
imposed is death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme Court by
notice of appeal shall be dismissed.

An appeal by certiorari taken to the Supreme Court from the Regional Trial Court submitting issues of
fact may be referred to the Court of Appeals for decisions or appropriate action. The determination of
the Supreme Court on whether or not issues of fact are involved shall be final. (n)

Rule 56 Section 7: Procedure if opinion is equally divided

Where the court en banc is equally divided in opinion, or the necessary majority cannot be had,
the case shall again be deliberated on, and if after such deliberation no decision is reached, the original
action commenced in the court shall be dismissed; in appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental matters, the petition or motion shall be denied. (11a)

RULE 39
Execution, Satisfaction and Effect of Judgments

Rule 39 Section 1: Execution upon judgments or final orders

Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of
the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been
duly perfected. (1a)

If the appeal has been duly perfected and finally resolved, the execution may forthwith be
applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true
copies of the judgment or judgments or final order or orders sought to be enforced and of the entry
thereof, with notice to the adverse party.

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 The appellate court may, on motion in the same case, when the interest of justice so requires,
direct the court of origin to issue the writ of execution. (n)

VBJ Notes:

Now we go to Rule 39, that is execution and satisfaction of judgments. This is the rule, which
carries out into effect the rights of the victor in a civil action, the rights of the winning party. Although
Rule 39 is entitled execution and satisfaction of judgment, it does not mean to say that execution of
judgment and satisfaction of judgment must always go together. There could be an execution of
judgment without satisfaction of that same judgment. In the same way that there could be satisfaction
of judgment even without execution on the party of the court. To illustrate: The judgment of the court
has become final and executory, and the judgment awards to the plaintiff the sum of P500,000. If the
judgment debtor voluntarily pays 500,000 to the judgment creditor, the judgment will be satisfied
without execution of that judgment. But if the judgment debtor refuses to pay voluntarily the award
given by the court to the judgment creditor, the remedy of the judgment creditor is to ask the court for
the issuance of a writ of execution.

The issuance by the court a writ of execution is not a guarantee that the judgment will be
satisfied. It could turn out that the judgment-debtor does not have any leviable properties at all. In
which case there could be execution of that judgment, that is a writ of execution is issued by the court,
but the judgment-creditor cannot expect satisfaction of the judgment. In other words, execution of
judgment is a mode to compel the compliance by the judgment-debtor of the award given by the court.
The judgment debtor can voluntarily comply with the award, in which case there is satisfaction of
judgment without the court issuing a writ of execution.

What court will execute a judgment assuming that the case has been appealed from one higher court
to another court?

Lets say theres an appeal to the Regional Trial Court, another appeal to the Court of Appeals
and then a third appeal to the Supreme Court. Finally, the judgment becomes executory, and the
judgment is in favor of the plaintiff. Which of these three courts should be executing court? The general
rule is that it is the court of origin that should execute the judgment. So even if the case reaches the
Supreme Court, we should not expect the Supreme Court to be executing that judgment. The records of
the case will have to be returned to the court of origin for purposes of execution. So the judgment-
creditor will gave to file his motion for execution before the court of origin.

Is it possible that the appellate court will be the one responsible for executing the judgment,
that is as an exception to the general rule? Well in exceptional cases/instances, the appellate court
could issue a decision affirming the judgment appealed from, and together with the affirmation, the
appellate court can say Our decision is immediately executory, in which case, the burden of executing
that judgment will not necessarily be in the hands of the court of origin. If we are going to follow the
general rule, that is, it is always the court of origin that will execute judgment even if the case has
undergone several appeals, you will notice that there is a time lag that may enable the judgment debtor
to hide his properties or to convey his properties in order to defeat the decision. If the case is brought
up all the way to the Supreme Court, it will take time for the Supreme Court to return the records of the
case from the Supreme Court and then Court of Appeals and then to the Regional Trial Court back to the

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court of origin. That could give enough time for the judgment-debtor to defeat the execution of that
judgment. That has been remedied by Rule 39. Under Rule 39, once the decision of the appellate court
has become final and executory a certification that the judgment has been entered will be enough proof
in so far as the trial court is concerned that it must execute the judgment. The trial court does not have
to wait for the records to be returned to it before it could act favorably on a motion for execution.

Under what grounds may the court properly deny or delay the execution of a final and executory
judgment?

Execution then, of a final and executory judgment, is a matter of right on the part of the winning
party. Once he files a motion for execution, the court is duty bound to approve the motion and to issue
accordingly the writ of execution. The court has no power to delay or to deny the approval of the
motion for execution of a final and executory judgment. Again, this is just a general rule. There could
instances where the court of origin could properly deny execution that is sought by the winning party,
even if the judgment has become final and executory. But these are unusual instances, and the grounds
are also the grounds available for the aggrieved party to ask for the quashal to file a motion to quash a
writ of execution issued by the court. And some of these instances are the following: Even if the
judgment has become final and executory, the court can properly refuse to execute the judgment if
there is a petition for relief that is filed under Rule 38. The mere filing of a petition for relief however,
will not be sufficient justification for the non-issuance of this writ of execution. The petition for relief
must be accompanied by a Temporary Restraining Order or a writ of preliminary injunction that will 1
prevent the court from issuing a writ of execution.

If a petition for relief is coupled with a restraining order or preliminary injunction could stop the
execution of the case, we can apply the same principle to annulment of judgment. There is a petition to
annul a judgment, and that judgment has not yet been executed, the mere filing of the petition will not
justify the non-issuance of the writ. The petition to annul under Rule 47 must also be accompanied by a
2
temporary restraining order or by writ of preliminary injunction.

Another ground used by the courts to justify a refusal to execute a judgment is when the
judgment has been novated. How can the parties novate a judgment that has become final and
3
executory? In the first place, are the parties given the license or freedom to novate a judgment rendered
by a court which has become final and executory? The answer is YES. Even if a judgment has become
final and executory even if the principle of res judicata is already applicable to the contending parties
the parties are still given the freedom to novate that judgment. And if they novate the judgment that
judgment can no longer be enforced. It is going to rendered moot and academic by an act of novation
voluntarily entered into by the litigants. For instance, in one case the court rendered a judgment
favorable to the plaintiff ordering the defendant to pay a certain sum, lets say P1M. The judgment is
entered so it has become final and executory. Thereafter, the plaintiff and the defendant came into
agreement that instead of paying P1M the plaintiff acceded to the request of the judgment debtor to
reduce the obligation to P700,000 and this reduced amount should be payable on installments within a
period of five years. What is the effect of this new arrangement between the judgment debtor- and
judgment creditor? According to the Supreme Court, that arrangement changes the judgment rendered
by the court. The judgment can no longer be enforced. The judgment-creditor cannot complain to the
trial court and ask the trial court to execute the judgment for the payment of P1M. So even if a
judgment has become final and executory, it may not be executed if the parties enter into a subsequent

421
arrangement that will novate the judgment. But the supreme court has been very particular in saying
that the new arrangement and the decision of the court should really be in conflict with one another,
that is, they cannot stand together.

If the judgment has become final and executory, could the court of origin motu proprio issue a writ of
execution?

The answer is NO. The court of origin will issue a writ of execution only upon motion by the
winning party. There are conflicting decisions as to whether this motion for execution of a final and
executory judgment could be heard by the court even if the adverse party, that is the aggrieved party,
has not been served with a copy of the motion? One set of decisions say, that the motion for execution
could be heard ex parte. But another set of decision say a motion for execution may be a litigated
motion, in which case it must satisfy the requirements of a motion under Rule 15. The better rule is that
a motion for execution should be served also upon the judgment-debtor, upon the aggrieved party, in
order to provide him a chance to file an opposition to the granting of that motion.

Is an order of the court granting or denying a motion for execution a final or an interlocutory order?
Remedies of the adverse party

Since the motion for execution is just like any other motion, again, the court although it is
ministerial duty to grant the motion, could also deny the motion. The judgment-creditor could expect a
favorable action on his motion, despite the opposition of the judgment-debtor. If the court grants a
motion for execution over the opposition of the adverse party, could the judgment debtor/adverse
party appeal from that order granting a motion for execution? So the collateral inquiry should be is the
granting of a motion for execution interlocutory, or could it be considered as a final order? The granting
of a motion for execution for execution may be treated as a final order, not merely interlocutory? Does
it mean to say that the aggrieved party can appeal from that final order? Now I will again call your
attention to Rule 41. In Rule 41, although an order of execution may be final in character, Rule 41 says
there could be no appeal from an order of execution. So the remedy of the aggrieved party is to file a
petition for certiorari under Rule 65. So this Rule 41 which enumerates the final orders which are not
appealable really plays an important role when it comes to procedure, even up to the period of
execution. Rule 41 enumerates orders concerning execution, which are not appealable. If the court
grants a motion for execution and issues the writ of execution, that cannot be assailed in an appeal. It
must be assailed in a petition filed under Rule 65.

Supposing the court denies the motion for execution filed by the judgment-creditor, what is the
remedy of the judgment-creditor? The granting of motion for execution is ministerial on the part of the
court according to Rule 39. So if the court refuses to issue an execution or to grant a motion for
execution, given that it is the ministerial duty of the court to execute a final and executory judgment,
the remedy of the judgment-creditor is to file a petition for mandamus, also under Rule 65, to compel
the performance of an act, which is purely ministerial.

There are some decisions which say that the remedy of the judgment-creditor if his motion for
execution is denied by the court is to appeal, but an appeal may not turn out to be an effective remedy
because an appeal will unduly delay the execution of a final and executory judgment. So it seems that

422
the remedy of the judgment creditor given that Rule 39 says that it is ministerial on the part of the court
to execute a judgment is to file a petition for mandamus under Rule 65.

Rule 39 Section 2: Discretionary execution

(a) Execution of a judgment or final order pending appeal. On motion of the

prevailing party with notice to the adverse party filed in the trial court while it
has jurisdiction over the case and is in possession of either the original record
or the record on appeal, as the case may be, at the time of the filing of such
motion, said court may, in its discretion, order execution of a judgment or
final order even before the expiration of the period to appeal. L

After the trial court has lost jurisdiction, the motion for execution
pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be
stated in a special order after due hearing.

(b) Execution of several, separate or partial judgments. A several, separate or

partial judgment may be executed under the same terms and conditions as
execution of a judgment or final order pending appeal. (2a)

VBJ Notes:

If the case does not fall within any of these excepted instances where the judgment is
immediately executory, can the court nonetheless order an execution of judgment, that is, can the trial
court nonetheless order execution of judgment even if the case is already on appeal? Even after
perfection of the appeal? Well on the part of the appellate court there is no question that if the case is
already on appeal, the case is now within the jurisdiction of the appellate court, and the appellate court
can order the execution of judgment pending appeal for special reasons. How about the trial court, can
a trial court, that is the court of origin, order the execution of a judgment pending appeal,
notwithstanding the perfection of the appeal, notwithstanding the fact that the jurisdiction may already
be vested with the appellate court? The answer is YES. In fact if you go back to Rule 41 and 42, that is
one of the powers that is enjoyed by a trial court exercising residual jurisdiction that is if an appeal has
been perfected, the trial court exercises residual jurisdiction over the case, over certain matters. And
one of these matters that could still be decided by the trial court even if there is already an appeal is the
issuance of an execution pending appeal. That again is covered by the residual jurisdiction of the trial
court. We have to refer to Rule 41 and Rule 42 when it comes to the exercise of residual jurisdiction by
the trial court.

Filing of a bond by the judgment-creditor is not a sufficient reason to justify execution

If the trial court decides to execute a judgment pending appeal, the trial court should see to it
that there are special reasons for the granting of the motion for execution pending appeal. If the
judgment creditor files a motion for execution pending appeal, and the justification given by the
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judgment creditor is that it is willing to file a bond in whatever amount that may be required by the trial
court, if only to justify the execution pending appeal will the ability and willingness of the judgment-
creditor to file a bond be a special reason to justify the court in granting execution pending appeal? The
Supreme Court said NO. Even if the judgment creditor is willing and able to file a bond so that a trial
court will execute a decision pending appeal, the filing of a bond will not constitute a special reason.
According to the Supreme Court, if we are going to allow execution pending appeal simply because the
judgment-creditor is willing to put up a bond, then Rule 39 will become a useless provision, because
every creditor will now ask for execution simply because it is willing and able to file a bond. There must
be a special reason that is given by the court in granting a motion for execution pending appeal.

Rule 39 Section 3: Stay of discretionary execution

Discretionary execution issued under the preceding section may be stayed upon approval by the
proper court of a sufficient supersedeas bond filed by the party against whom it is directed, conditioned
upon the performance of the judgment or order allowed to be executed in case it shall be finally
sustained in whole or in part. The bond thus given may be proceeded against on motion with notice to
the surety. (3a) sm

VBJ Notes:
If the court grants an execution pending appeal, will the judgment debtor be left helpless, that
is, can he still stop the execution decreed by the court? Well Rule 39 also gives the judgment-debtor a
remedy in order to stop execution. All he has to do is to file a supersedeas bond and that supersedeas
bond will stop execution pending appeal. Can he file an appeal from the order granting this execution
pending appeal? The remedy is not appeal. The remedy is Rule 65, file a petition for certiorari or
prohibition, in order to set aside the order of the court allowing execution pending appeal.

Rule 39 Section 4: Judgments not stayed by appeal

Judgments in actions for injunction, receivership, accounting and support, and such other
judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable
after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered
by the trial court. On appeal therefrom, the appellate court in its discretion may make an order
suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of
support.

The stay of execution shall be upon such terms as to bond or otherwise as may be considered
proper for the security or protection of the rights of the adverse party. (4a)

VBJ Notes:

We are talking about execution of judgments which are final and executory, that is always the
general rule. When the judgment is final and executory, the execution of the judgment becomes a
ministerial duty on the part of the court. Conversely, if the judgment is not yet final and executory, it
cannot be executed. It should not be executed in fact. So if a judgment is on appeal, there is no way that
the judgment-creditor can ask for the execution of the judgment as a general rule. But again, just like
the other general rules in procedure, there are certain instances, which are exempted from the
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coverage of this general rule. Rule 39 cites already four instances where a judgment is immediately
executory. We dont have to wait for the entry of the judgment before we can execute the judgment.
And this is execution pending appeal or execution discretionary as the case may be. In actions for
support, receivership, accounting, injunction, they are immediately executory. So an additional instance
given in the special civil action of unlawful detainer and forcible entry, the judgment of the inferior court
favorable to the plaintiff is also immediately executory. So the general rule is that if a judgment is not
yet final and executory, the court cannot execute a judgment except in these instances recognized by
the Rules.

Rule 39 Section 5: Effect of reversal of executed judgment

Where the executed judgment is reversed totally or partially, or annulled, on appeal or

otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as
equity and justice may warrant under the circumstances. (5a) d

Rule 39 Section 6: Execution by motion or by independent action

A final and executory judgment or order may be executed on motion within five (5) years from
the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a
judgment may be enforced by action. The revived judgment may also be enforced by motion within five
(5) years from the date of its entry and thereafter by action before it is barred by the statute of
limitations. (6a)

VBJ Notes:

Can the judgment creditor ask for the execution at its convenience, that is, is there a time frame
within which the judgment creditor could ask for execution through the filing of a motion? Rule 39 says
that the judgment creditor should ask for an execution within five years from entry of judgment.
Thereafter, the judgment could be executed not through the filing of a motion, but through an
independent action that is before the lapse of the prescriptive period. You will note that Rule 39 does
not fix the prescriptive period for the execution of a final and executory judgment. But we know very
well that the period is ten years from the entry of judgment. The 10 year period is found in the Civil
Code, that is the prescriptive period for the execution of a final and executory judgment. So the Rules of
Court has divided the 10 year period into two parts, that is the first five years, execute through a motion
for execution, and then the second five year period the judgment could be executed through the filing of
an independent action for the revival of the decision.

The first five year period is not really a fixed five year period, again according to the Supreme
Court. This five year period could be extended if the judgment creditor fails to obtain the execution or
the court fails to issue a writ of execution and the delay is traceable to the fault or to the conduct of the
judgment debtor. In one case involving a bank; now you see these bankers are funny people also.
According to bankers, a bank deposit is just like a woman, because after withdrawal, you lose all your
interest. Now in this case involving a bank, a decision was rendered in favor of a bank, claiming for the
payment of money. The bank filed a motion for execution within five year period, the first five years
from entry of judgment. In order to delay the execution of the judgment, the judgment debtor filed first
a petition for relief from judgment and asked for an injunctive relief against execution, which the court

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granted. The petition for relief was not decided right away, it took the court a period of more than five
years before this petition for relief could be decided. It was not really the fault of the judge because the
presiding judge retired, and a new one was appointed, and the new appointee was re assigned to
another court. So there was really a delay in the issuance of the writ of execution, so that when the
court decided the motion for execution, the motion was already pending in court for eight years. It was
three years past the five year period provided in the Rules for the execution of a judgment through a
mere motion. The judgment-debtor this time capitalized on this provision in Rule 39 which says, that the
execution of a final and executory judgment through a mere motion should be done within the first five
years from entry. And the court said it is unfair because the delay in the issuance of the writ for the
granting of the order is traceable to the conduct of the judgment debtor in filing a petition for relief and
in asking or the issuance of a writ of preliminary injunction. So according to the Supreme Court, to be
fair to everybody, we should consider the five year period extended accordingly, that is for another
three years, within which the court issue a writ of execution through a motion filed by the judgment
creditor. So the five year period is not a define and fixed five year period from entry of judgment. It
could be extended if the delay is traceable to the conduct or causes traceable to the acts of the
judgment debtor.

In another case, there was a motion for execution filed within the five year period. There was a
levy made on properties of the defendant/judgment debtor. The rule is after levy, there should be a
public auction sale of the properties levied upon. But there was no auction sale within the five year
period. The sheriff scheduled the sale of the levied properties after the expiration of the five year
period. But you will note that the levy was made within the first five years. According to the Supreme
Court, as long as there is a levy made within the first five years, the public auction sale could be
conducted even after the lapse of the five year period. The rule does not require that the levy was be
made within the first five years and the auction sale must also be conducted during the first five years. It
is enough that there is an act of levy made within the first five years. The auction sale could be
conducted thereafter.

In another case, the judgment-creditor neglected to ask for an execution of the judgment within
the first five years. On the seventh year, the judgment creditor decided to enforce the judgment. So the
judgment-creditor filed a motion for execution. The judgment debtor was furnished a copy of the
motion but the judgment debtor disregarded the motion served upon him although that motion asked
for an execution after the lapse of the first five years. A court usually will grant a motion if there is no
opposition from the adverse party. So what the trial court did was to grant the motion considering that
the judgment debtor did not at all file an opposition. After the motion was granted, the court issued a
writ of execution. When the sheriff attempted to enforce the writ by levying on the properties of the
judgment debtor, this time the judgment debtor resisted. The judgment debtor said that the levy will be
unlawful because the writ of execution was issued after the lapse of the five year period. But the
judgment creditor argued that there was no opposition at all coming from the judgment debtor at the
time when the motion for execution was heard by the trial court. The issue raised before the Supreme
court and the Supreme Court said that the execution, the order of execution and any levy that will be
made by the sheriff is unlawful, that is after the expiration of five years, the trial court is deprived of
jurisdiction to enforce the judgment through a mere motion for execution. So there must be a motion
within the five year period.

If we are going to apply these principles given by the Supreme Court, as long as there is a
motion for execution filed within the first five years, the court can act on the motion even after the
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expiration of the five year period. What is important is that the plaintiff/judgment-creditor manifest his
desire to ask for the execution of the judgment within the first five years.

Revival of judgment under RULE 39 Section 6 in relation to RULE 39 Section 34

After the expiration of the five year period, section 6 talks about the enforcement of the
decision through an independent action, that is, jurisprudence calls the action as an action to revive a
judgment. We should read in relation to revival of judgment section 34 of Rule 39. Section 6 in fact does
not even use the term revival of judgment. The term of revival of judgment is used in section 34 of Rule
39.

Is there a difference between the revival of judgment contemplated in Section 6, that is after
the first five year period has expired and the revival of judgment that is envisioned in section 34? There
are differences and these differences are substantial. (1) The revival of judgment mentioned in Section
34 assumes that a judgment is executed within the first five years, while the revival of judgment as an
independent action assumes that there is no execution within the first five years. (2) In section 34, the
revival of judgment here could be carried out through the filing of a mere motion in court. The revival of
judgment as an independent action course cannot be carried through a mere filing of a mere motion.
There should be an independent action for the revival of the judgment. (3) In Section 34 the party who
files a motion for revival of a judgment is not the original judgment creditor, but he is the highest bidder
during the public auction sale. And the reason why he is allowed to ask for a revival of judgment through
a motion is that he is deprived of the property he has purchased at public auction. While in the filing of
an independent action for the revival of judgment, after the lapse of the five year period, the plaintiff is
the judgment creditor himself, or his assignee or his successor in interest. So you should take note of the
different factual situations, that are envisioned in Section 34 which uses the phrase revival judgment
and the revival of judgment that is contemplated after the expiration of the first five years.

Rule 39 Section 7: Execution in case of death of party

In case of the death of a party, execution may issue or be enforced in the following manner: P

(a) In case of the death of the judgment obligee, upon the application of his executor
or administrator, or successor in interest;

(b) In case of the death of the judgment obligor, against his executor or administrator
or successor in interest, if the judgment be for the recovery of real or personal
property, or the enforcement of a lien thereon;

(c) In case of the death of the judgment obligor, after execution is actually levied upon
any of his property, the same may be sold for the satisfaction of the judgment
obligation, and the officer making the sale shall account to the corresponding
executor or administrator for any surplus in his hands. (7a)

Rule 39 Section 8: Issuance, form and contents of a writ of execution

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 The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the
court which granted the motion; (2) state the name of the court, the case number and title, the
dispositive part of the subject judgment or order; and (3) require the sheriff or other proper officer to
whom it is directed to enforce the writ according to its terms, in the manner hereinafter provided: Pa

(a) If the execution be against the property of the judgment obligor, to satisfy the
judgment, with interest, out of the real or personal property of such judgment
obligor;

(b) If it be against real or personal property in the hands of personal representatives,

heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to
satisfy the judgment, with interest, out of such property;

(c) If it be for the sale of real or personal property, to sell such property, describing it,
and apply the proceeds in conformity with the judgment, the material parts of
which shall be recited in the writ of execution; P

(d) If it be for the delivery of the possession of real or personal property, to deliver the
possession of the same, describing it, to the party entitled thereto, and to
satisfy any costs, damages, rents, or profits covered by the judgment out of
the personal property of the person against whom it was rendered, and if
sufficient personal property cannot be found, then out of the real property;
and

(e) In all cases, the writ of execution shall specifically state the amount of the interest,
costs, damages, rents, or profits due as of the date of the issuance of the writ,
aside from the principal obligation under the judgment. For this purpose, the
motion for execution shall specify the amounts of the foregoing reliefs sought
by the movant. (8a)

Rule 39 Section 9: Execution of judgments for money, how enforced

(a) Immediate payment on demand. The officer shall enforce an execution of a judgment for
money be demanding from the judgment obligor the immediate payment of the full amount stated in
the writ of execution and all lawful fees. The judgment obligor shall pay in cash, certified bank check
payable to the judgment obligee, or any other form of payment acceptable to the latter, the amount of
the judgment debt under proper receipt directly to the judgment obligee or his authorized
representative if present at the time of payment. The lawful fees shall be handed under proper receipt
to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of
the court that issued the writ.

If the judgment obligee or his authorized representative is not present to receive payment, the
judgment obligor shall deliver the aforesaid payment to the executing sheriff. The latter shall turn over
all the amounts coming into his possession within the same day to the clerk of court of the court that

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issued the writ, or if the same is not practicable, deposit said amounts to a fiduciary account in the
nearest government depository bank of the Regional Trial Court of the locality.

The clerk of said court shall thereafter arrange for the remittance of the deposit to the account
of the court that issued the writ whose clerk of court shall then deliver said payment to the judgment
obligee in satisfaction of the judgment. The excess, if any, shall be delivered to the judgment obligor
while the lawful fees shall be retained by the clerk of court for disposition as provided by law. In no case
shall the executing sheriff demand that any payment by check be made payable to him.

(b) Satisfaction by levy. If the judgment obligor cannot pay all or part of the obligation in cash,
certified bank check or other mode of payment acceptable to the judgment obligee, the officer shall levy
upon the properties of the judgment obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from execution giving the latter the option to
immediately choose which property or part thereof may be levied upon, sufficient to satisfy the
judgment. If the judgment obligor does not exercise the option, the officer shall first levy on the
personal properties, it any, and then on the real properties if the personal properties are insufficient to
answer for the judgment.

The sheriff shall sell only a sufficient portion of the personal or real property of the judgment
obligor which has been levied upon.

When there is more property of the judgment obligor than is sufficient to satisfy the judgment
and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the
judgment and lawful fees.

Real property, stocks, shares, debts, credits, and other personal property, or any interest in
either real or personal property, may be levied upon in like manner and with like effects as under a writ
of attachment.

(c) Garnishment of debts and credits. The officer may levy on debts due the judgment obligor
and other credits, including bank deposits, financial interests, royalties, commissions and other personal
property not capable of manual delivery in the possession or control of third parties. Levy shall be made
by serving notice upon the person owing such debts or having in his possession or control such credits to
which the judgment obligor is entitled. The garnishment shall cover only such amount as will satisfy the
judgment and all lawful fees.

The garnishee shall make a written report to the court within five (5) days from service of the
notice of garnishment stating whether or not the judgment obligor has sufficient funds or credits to
satisfy the amount of the judgment. If not, the report shall state how much funds or credits the
garnishee holds for the judgment obligor. The garnished amount in cash, or certified bank check issued
in the name of the judgment obligee, shall be delivered directly to the judgment obligee within ten (10)
working days from service of notice on said garnishee requiring such delivery, except the lawful fees
which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits or credits sufficient to satisfy the
judgment, the judgment obligor, if available, shall have the right to indicate the garnishee or garnishees

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who shall be required to deliver the amount due; otherwise, the choice shall be made by the judgment
obligee.

The executing sheriff shall observe the same procedure under paragraph (a) with respect to
delivery of payment to the judgment obligee. (8a, 15a) cdtai

VBJ Notes:

When the award is for the payment of money, as we said earlier, and the judgment-debtor
refuses to voluntarily satisfy the award, the remedy of the court and of the judgment-creditor is to
compel the debtor to pay by making a levy on property of the judgment-debtor. A levy should always be
accompanied by an auction sale of the property. So we cannot have an execution of judgment which
ends up with the levy. After the levy, there must be a sale of the property at public auction, and that
sale must be in accordance with Rule 39.

Since levy must be accompanied later on by a public auction sale of the property, the doctrine is
that if the levy is unlawful or void, the public auction sale will also be void. So if there is a levy on the
properties of the debtor, and the levy is made on properties exempt from execution, the levy is null and
void. Even if the properties are sold thereafter, the sale will also be void. In other words, the highest
bidder at the public auction sale will not acquire any right whatsoever. So a valid public auction sale
presumes that the levy on the properties was also valid right from the very beginning.

Final attachment under RULE 39 vis--vis preliminary attachment under RULE 57

In the levy of properties under RULE 39 and this is by virtue of a writ of execution, the levy is
sometimes referred to as final attachment in order to distinguish it from RULE 57, which is the rule on
preliminary attachment. The same rules govern preliminary attachment and final attachment when it
comes to the manner by which these properties are levied upon. But of course in the case of preliminary
attachment, since there is no judgment yet rendered by the court, the preliminary attachment will end
up only with the attachment of the properties. There could be no sale thereafter because a decision has
not yet been rendered by the court. Under Rule 39 the final attachment which is levy on the execution
of the properties should always be accompanied by an auction sale of the properties.

Levy on execution of real properties vs. levy on execution of personal properties

In the levy of real properties, the levy is quite different from the levy on execution of personal
properties. And the levy is also different from the levy of properties which are not capable of manual
delivery. In the case of a real property subject to levy, the sheriff or the court will not actually take over
physical possession of the real property. What the court/sheriff does when there is a levy on real
property is just go to the office of the Register of Deeds and annotate the fact that a certain levy has
been made on the real property. The sheriff cannot dispossess the judgment-debtor in the meantime.
So even if a piece of land is already the subject of a levy, the judgment-debtor who is in possession, will
continue to be in possession of the property.

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 But if the property is personal property capable of manual delivery like a car, the sheriff will take
over the physical possession of the car. So the judgment-debtor will be deprived of the use and
enjoyment of a personal property capable of manual delivery.

Garnishment of debts and credits

If the property of a debtor is a bank account, then we apply the rule on garnishment of the
property. And when we took up the rule on intervention, we said that this is one instance where there is
a forced intervention. When the bank account of the judgment-debtor is garnished by the court or by
the sheriff obeying the order of the court, the bank in effect becomes a forced intervenor, that is the
bank will be holding the deposit of the judgment-debtor subject to further disposition ordered by the
court. Whether the bank likes it or not, it becomes a party to the case, it becomes an intervenor because
it must follow the orders of the court concerning his garnished bank account.

Auction sale of real and personal properties; right of redemption over real properties

When it comes to the auction sale of the real and personal property, there are also material
distinctions between the consequences of public auction sale under Rule 39. In the sale of real property
under Rule 39, there is always a right of redemption in the sale of personal property under Rule 39,
there is not right of redemption enjoyed by the judgment debtor. The existence of a right of redemption
under Rule 39 is a justification for the holding of a public auction sale of that real property and the
validity of that proceeding even if the price generated during the public auction sale is unconscionably
law. According to the court, if real property is levied upon under Rule 39, and the market value is P1M,
and during the auction sale, the highest bid is only P50,000 which unconscionably low, the fact that the
price generated is unconscionably low is not a sufficient ground to set aside and nullify the public
auction sale. According to the Supreme Court, the existence of a right of redemption in fact will benefit
the judgment-debtor if his real property worth P1M is sold for P50,000 since Rule 39 gives to the
judgment debtor a right to redeem the property.

The right of redemption will give to the judgment-debtor a privilege to get back his property for
only P50,000 plus some charges. In other words, if a P1M piece of land of the judgment debtor is sold at
public auction for P50,000, the judgment debtor can get back his property by producing not P1M, but by
producing only P50,000. So there is really no reason for a court to set aside a public auction sale of a
property even if the highest bid is unconscionably low. But we dont apply that rule when the property
sold at public auction is personal property, because there is no right of redemption when it comes to
personal property. So if the property levied upon is a car worth P500,000 and the highest bid is only
P30,000, that price is unconscionably low, the court can annul and set aside the same. In other words,
the highest bidder cannot get the car if the court considers the price as unconscionably low. The reason
again is that when it is a car that is sold at public auction under Rule 39, there is no right of redemption
given by Rule 39 to the judgment-debtor.

Rule 39 Section 9 (a): immediate payment on demand

In one case, there was a payment of money to sheriff in the form of a check. The check was
drawn payable to the order of the sheriff of the court. Because the amount was sizable, well the sheriff
is one of the persons who like us could not resist everything except temptation, that sheriff ran away

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with the money. He simply disappeared. So the question raised before the court was Who is going to
bear the loss? Is it the debtor or the creditor? According to the Supreme Court it is the debtor who
should bear the loss. Now in order to avoid this situation from recurring, Rule 39 now has introduced a
new provision which says that if there is going to be a payment by check or delivery of cash, then that
check should be made payable to the order of the judgment creditor, not drawn payable to the order of
the sheriff, or even drawn payable to the order of the cashier of the court. Rule 39 is clear in saying that
if there is payment by check, it must be drawn payable to the order of the creditor. And if the check is
delivered to the clerk of the court or to the cashier of the court, the cashier of the court should see to it
that the funds are turned over to the creditor within a very short period of time. I think its only 24 hours
or 2 days, there must be a turn over of the proceeds to the judgment-creditor. But nonetheless there is
still this doctrine, if the check is drawn payable to the order of the sheriff, and the sheriff runs away with
the money, that will not be the fault of the creditor. The loss will be shouldered by the debtor.

Independent action to revive a judgment under Section6 may be filed in a court other than that which
decided the case.

Lets go back to an independent action to revive a judgment. This independent action to revive a
judgment under Section 6 will not necessarily be filed with the same court that decided the case. So if
the original action was filed and decided by an inferior court the independent action to revive that
judgment will not be filed with the inferior court. An independent action to revive the judgment should
be filed with a Regional Trial Court. If the original action is for the recovery lets say of P300,000 which is
an action cognizable by an inferior court and the decision is entered and thereafter it is the subject of an
independent action to revive the judgment, the judgment will be filed with a Regional Trial Court. Why
do we file the independent action with the Regional Trial Court? Because the independent civil action to
revive is an action the subject matter of which is not capable of pecuniary estimation. If the original
action was tried and decided by a Regional Trial Court of Manila, will the independent civil action to
revive the judgment be filed also with the Regional Trial Court of Manila? Not necessarily. The action to
revive the judgment is cognizable by a Regional Trial Court but it is considered as a new action. In other
words, this new action must satisfy also the requirement of venue in Rule 4, so that if the parties in the
meantime, have changed their respective residences, then the independent action to revive the
judgment must be filed in the place where the plaintiff or the defendant now resides at the option of
the plaintiff.

Under Rule 39, a revived judgment will be treated a new judgment. We should not use the term
revived judgment. A revived judgment is always a new decision. Because this is a new decision, there
is no end, there is no limit as to the number of revivals that should be had concerning one and the same
decision. Again the reason is a revived judgment is always considered as a new decision so that it can
again be enforced within the prescriptive period of 10 years under the civil code. First five years,
through motion for execution. The second- five year period, through an independent action to revive. So
there is no more limit as to the number of times that a judgment could be revived, unlike in past
decisions where the court placed a limit as to the number of revivals that could be had involving one and
the same decision.

Rule 39 Section 10: Execution of judgments for specific act

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 (a) Conveyance, delivery of deeds, or other specific acts; vesting title. If a judgment directs a
party to execute a conveyance of land or personal property, or to deliver deeds or other documents, or
to perform any other specific act in connection therewith, and the party fails to comply within the time
specified, the court may direct the act to be done at the cost of the disobedient party by some other
person appointed by the court and the act when so done shall have like effects as if done by the party. If
real or personal property is situated within the Philippines, the court in lieu of directing a conveyance
thereof may by an order divest the title of any party and vest it in others, which shall have the force and
effect of a conveyance executed in due form of law. (10a)

(b) Sale of real or personal property. If the judgment be for the sale of real or personal
property, to sell such property, describing it, and apply the proceeds in conformity with the judgment.
(8[c]a)

(c) Delivery or restitution of real property. The officer shall demand of the person against
whom the judgment for the delivery or restitution of real property is rendered and all persons claiming
rights under him to peaceably vacate the property within three (3) working days, and restore possession
thereof to the judgment obligee; otherwise, the officer shall oust all such persons therefrom with the
assistance, if necessary, of appropriate peace officers, and employing such means as may be reasonably
necessary to retake possession, and place the judgment obligee in possession of such property. Any
costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a
judgment for money. (13a)

(d) Removal of improvements on property subject of execution. When the property subject of
the execution contains improvements constructed or planted by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove said improvements except upon special order of the court,
issued upon motion of the judgment obligee after due hearing and after the former has failed to remove
the same within a reasonable time fixed by the court. (14a)

(e) Delivery of personal property. In judgments for the delivery of personal property, the
officer shall take possession of the same and forthwith deliver it to the party entitled thereto and satisfy
any judgment for money as therein provided. (8a)

VBJ Notes:

In the process that we are discussing for the satisfaction of a judgment, that is we are talking
about levy on execution, sale at public auction, the award given by the court in its judgment is for the
payment of money. But when the award of the court is not for the payment of money, but for the
delivery of property of course we dont apply the principles of levy on execution. If the court directs the
judgment debtor to deliver let us say, possession of a piece of land to the judgment-creditor, the court
will not carry out a levy on the properties of the judgment-debtor. Since the award is only for the
delivery of real property, the court will simply issue an order directing the defendant to vacate the
property and turn over possession thereof to the judgment-creditor. If the judgment-debtor refuses to
vacate the property, as we said earlier this is not a ground for contempt on the part of the judgment-
debtor. All that the court will do is to tell the sheriff to throw out the judgment-debtor off the premises.
So the sheriff can ask the help of police officers so that they will drive out the defendant from the

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property. The same is true with the personal property that is ordered to be delivered. The sheriff will get
hold of the personal property and deliver it to the judgment creditor.

Rule 39 Section 11: Execution of special judgments

When a judgment requires the performance of any act other than those mentioned in the two
preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall
be served by the officer upon the party against whom the same is rendered, or upon any other person
required thereby, or by law, to obey the same, and such party or person may be punished for contempt
if he disobeys such judgment. (9a)

VBJ Notes:

Can the judgment debtor who refuses to comply with an awards be cited for contempt

The execution of a judgment would depend really on the tenor of the award. So how a judgment
is enforced or carried out entirely depends on the dispositive portion of the decision. You cannot set a
fixed rule as to which judgments in civil cases could be executed. A civil case could end up with an award
for payment of money. A civil case could also end up not for the payment of money but for the delivery
of properties. A civil case could also end up for the performance of a particular act, not for the payment
of money and not for the delivery of property. Now the manner by which these judgments could be
executed would depend again on the tenor of the dispositive portion contained in the decision of the
court.

Generally as a matter of general proposition if the judgment debtor refuses deliberately to

comply with an award given in a final and executory judgment, he cannot be cited for contempt of
court. Generally, contempt of court is not a remedy to enforce a judgment. If the judgment is for the
payment of money, and the judgment-debtor goes to the court and tells the court openly I have the
money to pay the creditor, but I do not like paying the creditor. I do not feel like obeying the court Ill
get sick if Ill obey the court, he cannot be cited for contempt of court even if he says he has the money
and he does not want to comply with the award given, that is for the payment of money.

The same is true if the award is for the delivery of property. If the judgment-debtor refuses to
obey the court, he refuses to deliver the property to the judgment-creditor, the court cannot have him
cited in contempt of court. It is only in the last situation where the judgment directs the judgment-
debtor to perform an act, that is not for the payment of money and not for the delivery of property,
where the recourse could be citation for contempt. So that is the general rule in execution of judgments.
Contempt is not a remedy generally available to the judgment-creditor. Are there exceptions to this
rule? Are there instances where the judgment-debtor could be cited in contempt of court if he refuses
to obey the decision of a court directing him to pay money, that is an exception to the general rule? The
answer is YES. There is one instance recognized by the Rules where the refusal of the judgment-debtor
to pay money as directed by the court or to deliver property as directed by the court could be a valid
ground for the citation of contempt of court. And this exceptional instance is provided in the provisional
remedy of support pendente lite. Thats the last provisional remedy. If a court orders a defendant to

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pay support pendente lite, or even support itself, not as a provisional remedy, but the
defendant/judgment debtor refuses to obey the order of the court, the court can issue both a writ of
execution and have the defendant cited in contempt of court. This is a very unusual situation again,
because it recognizes a situation where the payment of money could be compelled through a citation
for contempt.

For this matter, a judgment for support under our jurisprudence is a judgment that will never
become final and executory. So a judgment for support can be changed at any time by the court. It will
never become final and executory. The reason is because the entitlement of support on the part of the
petitioner will depend on two factors: the ability of the adverse to give support and the needs of the
petitioner. The ability of the adverse party changes from time to time. The same is true with the needs
of the petitioner, it will also change from time to time. So a judgment for support will never become
final and executory under Rule 39. It is subject to amendment or change by the court, if the
circumstances so dictate.

Rule 39 Section 12: Effect of levy on execution as to third persons

The levy on execution shall create a lien in favor of the judgment obligee over the right, title and
interest of the judgment obligor in such property at the time of the levy, subject to liens and
encumbrances then existing. (16a)

Rule 39 Section 13: Property exempt from execution

Except as otherwise expressly provided by law, the following property, and no other, shall be
exempt from execution:

(a) The judgment obligor's family home as provided by law, or the homestead in which
he resides, and land necessarily used in connection therewith;

(b) Ordinary tools and implements personally used by him in his trade, employment,
or livelihood;

(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such as
the judgment obligor may select necessarily used by him in his ordinary
occupation;

(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;

(e) Household furniture and utensils necessary for housekeeping, and used for that
purpose by the judgment obligor and his family, such as the judgment obligor
may select, of a value not exceeding one hundred thousand pesos;

(f) Provisions for individual or family use sufficient for four months;

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 (g) The professional libraries and equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding three thousand pesos in value;

(h) One fishing boat and accessories not exceeding the total value of one hundred
thousand pesos owned by a fisherman and by the lawful use of which he
earns his livelihood;

(i) So much of the salaries, wages, or earnings of the judgment obligor for his personal
services within the four months preceding the levy as are necessary for the
support of his family;

(j) Lettered gravestones;

(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out of
any life insurance;

(l) The right to receive legal support, or money or property obtained as such support,
or any pension or gratuity from the Government;

(m) Properties specially exempted by law.

But no article or species of property mentioned in this section shall be exempt from execution
issued upon a judgment recovered for its price or upon a judgment of foreclosure of a mortgage
thereon. (12a)

Rule 39 Section 14: Return of writ of execution

The writ of execution shall be returnable to the court issuing it immediately after the judgment
has been satisfied in part or in full. If the judgment cannot be satisfied in full within thirty (30) days after
his receipt of the writ, the officer shall report to the court and state the reason therefor. Such writ shall
continue in effect during the period within which the judgment may be enforced by motion. The officer
shall make a report to the court every thirty (30) days on the proceedings taken thereon until the
judgment is satisfied in full, or its effectivity expires. The returns or periodic reports shall set forth the
whole of the proceedings taken, and shall be filed with the court and copies thereof promptly furnished
the parties. (11a)

Rule 39 Section 15: Notice of sale of property on execution

Before the sale of property on execution, notice thereof must be given as follows:

(a) In case of perishable property, by posting written notice of the time and place of
the sale in three (3) public places, preferably in conspicuous areas of
municipal or city hall, post office and public market in the municipality or city
where the sale is to take place, for such time as may be reasonable,
considering the character and condition of the property;

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 (b) In case of other personal property, by posting a similar notice in the three (3)
public places above-mentioned for not less than five (5) days;

(c) In case of real property, by posting for twenty (20) days in the three (3) public
places above-mentioned a similar notice particularly describing the property
and stating where the property is to be sold, and if the assessed value of the
property exceeds fifty thousand (P50,000.00) pesos, by publishing a copy of
the notice once a week for two (2) consecutive weeks in one newspaper
selected by raffle, whether in English, Filipino, or any major regional language
published, edited and circulated or, in the absence thereof, having general
circulation in the province or city;

(d) In all cases, written notice of the sale shall be given to the judgment obligor, at
least three (3) days before the sale, except as provided in paragraph (a) hereof
where notice shall be given at any time before the sale, in the same manner
as personal service of pleadings and other papers as provided by Section 6 of
Rule 13.

The notice shall specify the place, date and exact time of the sale which should not be earlier
than nine o'clock in the morning and not later than two o'clock in the afternoon. The place of the sale
may be agreed upon by the parties. In the absence of such agreement, the sale of real property or
personal property not capable of manual delivery shall be held in the office of the clerk of court of the
Regional Trial Court or the Municipal Trial Court which issued the writ or which was designated by the
appellate court. In the case of personal property capable of manual delivery, the sale shall be held in the
place where the property is located. (18a)

Rule 39 Section 16: Proceedings where property claimed by third person

If the property levied on is claimed by any person other than the judgment obligor or his agent,
and such person makes an affidavit of his title thereto or right to the possession thereof, stating the
grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof
upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment
obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied on. In case of disagreement as to such
value, the same shall be determined by the court issuing the writ of execution. No claim for damages for
the taking or keeping of the property may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the filing of the bond.

The officer shall not be liable for damages for the taking or keeping of the property, to any third-
party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third
person from vindicating his claim to the property in a separate action, or prevent the judgment obligee
from claiming damages in the same or a separate action against a third-party claimant who filed a
frivolous or plainly spurious claim.

When the writ of execution is issued in favor of the Republic of the Philippines, or any officer
duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying

437
officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if
held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer
out of such funds as may be appropriated for the purpose. (17a)

VBJ Notes:

Section 16 of Rule 39 should be analyzed carefully. It refers to a terceria. A terceria is just a third
party claim, and the rule on terceria in Section 16, is also the rule on third party claims that we are going
to meet in preliminary attachment, as well as in replevin. Now what is this terceria or a third party
claim? It is just an affidavit submitted by a third person manifesting to the court that he owns the
property that has been levied upon. The third party claimant tells the court that the claimant, not the
judgment-debtor is the owner of the property subject of levy. So it is not a pleading. It is not similar to a
third party complaint in Rule 6. It is just a claim submitted by a stranger to the case in the form of an
affidavit telling the court that he has an interest, he has a title over the property that has been levied
upon by the court.

Since the third party claimant tells the court that he is the owner of the property or he has an
interest adverse to that of the judgment-debtor what the third party claimant in effect tells the court si
to do away with the levy in the meantime. Of course in that affidavit of third party claim he presents
evidence, also documentary evidence to support his claim that he is the owner of the property. Once
the sheriff receives this affidavit of third party claim, it is the duty of the sheriff to lift the levy over the
property, if the sheriff insist in carrying out the levy, the sheriff should demand from the judgment-
creditor that the judgment-creditor file a bond, so that there will be ample protection in favor of the
third party claimant if the sheriff will go ahead with the auction sale of that property.

Since a third party claim could easily be defeated by the judgment-creditor through the simple
expedient of filing a bond, the law, that is Rule 39, gives to third party claimant other options which will
enable him to protect his interest. If the judgment creditor files a bond and therefor the sheriff will go
ahead with the levy and sale of the property, the third party claimant can file his own complaint in court
in order to stop the sheriff from selling the property. Will this complaint be improper given that the
sheriff is just enforcing a valid and executory judgment of another court? The filing of an
action/complaint for the Reconveyance of the property by the sheriff or for the return to the third party
claimant of a property which he claims to be his own, is not improper. In fact it is remedy suggested in
Rule 39 that should be availed of by the third party claimant.

Can the second court before which the complaint has been filed by the third party-claimant, issue a
restraining order or a writ of preliminary injunction to stop the sheriff from selling the property?

The answer is YES. If this second court issues a writ of preliminary injunction or a temporary
restraining order that will prevent the sheriff from selling the property, will it not be considered as an
undue interference by one court over the processes of another court? That will not be considered as an
under interference. The reason is the levy by the sheriff over a property of a stranger is not a valid levy.
Rule 39 is premised on the assumption that the levy made by the sheriff is a valid levy. And for a levy
under rule 39 to be valid, the property must belong to the judgment-debtor. If the property belongs to
another person not involved in the litigation, the levy is not a valid levy. That is the reason why this new

438
court can properly issue a writ of preliminary injunction in order to stop the sheriff from carrying out the
auction sale of the property.

Supposing that the third party claimant fails to file a complaint, and he fails to stop the sheriff
from selling the property, and the sheriff therefor goes ahead with the sale. There will be a highest
bidder of that property. Can the third party claimant later on file a complaint against the highest bidder
for the recovery of the property sold at public auction? Again the answer is YES. The third party claimant
has all the options given in Rule 39 after filing a third party claim or even if he does not file a third party
claim, he can always seek the recovery of his property even if this property has been sold at public
auction to a highest bidder. The highest bidder cannot say that he is a buyer in good faith, because the
sheriff will always be notifying these prospective buyers at public auction that there is a third party claim
that has been filed with the court. So there is always notice of the existence of this third party claim.

Cannot the first court, the court which rendered the decision which gave rise to the writ of execution
resolve the issue of ownership presented by the third party claimant?

The court which issued the writ of execution is without jurisdiction to resolve the issue of ownership,
because that is not the issue that is raised in the pleadings between the parties. This is a matter that
arises long after the judgment has become final and executory.
Rule 39 Section 17: Penalty for selling without notice, or removing or defacing notice

An officer selling without the notice prescribed by Section 15 of this Rule shall be liable to pay
punitive damages in the amount of five thousand (P5,000.00) pesos to any person injured thereby, in
addition to his actual damages, both to be recovered by motion in the same action; and a person
willfully removing or defacing the notice posted, if done before the sale, or before the satisfaction of the
judgment if it be satisfied before the sale, shall be liable to pay five thousand (P5,000.00) pesos to any
person injured by reason thereof, in addition to his actual damages, to be recovered by motion in the
same action. (19a)

Rule 39 Section 18: No sale if judgment and costs paid

At any time before the sale of property on execution, the judgment obligor may prevent the sale
by paying the amount required by the execution and the costs that have been incurred therein. (20a)

Rule Section 19: How property sold on execution; who may direct manner and order of sale

All sales of property under execution must be made at public auction, to the highest bidder, to
start at the exact time fixed in the notice. After sufficient property has been sold to satisfy the
execution, no more shall be sold and any excess property or proceeds of the sale shall be promptly
delivered to the judgment obligor or his authorized representative, unless otherwise directed by the
judgment or order of the court. When the sale is of real property, consisting of several known lots, they
must be sold separately; or, when a portion of such real property is claimed by a third person, he may
require it to be sold separately. When the sale is of personal property capable of manual delivery, it
must be sold within view of those attending the same and in such parcels as are likely to bring the
highest price. The judgment obligor, if present at the sale, may direct the order in which property, real
or personal, shall be sold, when such property consists of several known lots or parcels which can be

439
sold to advantage separately. Neither the officer conducting the execution sale, nor his deputies, can
become a purchaser, nor be interested directly or indirectly in any purchase at such sale. (21a)

Comment:

All sales of property under execution must be made:

1. At public auction;

2. To the highest bidder;

3. To start at the exact time fixed in the notice;

4. After sufficient property has been sold to satisfy the execution, NO more shall be sold and any
EXCESS shall be promptly delivered to the judgment obligor or his authorized representative, unless
otherwise directed by the judgment or order of the court.

Distinction Ordinary Sale on Execution from Sale in Judicial Foreclosure of Mortgage

Ordinary Sale on Execution

1. Need not be confirmed by the court;

2. Right of redemption exist when property is real;

3. Title acquired after the expiration of the redemption period when final deed of conveyance is executed.

Sale in Judicial Foreclosure of Mortgage

1. Must be confirmed by the court in order to divest the rights in the property of the parties and to vest the
rights in the purchaser.

2. There is NO right of redemption, except by the mortgagor where the mortgagee is a bank or a banking
institution.

3. Title acquired upon entry of the confirmation and registration of the foreclosure sale.

xxx ________________________________________ xxx _________________________________xxx

Rule 39 Section 20: Refusal of purchaser to pay

If a purchaser refuses to pay the amount bid by him for property struck off to him at a sale
under execution, the officer may again sell the property to the highest bidder and shall not be
responsible for any loss occasioned thereby; but the court may order the refusing purchaser to pay into
the court the amount of such loss, with costs, and may punish him for contempt if he disobeys the
order. The amount of such payment shall be for the benefit of the person entitled to the proceeds of the
execution, unless the execution has been fully satisfied, in which event such proceeds shall be for the
440
benefit of the judgment obligor. The officer may thereafter reject any subsequent bid of such purchaser
who refuses to pay. (22a)

Comment:

The officer may again SELL the property to the highest bidder and shall not be responsible for any loss
occasioned thereby.

But the court may order the refusing purchaser to pay to the court the amount of such loss, with costs, and
may punish him for contempt if he disobeys the order. The officer may thereafter reject any subsequent
bid of such purchaser who refuses to pay.

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Rule 39 Section 21: Judgment obligee as purchaser

When the purchaser is the judgment obligee, and no third-party claim has been filed, he need
not pay the amount of the bid if it does not exceed the amount of his judgment. If it does, he shall pay
only the excess. (23a)

VBJ Notes:

In the public auction sales of real properties under Rule 39, the law does not disallow the
judgment creditor from submitting a bid for the property. So the judgment-creditor could
buy/participate in the auction sale of his debtors property. If he so participates and he turns out to be a
highest bidder, is he required to deliver the purchase price to the sheriff or to the court? If the purchase
price, if the highest bid of the judgment-creditor is exactly the amount of his claim, there is no more
need for him to deliver the purchase price to the sheriff. Are there instances where the judgment-
creditor will be forced to pay the purchase price even if his bid is equivalent to the amount that is due to
him under the decision? Under Rule 39, if the bid of the judgment-creditor is exactly the same as the
award given to him, he may still be required to pay the purchase price if there is a third party claim
submitted by a third person. So it is not correct to assume that the judgment-creditor. If he is the
highest bidder is free from delivering to the sheriff, the amount of his bid simply because it is equivalent
to the award given to him. If there is a third party claim, the judgment creditor will be compelled to
deliver the purchase price to the sheriff.

Comment:

When the purchaser is the judgment obligee, and no third party claim has been filed, he need not pay the
amount of the bid if it does NOT exceed THE AMOUNT of his judgment. If it does, he shall pay only the
excess.

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Rule 39 Section 22 Adjournment of sale

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 By written consent of the judgment obligor and obligee, or their duly authorized
representatives, the officer may adjourn the sale to any date and time agreed upon by them. Without
such agreement, he may adjourn the sale from day to day if it becomes necessary to do so for lack of
time to complete the sale on the day fixed in the notice or the day to which it was adjourned. (24a)

Comment:

1. If with written consent of the judgment obligor and obligee, or their duly authorized representatives: to
any date and time agreed upon.

2. IF without such agreement: From day to day if it becomes necessary to do so for lack of time.

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Rule 39 Section 23: Conveyance to purchaser of personal property capable of manual delivery

When the purchaser of any personal property, capable of manual delivery, pays the purchase
price, the officer making the sale must deliver the property to the purchaser and, if desired, execute and
deliver to him a certificate of sale. The sale conveys to the purchaser all the rights which the judgment
obligor had in such property as of the date of the levy on execution or preliminary attachment . (25a)

Comment:

When purchaser pays the purchase price, the personal property, capable of manual delivery, must be
delivered to him and IF DESIRED execute and deliver to him a certificate of sale.

xxx ________________________________________ xxx _________________________________xxx

Rule 39 Section 24: Conveyance to purchaser of personal property not capable of manual delivery

When the purchaser of any personal property, not capable of manual delivery, pays the
purchase price, the officer making the sale must execute and deliver to the purchaser a certificate of
sale. Such certificate conveys to the purchaser all the rights which the judgment obligor had in such
property as of the date of the levy on execution or preliminary attachment. (26a)

Comment:

In this case the officer MUST execute and deliver to the purchaser a certificate of sale.

xxx ________________________________________ xxx _________________________________xxx

Rule 39 Section 25: Conveyance of real property; certificate thereof given to purchaser and filed with
registry of deeds

Upon a sale of real property, the officer must give to the purchaser a certificate of sale
containing:

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 (a) A particular description of the real property sold;

(b) The price paid for each distinct lot or parcel;

(c) The whole price paid by him;

(d) A statement that the right of redemption expires one (1) year from the date of the
registration of the certificate of sale.

Such certificate must be registered in the registry of deeds of the place where the property is
situated. (27a)

Comment:

The officer must give to the purchaser a CERTIFICATE OF SALE.

CONTENTS of the certificate of sale:

1. A particular description of the real property sold;

2. The price paid for each distinct lot or parcel;

3. The whole price paid by him; and

4. A statement that the right of redemption expires one (1) year from the date of the registration of the
certificate of sale.

Note: Confirmation of the sale is not needed UNLIKE in judicial foreclosure of mortgage. The Certificate
of sale is merely provisional (Raymundo vs. Sunico, G.R. No. 8241, Sept. 27, 1913)

May the validity of an auction sale be attacked?

General Rule: NO, because of the presumption of regular performance of duty by the sheriff.

Exception:

1. When from the nature of the irregularity or from intrinsic facts, injury resulted therefrom. (Navarro vs.
Navarro, 76 Phil. 122)

2. When the price obtained is shockingly inadequate and it is shown that a better price can be obtained at
a resale. (Barrozo vs. Macadaeg, 83 Phil. 378)

Exception to the Exception: The rule that you can question the validity of the auction sale if the proce
obtained is shockingly inadequate does not apply when the property sold is real property.

xxx ________________________________________ xxx _________________________________xxx

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Rule 39 Section 26: Certificate of sale where property claimed by third person

When a property sold by virtue of a writ of execution has been claimed by a third person, the
certificate of sale to be issued by the sheriff pursuant to Sections 23, 24 and 25 of this Rule shall make
express mention of the existence of such third-party claim. (28a)

Comment:

The certificate of sale to be issued shall make express mention of the existence of such third-party claim.

xxx ________________________________________ xxx _________________________________xxx

Rule 39 Section 27: Who may redeem real property so sold

Real property sold as provided in the last preceding section, or any part thereof sold separately,
may be redeemed in the manner hereinafter provided, by the following persons:

(a) The judgment obligor, or his successor in interest in the whole or any part of the
property;

(b) A creditor having a lien by virtue of an attachment, judgment or mortgage on the

property sold, or on some part thereof, subsequent to the lien under which
the property was sold. Such redeeming creditor is termed a redemptioner.
(29a)

VBJ Notes:

There could be instances when aside from the judgment-debtor, other persons enjoy
also this privilege of redemption. And under Rule 39, we call these as redemptioners. So aside
from the judgment-debtor, other creditors who hold a lien subsequent to that of the attaching
creditor could also redeem the property. The assignee of the judgment-debtor could also
redeem the property. When the law says that the assignee of the judgment debtor could also
redeem the property, by implication that law tells us that the right of redemption is a property
right that is, it can be sold by the judgment debtor. So if the judgment debtor sells his right of
redemption, then the assignee buyer of that right of redemption will step into the shoes of the
judgment-debtor.

If there are several persons who are given the right to redeem the property, will there
be a conflict among these persons in the event that they all decide to redeem? There will be no
conflict in so far as Rule 39 is concerned. If the judgment-debtor has still a right to redeem, and
in fact he redeems the property, then any right of redemption will be cut-off. But if, it is a
redemptioner who redeems the property other redemptioners could further redeem the
property, and this is what I known in Rule 39 as the principle of successive redemption. So there
could be redemption one after the other, as long as the person who has last redeemed the
property is not the judgment-debtor. Once the judgment-debtor redeems the property, all other
rights of redemption are cut-off. And in successive redemption, the successive redemption could

444
be had even after the expiration of the 1 year period of redemption. So if there are three
redemptioners and one of them redeems on the last day of the twelfth month of the period of
redemption, the other redemptioners could still carry out a redemption within 60 days from the
date of the last redemption. Of course, when there is redemption of property, money will have
to be paid to the creditor who has acquired the property in the meantime. We cannot redeem a
property sold at public auction unless we dole out cash in order to pay off the last
redemptioner.

xxx ________________________________________ xxx _________________________________xxx

Rule 39 Section 28: Time and manner of, and amounts payable on, successive redemptions; notice to
be given and filed:

The judgment obligor, or redemptioner, may redeem the property from the purchaser, at any
time within one (1) year from the date of the registration of the certificate of sale, by paying the
purchaser the amount of his purchase, with one per centum per month interest thereon in addition, up
to the time of redemption, together with the amount of any assessments or taxes which the purchaser
may have paid thereon after purchase, and interest on such last named amount at the same rate; and if
the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment
under which such purchase was made, the amount of such other lien, with interest.

Property so redeemed may again be redeemed within sixty (60) days after the last redemption
upon payment of the sum paid on the last redemption, with two per centumthereon in addition, and the
amount of any assessments or taxes which the last redemptioner may have paid thereon after
redemption by him, with interest on such last-named amount, and in addition, the amount of any liens
held by said last redemptioner prior to his own, with interest. The property may be again, and as often
as a redemptioner is so disposed, redeemed from any previous redemptioner within sixty (60) days after
the last redemption, on paying the sum paid on the last previous redemption, with two per
centum thereon in addition, and the amounts of any assessments or taxes which the last previous
redemptioner paid after the redemption thereon, with interest thereon, and the amount of any liens
held by the last redemptioner prior to his own, with interest.

Written notice of any redemption must be given to the officer who made the sale and a
duplicate filed with the registry of deeds of the place, and if any assessments or taxes are paid by the
redemptioner or if he has or acquires any lien other than that upon which the redemption was made,
notice thereof must in like manner be given to the officer and filed with the registry of deeds; if such
notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens.
(30a)

VBJ Notes:

The Supreme Court has also come out with the principle that redemption laws should always be
interpreted liberally in favor of the judgment-debtor, so that if the judgment-debtor and the judgment
creditor agree that the period of redemption will not be 1 year from registration, but the agreement is
that the period of redemption will be three (3) years from registration of the same, that agreement
according to the Supreme Court, will be a valid agreement. The period of redemption under Rule 39 is

445
only 1 year from the registration of the deed of sale. If the parties extend that to 3 years, the Supreme
Court said theres nothing wrong with that agreement. In fact, it just illustrates a conversion of legal
redemption into conventional redemption. You can extend the period of redemption by agreement of
the parties.

Supposing the parties agree that period of redemption will only be 6 months from registration
of the deed of sale, will not the legal redemption be converted into conventional redemption as well?
According to the Supreme Court, that situation is not allowed under Rule 39. So the parties can extend
the period of redemption given in Rule 39, but the period of redemption cannot be reduced by
agreement between the parties.

Comment:

This right of redemption is transferable and may be voluntarily sold, but it cannot be levied upon by the
judgment creditor so as to deprive the judgment debtor of any further rights to the property.

Right of redemption:

1. Personal Property NONE; Sale is ABSOLUTE

2. Real Property There is a right of redemption.

Who may redeem (Sec. 27):

1. Judgment obligor, or his successor in interest, in the whole or any part of the property; OR

2. Redemptioner who is a creditor having a lien by virtue of an ATTACHMENT, JUDGMENT or

MORTGAGE on the property sold, SUBSEQUENT to the lien under which the property was sold.

Note: If his lien is PRIOR to the judgment, he is not a redemptioner because his interest in his lien are
fully protected (relate to Section 12)

When can redemption be made (Sec. 28)

A. BY THE JUDGMENT OBLIGOR:

Within one (1) year from the date of registration of the certificate of sale.

B. BY THE FIRST REDEMPTIONER

Within one (1) year from the date of registration of the certificate of sale; or

C. BY ALL SUBSEQUENT REDEMPTIONERS

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Within sixty (60) days from the last redemption, provided that the judgment debtor has not exercised his
right of redemption.

BUT, in all cases the judgment obligor shall have the entire period on one 1 year from the date of the
registration of the sale to redeem the property. If the judgment obligor redeems, no further redemption
is allowed and he is restored to his estate.

The period of redemption is NOT suspended by an action to annul the foreclosure sale.

The periods for redemption are not extendible or interrupted. The parties may, however agree on a longer
period, in such case. It would be a conventional redemption (Lazo vs. Republic Surety and Insurance Co.,
G.R. No. 27365, Jan. 30, 1970)

Redemption Price (Section 28)

A. By the Judgment Obligor or First Redemptioner:

1. Purchase price;

2. 1% interest thereon, up to the time of redemption;

3. Any amount of assessments or taxes which the purchaser may have paid thereon after purchase and
interest on such last named amount at the same rate; and

4. IF the purchaser be also a creditor having prior lien to that of the redemptioner, other than the judgment
under which such purchase was made, the amount of such other lien with interest.

B. By Subsequent Redemptioner:

1. Amount paid on the last redemption;

2. 2% interest thereon;

3. Any amount of assessments or taxes which the last redemptioner may have paid thereon after
redemption by him with interest on such last-named amount; and

4. Amount of any liens held by said last redemptioner prior to his own, with interest.

The redemption price for subsequent redemption shall be the same (redemption price becomes higher and
higher)

May redemption be paid in any form other than cash?

YES. The rule is construed liberally in allowing redemption (to aid rather than defeat the right) and it has
been allowed in the case of a cashiers check, certified bank checks, and even checks.

The offer to redeem must be accompanied with a bona fide tender or delivery of the redemption price.

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However, a formal offer to redeem with a tender is not necessary where the right to redeem is exercised
through the filing of a complaint to redeem in the courts, within the period to redeem.

Note: The periods for redemption in Sec. 28 are not extendible or interrupted. The parties may, however,
agree on a longer period of redemption but in such case, it would be a matter of conventional redemption.
Lazo vs. Republic Surety and Insurance Co., G.R. No. 27365, Jan. 30, 1970)

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Rule 39 Section 29: Effect of redemption by judgment obligor, and a certificate to be delivered and
recorded thereupon; to whom payments on redemption made

If the judgment obligor redeems, he must make the same payments as are required to effect a
redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored
to his estate. The person to whom the redemption payment is made must execute and deliver to him a
certificate of redemption acknowledged before a notary public or other officer authorized to take
acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the
registry of deeds of the place in which the property is situated, and the registrar of deeds must note the
record thereof on the margin of the record of the certificate of sale. The payments mentioned in this
and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer
who made the sale. (31a)

Comment:

The person to whom the redemption payment is made must execute and deliver to him a CERTIFICATE
OF REDEMPTION acknowledge before a notary public or other officer authorized to take
acknowledgements of conveyances of real property.

The payment mentioned in this and the last preceding sections may be made to the: (1) purchaser, or (2)
redemptioner, or (3) for him to the officer who made the sale.

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Rule 39 Section 30: Proof required of redemptioner

A redemptioner must produce to the officer, or person from whom he seeks to redeem, and
serve with his notice to the officer a copy of the judgment or final order under which he claims the right
to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or, if he
redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar
of deeds; or an original or certified copy of any assignment necessary to establish his claim; and an
affidavit executed by him or his agent, showing the amount then actually due on the lien. (32a)

Comment:

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Redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his
notice to the officer;

1. A copy of the judgment or final order under which he claims the right to redeem certified by the clerk
of court wherein the judgment or final order is entered; OR

2. If he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the
Register of Deeds; OR

3. An original or certified copy of any assignment necessary to establish his claim; OR

4. An affidavit executed by him or his agent showing the amount then actually due on the lien.

Note: When the original owner wants to redeem, there is no need for him to prove his right as a judgment
debtor.

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Rule 39 Section 31: Manner of using premises pending redemption; waste restrained

Until the expiration of the time allowed for redemption, the court may, as in other proper cases,
restrain the commission of waste on the property by injunction, on the application of the purchaser or
the judgment obligee, with or without notice; but it is not waste for a person in possession of the
property at the time of the sale, or entitled to possession afterwards, during the period allowed for
redemption, to continue to use it in the same manner in which it was previously used; or to use it in the
ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies
the property. (33a)

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Rule 39 Section 32: Rents, earnings and income of property pending redemption

The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income
of the property sold on execution, or the value of the use and occupation thereof when such property is
in the possession of a tenant. All rents, earnings and income derived from the property pending
redemption shall belong to the judgment obligor until the expiration of his period of redemption. (34a)

Comment:

Rights of the judgment debtor:

1. Remain in possession of the property;

2. Cannot be Ejected;

3. Use the property in the same manner it was previously used;

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4. Make Necessary repairs to buildings thereon while he occupies the property;

5. Use it in the ordinary course of husbandry; (Sec. 31)

6. Collect rents, earnings and income derived from the property until the expiration of period of
redemption. (Sec. 32)

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Rule 39 Section 33: Deed and possession to be given at expiration of redemption period; by whom
executed or given

If no redemption be made within one (1) year from the date of the registration of the certificate
of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed
whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof
given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and
possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the
date of the registration of the sale to redeem the property. The deed shall be executed by the officer
making the sale or by his successor in office, and in the latter case shall have the same validity as though
the officer making the sale had continued in office and executed it.

Upon the expiration of the right of redemption, the purchaser or redemptioner shall be
substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property
as of the time of the levy. The possession of the property shall be given to the purchaser or last
redemptioner by the same officer unless a third party is actually holding the property adversely to the
judgment obligor. (35a)

Comment:

The PURCHASER is entitled to a CONVEYANCE AND POSSESSION of the property if there is no

redemption made within 1 year from date of the registration of the certificate of sale, or LAST
REDEMPTIONER whenever 60 days have elapsed and no other redemption has been made.

He is substituted to and acquires all the rights, title, interest and claim of the judgment obligor to the
property at the time of levy. The purchasers right retroact to the date of levy.

Two documents which the sheriff executes in case of real property:

1. CERTIFICATE OF SALE. After the auction sale, he will execute in favor of the purchaser the
certificate of sale under Section 25. From the registration of the said certificate, the one year period starts.

2. DEED OF CONVEYANCE. If after one (1) year there is no redemption, a deed of conveyance is
executed (Section 33).

- The deed of conveyance is what operates to transfer to the purchaser whatever rights the judgment
debtor had in the property. The certificate of sale after execution sale merely is a memorial of the fact of
sale and does not operate as a conveyance.

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- The purchaser acquires no better right than what the judgment debtor had in the property levied upon.
Thus, if the judgment debtor had already transferred the property executed prior to the levy and no longer
has an interest in the property, the execution purchaser acquires no right (Pacheco vs. CA, G.R. No. L-
48689, August 31, 1987)

When a third person is in possession: The procedure is for the court to order a hearing and determine
the nature of such adverse possession.

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Rule 39 Section 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 reversed or set aside, or because the property
sold was exempt from execution, or because a third person has vindicated his claim to the property, he
may on motion in the same action or in a separate action recover from the judgment obligee the price
paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or he may, on
motion, have the original judgment revived in his name for the whole price with interest, or so much
thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same
force and effect as an original judgment would have as of the date of the revival and no more. (36a)

VBJ Notes:

If the property subject of a third party claim is sold at public auction to a highest bidder, and the
third party claimant eventually files a complaint against him for the recovery of the property,
reconveyance of the property. And the third party claimant succeeds in recovering the property, what is
the recourse of this highest bidder at the public auction sale? The recourse is the revival of judgment
mentioned in Section34. He can file a motion for the revival of that judgment so that he can recover the
purchase price that he has paid from the judgment creditor. Or if he does not want to run after the
judgment creditor he can ask for the revival of the judgment this time in his own name, so that he will
be stepping into the shoes of the original judgment-creditor.

Right of redemption can be the subject of levy on execution

We also said awhile ago that a right of redemption is a property right of the judgment-debtor.
And because it is a property right, it can be conveyed, it can be disposed of by the judgment-debtor. If a
right of redemption is a property right, can it be the subject of levy on execution? Well the answer is
YES. It could be the subject of a levy on execution, but not by the same attaching creditor. So if the
attaching creditor is A, and a property, a piece of land belonging to the judgment-debtor is sold at public
auction, the judgment debtor has a right to redeem the property from the highest bidder, even from A if
A turns out to be a highest bidder. Can A carry out another levy on the right of redemption given by Rule
39, the judgment debtor? If it is A who is going to carry out a levy, that is not possible. But if it is another
creditor who is going to impose a levy on that right of redemption, that is possible.

Why cannot the same attaching creditor impose a levy on the right of redemption given by Rule
39 to the judgment-debtor? The Supreme Court said that if the same attaching creditor is allowed to
451
impose a levy on the debtors right of redemption in effect we are going to negate the idea of giving a
redemption to the judgment debtor. He will be defeating the purpose of Rule 39 in giving a right of
redemption to the judgment-debtor or to the other redemptioners.

Amendment to the period of redemption with regards to banking institutions

When it comes to the period of redemption under Rule 39 which a period of 1 year from the
registration of the certificate of sale, there seems to be a change, an amendment to this period of
redemption when it comes to banking institutions as judgment-creditor. Under the General Banking Act
of 2000, the General Banking Act says that if the bank is a foreclosing mortgagee, or a foreclosing-
creditor, and the mortgagor is a juridical person that is, either a corporation or a partnership. The period
of redemption is until the registration on the certificate of sale, which should not exceed the period of
three months from the sale itself. So in the case of banking institutions where the judgment-debtor is a
juridical person not a natural person, the period of redemption does not start to run from the
registration of the certificate of sale. The period of redemption starts to run from the actual sale itself.
The bank is required to register the certificate of sale within three months from the actual sale itself,
and upon the registration of the certificate of sale, the right of redemption is cut-off. So there is a
substantial difference between a redemption given to a juridical person if the judgment-creditor is a
banking institution.

But even if the judgment-creditor is a banking institution, but the judgment-debtor is a natural
person, not a juridical person, the period of redemption as given in Rule 39 will still govern. That is the
period of redemption is 1 year counted from the registration of the certificate of sale.

Comment:

The purchaser may recover the purchase price when:

1. The purchaser or his successor in interest FAILS TO RECOVER POSSESSION of the property; or

2. Is evicted due to:

a. Irregularities in the proceedings concerning sale; or

b. Judgment has been reversed or set aside; or

c. The property sold was exempt from execution; or

d. A third person has vindicated his claim to the property.

When the sale was not effective under the circumstances in this Section, the purchaser may:

1. File a motion in the same action or file a separate action to recover from the judgment creditor the price
paid;

2. File a motion for revival of judgment in his name against the judgment debtor; or

452
3. Bring an action to recover possession of the property.

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Rule 39 Section 35: Right to contribution or reimbursement

When property liable to an execution against several persons is sold thereon, and more than a
due proportion of the judgment is satisfied out of the proceeds of the sale of the property of one of
them, or one of them pays, without a sale, more than his proportion, he may compel a contribution
from the others; and when a judgment is upon an obligation of one of them, as security for another, and
the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may
compel repayment from the principal. (37a)

Comment:

Contribution and reimbursement may be obtained in a separate action, unless cross-claims have been filed
and adjudicated in the same action, in which case, execution may issue to compel contribution or
reimbursement.

Remedies of the Judgment Creditor in aid of execution or if Judgment is not fully Satisfied

1. If the execution is returned unsatisfied, he may cause examination of the judgment debtor as to his
property and income. (Section 36)

2. He may cause examination of the debtor of the judgment debtor as to any debt owed by him or to any
property of the judgment debtor in his possession. (Section 37)

3. If after examination the court finds property of the judgment debtor, either in his own hands or that of
any person, the court may order the property applied to the satisfaction of the judgment. (Section 37)

4. A party or other person may be compelled, by an order or subpoena, to attend before the court or
commissioner to testify as provided in Sec. 36 & 37. (Section 38)

5. If the court finds the earnings of the judgment obligor for his personal services are more than sufficient
for his familys needs, it may order payment in fixed monthly installments. (Section 40)

6. The court may appoint a receiver for the property of the judgment debtor not exempt from execution or
forbid a transfer or disposition or interference with such property. (Section 41)

7. If the court finds that the judgment debtor has an ascertainable interest in real property either as
mortgagor, mortgagee, or otherwise, and his interest can be ascertained without controversy, the court
may order the sale of such interest. (Section 42)

8. If the person alleged to have the property of the judgment debtor or the person indebted to him, claims
an adverse interest in the property, or denies the debt, the court may authorize the judgment-creditor to
institute an action to recover the property, forbid its transfer and may punish disobedience for contempt.
(Section 43)

453
Note: The person indebted to the judgment obligor may pay to the sheriff holding the writ of execution
the amount of his debt or so much thereof as may be necessary to satisfy the judgment, and the sheriffs
receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the judgment
obligee on the execution (Section 39)

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Rule 39 Section 36: Examination of judgment obligor when judgment unsatisfied

When the return of a writ of execution issued against property of a judgment obligor, or any one
of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in
part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the
court which rendered the said judgment, requiring such judgment obligor to appear and be examined
concerning his property and income before such court or before a commissioner appointed by it, at a
specified time and place; and proceedings may thereupon be had for the application of the property and
income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall
be so required to appear before a court or commissioner outside the province or city in which such
obligor resides or is found. (38a)

VBJ Notes:

After all these processes are observed by the court, that is in instances where the award of the
court is for the payment of money, but the sheriff reports to the court that the judgment has not yet
been satisfied. Will the judgment creditor be forced to consider his claim as a bad debt? That is, is his
recourse simply to report in his income tax returns that there is a bad debt in his favor, because this is
supported by a final and executory judgment? Rule 39 gives him three additional remedies, that is, if
there is a levy on execution but the sheriff reports to the court that the judgment has not yet been
satisfied in full. The three remedies given in Rule 39 available to the judgment creditor are the following
(1) the judgment creditor can ask for the examination of the judgment debtor by the court. The
examination of the judgment debtor by the court pertains to inquiries by the court as to the income and
other properties of the judgment debtor, which the court may have knowledge. If the court is satisfied
that the income of the judgment debtor is more than enough to support himself and his family, then the
court may issue an order directing the judgment-debtor to pay his obligation on installments.

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Rule 39 Section 37: Examination of obligor of judgment obligor

When the return of a writ of execution against the property of a judgment obligor shows that
the judgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court
which issued the writ, that a person, corporation, or other juridical entity has property of such judgment
obligor or is indebted to him, the court may, by an order, require such person, corporation, or other
juridical entity, or any officer or member thereof, to appear before the court or a commissioner
appointed by it, at a time and place within the province or city where such debtor resides or is found,
and be examined concerning the same. The service of the order shall bind all credits due the judgment
obligor and all money and property of the judgment obligor in the possession or in the control of such

454
person, corporation, or juridical entity from the time of service; and the court may also require notice of
such proceedings to be given to any party to the action in such manner as it may deem proper. (39a)

VBJ Notes:

If this turns out to be impractical, that is the judgment-debtor does not have sufficient income
to support himself and his family, the second alternative given by Rule 39 to the judgment-creditor is to
ask for the examination of a debtor of the judgment-debtor. It is simply possible that third persons owe
the judgment-debtor certain obligations. Of course the remedy if the judgment-creditor is aware of the
existence of these obligations owing to the judgment-debtor by strangers is to garnish the account. But
if the third persons do not acknowledge that they are indebted to the judgment-debtor, the recourse of
the judgment-creditor is to ask for the examination of a debtor of the judgment-debtor, and if there is
evidence to show that these third persons really owe to the judgment-debtor certain amounts of
money, which are not exempt from levy on execution, the court can even issue an order allowing the
judgment-creditor to file a separate complaint for the recovery of these accounts. Will it not violate the
principle that the plaintiff must always have a cause of action? Does the judgment-creditor have a cause
of action against these third person considering that he is not the creditor of these third person? Under
Rule 39, this would serve as an exception. Even if the judgment-creditor is not really the creditor of
these third persons, he is authorized by law to enforce a right belonging to the judgment-debtor.

Appointment of receiver

The third remedy available to the judgment-creditor in case the execution is returned
unsatisfied is to ask for the appointment of a receiver of properties belonging to the judgment-debtor.
So this illustrates a situation where the appointment of a receiver which is a provisional remedy, could
take place even after the court has rendered a final and executory judgment. Normally, our concept of a
provisional remedy is that these are remedies availed of during the pendency of a case. Here is an
instance where a provisional remedy is made available to a party even after the court has decided the
case, even after the judgment rendered by the court has become final and executory.

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Rule 39 Section 38: Enforcement of attendance and conduct of examination

A party or other person may be compelled, by an order or subpoena, to attend before the court
or commissioner to testify as provided in the two preceding sections, and upon failure to obey such
order or subpoena or to be sworn , or to answer as a witness or to subscribe his deposition, may be
punished for contempt as in other cases. Examinations shall not be unduly prolonged, but the
proceedings may be adjourned from time to time, until they are completed. If the examination is before
a commissioner, he must take it in writing and certify it to the court. All examinations and answers
before a court or commissioner must be under oath, and when a corporation or other juridical entity
answers, it must be on the oath of an authorized officer or agent thereof. (40a)

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Rule 39 Section 39 Obligor may pay execution against obligee

455
 After a writ of execution against property has been issued, a person indebted to the judgment
obligor may pay to the sheriff holding the writ of execution the amount of his debt or so much thereof
as may be necessary to satisfy the judgment, in the manner prescribed in Section 9 of this Rule, and the
sheriff's receipt shall be a sufficient discharge for the amount so paid or directed to be credited by the
judgment obligee on the execution. (41a)

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Rule 39 Section 40: Order for application of property and income to satisfaction of judgment

The court may order any property of the judgment obligor, or money due him, not exempt from
execution, in the hands of either himself or another person, or of a corporation or other juridical entity,
to be applied to the satisfaction of the judgment, subject to any prior rights over such property.

If, upon investigation of his current income and expenses, it appears that the earnings of the
judgment obligor for his personal services are more than necessary for the support of his family, the
court may order that he pay the judgment in fixed monthly installments, and upon his failure to pay any
such installment when due without good excuse, may punish him for contempt. (42a)

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Rule 39 Section 41: Appointment of receiver

The court may appoint a receiver of the property of the judgment obligor; and it may also forbid
a transfer or other disposition of, or any interference with, the property of the judgment obligor not
exempt from execution. (43a)

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Rule 39 Section 42: Sale of ascertainable interest of judgment obligor in real estate

If it appears that the judgment obligor has an interest in real estate in the place in which
proceedings are had, as mortgagor or mortgagee or otherwise, and his interest therein can be
ascertained without controversy, the receiver may be ordered to sell and convey such real estate or the
interest of the obligor therein; and such sale shall be conducted in all respects in the same manner as is
provided for the sale of real estate upon execution, and the proceedings thereon shall be approved by
the court before the execution of the deed. (44a)

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Rule 39 Section 43: Proceedings when indebtedness denied or another person claims the property

If it appears that a person or corporation, alleged to have property of the judgment obligor or to
be indebted to him, claims an interest in the property adverse to him or denies the debt, the court may
authorize, by an order made to that effect, the judgment obligee to institute an action against such
person or corporation for the recovery of such interest or debt, forbid a transfer or other disposition of

456
such interest or debt within one hundred twenty (120) days from notice of the order, and may punish
disobedience of such order as for contempt. Such order may be modified or vacated at any time by the
court which issued it, or by the court in which the action is brought, upon such terms as may be just.
(45a)

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Rule 39 Section 44: Entry of satisfaction of judgment by clerk of court

Satisfaction of a judgment shall be entered by the clerk of court in the court docket, and in the
execution book, upon the return of a writ of execution showing the full satisfaction of the judgment, or
upon the filing of an admission to the satisfaction of the judgment executed and acknowledged in the
same manner as a conveyance of real property by the judgment obligee or by his counsel unless a
revocation of his authority is filed, or upon the endorsement of such admission by the judgment obligee
or his counsel on the face of the record of the judgment. (46a)

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Rule 39 Section 45: Entry of satisfaction with or without admission

Whenever a judgment is satisfied in fact, or otherwise than upon an execution, on demand of

the judgment obligor, the judgment obligee or his counsel must execute and acknowledge, or indorse,
an admission of the satisfaction as provided in the last preceding section, and after notice and upon
motion the court may order either the judgment obligee or his counsel to do so, or may order the entry
of satisfaction to be made without such admission. (47a)

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Rule 39 Section 46: When principal bound by judgment against surety

When a judgment is rendered against a party who stands as surety for another, the latter is also
bound from the time that he has notice of the action or proceeding, and an opportunity at the surety's
request to join in the defense. (48a)

Comment:

When a judgment is rendered against the surety, the principal debtor is also bound by the judgment from
the time that he has notice of the action or proceeding, and an opportunity at the suretys request to join in
the defense.

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Rule 39 Section 47: Effect of judgments or final orders

The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction
to pronounce the judgment or final order, may be as follows:

457
 (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 or their successors in interest, that
only is deemed to have been adjudged in a former judgment or final order
which appears upon its face to have been so adjudged, or which was actually
and necessarily included therein or necessary thereto. (49a)

VBJ Notes:

The last two sections of Rule 39 pertain to the principle of res judicata and conclusiveness of
judgment with respect to local judgments and with respect to foreign judgments. In our school, we have
always required our students to memorize the last two sections of Rule 39, thats res judicata, that 47.
And 48 refers to judgments rendered by a foreign court.

Res judicata is a principle that bars the filing of a subsequent case by the same party against the
same party founded on the same cause. This is a public policy principle. The public policy being that
when a judgment becomes final and executory, it becomes immutable, that is it can no longer be
changed once a judgment becomes final and executory. Will we apply this principle, that is this
immutability of a final and executory judgment even if the judgment is clearly erroneous, even if it
clearly wrong? Well the answer is YES. Once a judgment has become final and executory, even if it is
clearly wrong, even if it is clearly erroneous, it can no longer be changed by the court.

This principle is illustrated by this case decided by the Supreme Court. A complaint was filed for
the recovery of money against two debtors. The complaint alleged that these debtors were solidarily
liable in favor of the plaintiff. A promissory note was presented by the plaintiff during the trial, and on
the face of the promissory note, the debtors acknowledge themselves as joint and solidary debtors. The
court was convinced that the nature of liability of the debtors was really solidary and that the plaintiff
was entitled to recover this indebtedness from the two debtors. When the judge wrote the decision, in
the dispositive portion thereof, the judge failed to use the word solidary in awarding to the plaintiff
the amount sought to be recovered by the plaintiff. So the dispositive portion of the decision simply said
that the debtors are bound to pay to the creditor lets say the sum of P1M. The judgment-creditor was
of course furnished a copy of the decision. The judgment creditor did nothing, and the same is true with

458
the judgment-debtor. They received copies of the decisions, they did not appeal, and eventually the
judgment became final and executory. At the time of the execution, the creditor wanted to recover from
anyone of the debtors the sum of P1M because when the debtors are solidary, anyone of them could be
compelled to pay the whole obligation. This time, the two debtors resisted. The debtors said under the
judgment there is nothing mentioned about our solidary liability, and if we are going to apply civil law
principles, the assumption is that when there are two or more debtors, their obligation is presumed to
be a joint obligation, not a solidary obligation. The supreme court need that the debtors are correct. The
judgment has become final and executory. Well the judgment may be wrong in the sense that the
judgment failed to consider them a solidary debtors. But is not the law between the parties. So the
debtors should be considered only as joint debtors not as solidary debtor.

Clarificatory Judgment

But in another case, the decision rendered by a court was so poorly prepared that the creditor
could not understand what the award was all about. The debtors also could not understand what the
award was all about. Well on the part of the debtors they were not concerned at all, because anyway
they lost the case. But the decision was really equivocal, that is it could all be correct. The problem of
the court now was can it modify the decision to clarify the poor language used by the judge in writing
the decision, or should the court allow the parties to litigate anew that is file another complaint for the
purpose of determining what the decision was all about. The Supreme Court this time came out with the
concept of a clarificatory judgment. The Supreme Court said it is unfair if we are going to tell the parties
to file a new complaint solely for the purpose of determining the intention of the court in rendering the
judgment. The Supreme Court went on to say that the remedy of the court under these circumstances is
to render a clarificatory judgment.

But then another issue came out. Can a court render a clarificatory judgment even after that
judgment have become final and executory, given the principle of res judicata, that is the immutability
of a final and executory judgment? The Supreme Court said that we should allow the rendition of a
clarificatory judgment if the judgment is equivocal. That should be considered as an inherent power of a
court to render a clarificatory judgment, judgment that will clarify any ambiguity that appears in a
judgment rendered by it. So we now have another classification of a judgment that could be rendered
even if the original judgment has become final and executory - that is a clarificatory judgment which
could be rendered by a court even after judgment has become immutable. The only purpose is to
explain any doubt or ambiguity that appears in the original decision of the court.

Is there a conflict between the principle of res judicata and an independent action to revive a
judgment/action to annul a judgment under RULE 47?

In Rule 39 we said that after the lapse of five years, the judgment can no longer be executed
through a mere motion. The remedy of the judgment-creditor is to file an independent action to revive
the judgment. Will it not with the principle of res judicata? Are we not allowing the same parties to
litigate all over again involving the same cause of action? An independent action to revive a judgment
will not violate the principle of res judicata. See in res judicata, there are three identities required aside
from the other elements. Identity of parties, identity of cause of action and identity of subject matter.
Identity of the parties may be satisfied because it is still the same plaintiff and the defendant in the first
case. Identity of cause of action will not be satisfied because in revival of judgment, the cause of action

459
or the subject matter is the revival of a dormant decision. It is different from the cause of action in the
first case.

How about an action to annul a judgment under Rule 47? Does not annulment of a judgment
violate the principle of res judicata? It will not also violate the principle of res judicata. There could be
identity of parties, but there is no identity of cause of action, there is no identity of subject matter. The
purpose in a petition to annul a judgment is to set aside or to annul a judgment that is voidable, so that
the court could declare it void. It is different from the subject matter or the cause of action of the first
case. The cause of action in the first case could be recovery of money, could be recovery of property.
But the subject matter in a petition to annul a judgment is not recovery of money, is not recovery of
property. It is for the annulment and setting aside of final and executory judgment.

Section 47 and 48 emphasize two public policy principles that is, the first public principles is res
judicata or unalterability of a final and executory judgment. And section 48 emphasizes the public policy
principle that a final and executory judgment rendered by a court is enforceable only within the
territorial limits of the country where that court sits. In other words, a foreign judgment cannot be
enforced in a local court, that is through a motion.

Bar by prior judgment and conclusiveness of judgment

Res judicata embraces the whole section 47. So res judicata is used in its generic sense bar by
prior judgment is a specie of res judicata, and bar by prior judgment is the principle involved in
subparagraphs a and b of section 47. Subparagraph c refers to conclusiveness of judgment. But when
you are asked to define res judicata, you should cite the entirety of section 47. Do no limit yourself to
sections a and b. Res judicata again includes the concept of conclusiveness of judgment.

When a judgment becomes final and executory, that is a local judgment, it becomes unalterable.
It can no longer be charged. It can no longer be modified. Even if the judgment that has become final
and executory is rendered by an inferior court, the lowest court, as long as it has become final and
executory, it could not be changed by the same court or even by the Supreme Court itself. That is a
public policy principle. The reason being that when parties enter into a litigation, given the opportunity
to present their respective sides, when the decision becomes final and executory, they should not
allowed to re-litigate the same the same issue before another court. Otherwise, there will be no end to
litigations.

Supposing that the final and executory judgment is clearly wrong, it is erroneous, can it be changed?

The answer is still NO because this is a public policy principle. So even if a judgment that is final
and executory is clearly wrong or clearly erroneous, it cannot be modified by any court, even by the
Supreme Court.

But the Supreme Court has recognized the possibility of a final and executory judgment being
clarified. Thats why we now have the concept of a clarificatory judgment. A clarificatory judgment could
be rendered by a court even after a judgment has become final and executory.

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 Section 47 is the foundation of the classification of actions into in rem and in personam. So an
action is classified into in rem and in personam depending on the binding effect of a judgment. But here
are other actions which we have classified in the past like a real action or a personal action. In both real
and personal actions, the court will also have to render a judgment. And if that judgment rendered by
the court becomes final and executory, what is the effect of a judgment rendered by a court in real and
personal actions if that decision has become executory? The answer will still be section 47. If an action is
real or personal, and the decision is rendered by court and it becomes executory, the effect would still
be section 47. The reason is a real or personal action could also be further classified into whether that
real or personal action is in rem or in personam. Just like in Rule 4 venue, which is the basis of
classifying actions into real and personal. So if we are asked what is the venue of an action in rem or an
action in personam? then we just refer to Rule 4. All we have to do is to further classify whether the
action in rem or in personam is real or personal. So we are just applying the same principle. If an action
is real or personal it should be further classified into whether it is in rem or in personam in order to
determine the binding effect of a judgment. So it means to say that if an action is real action, but it is at
the same time in personam, the binding effect of that judgment will be found in subparagraph b of
section 47, which is the effect of actions in personam.

Essential elements of res judicata

The essential elements of res judicata are of course embodied in Section 47. So there must first
be a competent court. Competent court here means a court with competent jurisdiction over the
subject matter and over the person of the parties. So its the entirety of jurisdiction, not only jurisdiction
over the subject matter but also jurisdiction over the person of the parties.]

The other requisites, one of the essential is that the decision must be an adjudication upon the
merits. In other words, the court is expected to render a decision resolving the issues presented in the
pleadings or in the pre-trial order as the case ma be and the decision is based on the evidence presented
by the parties. Its really an adjudication upon the merits. May there be orders which do not fall within
the concept of adjudication of merit which could also be construed as falling within the concept of res
judicata? Well by express provision of the Rules, there are certain orders which are not really
adjudication upon the merits but which could be considered as res judicata as long as these orders
become final and executory.

Comment:

This refers to judgments which are considered as conclusive and may be rebutted directly by means of
relief from judgment or annulment of judgment or indirectly by offering them in evidence under the
parole evidence rule.

Two parts

1. Res Judicata also known as Bar by former judgment or Direct Estoppel by judgment. It covers
paragraphs (a) and (b) of Section 47

In Rem (paragraph a)

461
The decision is conclusive upon title of the thing, the will or administration or the condition, status or
relationship of the person. (Ex. Land Registration)

In Personam (paragraph b)

The judgment or final order is conclusive between parties and their successors in interest, litigating for the
same thing and under the same title and un the same capacity (Ex. Accion Reinvindicatoria)

2. Conclusive of Judgment also known as Estoppel by Verdict, or Estoppel by Record, or Collateral

Estoppel by Judgment or Preclusion of Issues or Rule of Auter Action Pendant. It covers paragraph (c).

Note: Auter Action Pendant A plea that another action is pending for the same cause.

Res Judicata (A Matter Adjudged) BAR BY PRIOR JUDGMENT

It is a rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive
as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent
action involving the same claim, demand or causes of action. (Blacks Law Dictionary)

Requisites:

1. A Final Judgment or order

- The judgment must be final and executory which is beyond the power of the court to alter.

2. Jurisdiction over the subject matter and the parties by the court rendering it:

- If the court did not acquire jurisdiction over the subject matter and the parties, the judgment is void and
CANNOT be invoked as res judicata.

3. Judgment upon the merits

- General Rule: A dismissal without trial is NOT an adjudication upon the merits.

- Exception: Under Section 3, Rule 17, where there is no trial but the dismissal shall have the effect of an
adjudication upon the merits.

4. Between the two cases:

a. There is identity of PARTIES

Identity of parties exist when (1) the parties in both cases are the same, or (2) the actions are between
those in privity with them, as between their successor in interest by title subsequent to the commencement
of the action, litigating for the same thing and under the same title and in the same capacity, or (3) where
there is substantially identify even if there are additional parties.

There is also identity of parties even if the defendant in the first case becomes the plaintiff, and vice versa
(HSBC vs. Aldecoa & Co. G.R. No. 8437, March 23, 1915)
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b. identity of SUBJECT MATTER;

c. identity of CAUSE OF ACTION;

There is identity of cause of action when the two actions are based on the same delict or wrong committed
by the defendant even if the remedies are different.

Note: No Res Judicata in:

1. Revival of Judgment Cause of action is for revival of dormant judgment.

2. Annulment of judgment cause of action is extrinsic fraud or lack of jurisdiction. Subject matter is the
judgment itself.

Under the doctrine of res judicata no matter how erroneous a judgment may be, once it becomes final, it
cannot be corrected.

CONCLUSIVENESS OF JUDGMENT

The issues actually and directly resolved in a former suit cannot again be raised in any future case
between the same parties involving a different cause of action.

- It has the effect of preclusion of issues.

- The parties in both actions may be the same but the causes of action are different.

Bar by former Judgment

1. There is identity of parties, subject matter and causes of action.

2. The first judgment constitutes as an ABSOLUTE BAR TO ALL MATTERS directly adjudge and
those that might have been adjudged.
3. It has the effect of preclusion of claims.

Conclusiveness of Judgment

1. There is ONLY identity of PARTIES AND SUBJECT MATTER.

2. The first judgment is CONCLUSIVE ONLY as to the matters directly adjudged and actually
litigated in the first action. The second action can be prosecuted.
3. It has the effect of preclusion only of issues.

Rule of Stare Decisis

The rule holds that when the Supreme Court has laid down principle of law applicable to a certain state of
facts, it will adhere to that principle and apply to it to all future cases where the facts are substantially the
same. (Hortencia Bino vs. Cuenca, 456 SCRA 300);

Doctrine of Law of the Case

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According to this principle, whatever is once irrevocably established as the controlling legal rule or
decision between the same parties in the case continues to be the law of the case whether correct on
general principles or not, so long as the facts on which such decision was predicated continue to be the
facts of the case before the court. This principle generally finds application in cases where an appellate
court passes on a question and remands the case to the lower court for further proceedings. The question
there settled becomes the law of the case upon subsequent appeal. (RCPI vs. Court of Appeals, G.R. No.
139763, April 26, 2006)

Note: This rule DOES NOT APPLY to resolutions rendered in connection with the case wherein no
rationale has been expounded on the merits of that action (Jarantilla vs. CA, G.R. No. 80194, Mar. 21,
1989)

Immutability of Judgments

Once a judgment attains finality it thereby becomes IMMUTABLE and UNALTERABLE. The decision
of the court must be immutable at some definite period of time, no matter how erroneous a judgment may
be. Otherwise, there would be no end to litigation. (See Rule 36 for Exceptions)

xxx ________________________________________ xxx _________________________________xxx

Rule 39 Section 48: Effect of foreign judgments or final orders

The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to
render the judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the judgment or final
order is conclusive upon the title to the thing; and

(b) In case of a judgment or final order against a person, the judgment or final order is
presumptive evidence of a right as between the parties and their successors in
interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear mistake of law or fact. (50a)

Comment:

Public Policy Principle

A judgment by a court is enforceable only within its territorial jurisdiction.

Effect of foreign judgment

1. In case of judgment against a specific thing, the judgment is conclusive upon the title of the thing;
or

2. In case of a judgment against a person, the judgment is presumptive evidence of a right as

between the parties and their successor in interest by a subsequent title.
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There are two ways of giving effect to a foreign judgment:

(a) An ordinary action to enforce the foreign judgment may be filed in court or;

(b) It may be pleaded in an answer or a motion to dismiss.

Note: In BOTH instances, the judgment may be repelled by evidence of

a. Want of jurisdiction;

b. Want of Notice;

c. Collusion;

d. Fraud;

e. Clear mistake of law or fact.

xxx ________________________________________ xxx _________________________________xxx

PROVISIONAL REMEDIES
RULE 57
Preliminary Attachment

Purpose of Provisional Remedies Provisional remedies are resorted to by litigants for any of the
following reasons:

1. To preserve or protect the rights or interest of litigants while the main action is pending;
2. To secure the judgment;
3. To preserve the status quo; and
4. To preserve the subject matter of the action.

Other Provisional Remedies

A. Issued by a family court

1. Temporary Custody of Minor Children

2. Order allowing Visitation Rights of Parents.

B. Interim Reliefs in a Petition for a Writ of Amparo

1. Temporary Protection Order

2. Inspection Order
3. Production Order
4. Witness Protection Order

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Note: The court justice or judge may grant certain interim reliefs immediately after the filing of the
petition motu proprio or at any time before final judgment. The respondent may also avail of interim
reliefs inspection and production orders. (Riano p. 534-536)

PD 1818 prohibits the issuance of injunctive writ not only against government entities but also against
any person or entity involved in the execution, implementation, and operation of government
infrastructure projects.

Jurisdiction over Provisional Remedies

The court which grants or issues a provisional remedy is the court which has jurisdiction over the
main action.
Inferior courts may also grant all appropriate provisional remedies in an action pending with in
and is within its jurisdiction (Riano, p. 532; Sec. 33 [1] BP 129)

Preliminary Attachment is a provisional remedy issued upon order of the court where an action is
pending, to be levied upon the property of the defendant so that it may be held by the sheriff as security
for the satisfaction of whatever judgment may be rendered in the case (Davao Light and Power, Inc. vs.
CA, 204 SCRA 343)

Requisite for a Preliminary Attachment to Issue

1. The case must be any of those where preliminary attachment is proper (see grounds below);
2. The applicant must file a motion whether ex parte or with notice and hearing;
3. The applicant must show by affidavit that there is no sufficient security for the claim sought to by
enforced and that the amount claimed in the action is as much as the sum of which the order is
granted above all counterclaims; and
4. The applicant must post a bond executed to the adverse party;

Being provisional in character, attachment depends for its existence and effectivity upon the
pendency of a principal action in court.
Attachment places the property under the custody of the court (in custodial legis). It is in nature
of proceeding quasi in rem (Banco-Espanol Filipino vs. Palanca, 37 Phil. 921) although
sometimes referred to as an action in rem (Valdemieso vs. Damalerio, 451 SCRA 638 Feb. 17,
2005)
Whether in rem or quasi in rem, the legal effects are identical because both cases, jurisdiction
over the person of the defendant is NOT required as long as the court acquires jurisdiction over
the res Biaco vs. Countryside Rural Bank, 515 SCRA 106; Villareal vs. CA, 295 SCRA 511)
It does not affect the decision on the merits; the right to recover judgment on the alleged
indebtedness and the right to attach the property of the debtor are entirely separate and distinct,
and the judgment in the main action neither changes the nature nor determines the validity of the
attachment.
Attachment is purely a statutory remedy thus, it cannot exist without a statute granting it. (US vs.
Namit, 38 Phil. 926)

Purpose of preliminary attachment:

466
 1. Seize the property of the debtor before final judgment and put the same in custodia legis even
while the action is pending for the satisfaction of a later judgment (Insular Bank of Asia and
America vs. CA, 190 SCRA 629); or
2. To enable the court to acquire jurisdiction over the res or the property subject of the action in
cases where service in person or any service to acquire jurisdiction over the defendant cannot be
effected (Philippine Commercial International vs. Alejandro, 533 SCRA 738)

Kinds of attachment

1. Preliminary Attachment is one issued at the commencement of the action or at anytime before
entry of the judgment as security for the satisfaction of any judgment that may be recovered in the
cases provided for by the rules.
2. Garnishment is a kind of attachment in which the plaintiff seeks to subject either the property of
the defendant in the hands of a third person called garnishee, to his claim or the money which
said third person owes the defendant (Rizal Commercial Corp. vs. Castro, 168 SCRA 49)
3. Levy of Execution is the writ issued by the court after judgment by which the property of the
judgment obligor is taken into the custody of the court before the sale of the property on
execution for the satisfaction of a final judgment.

Rule 57 Section1: 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

467
 (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)

Dean Jara Notes:

We continue with preliminary attachment. The instances enumerated in Rule 57 Section 1 is an

exclusive enumeration of cases where the court could properly issue a writ of preliminary attachment.
So any action which falls outside of the coverage of Section 1 will not justify the issuance of this writ.

For instance, if a borrower obtains a loan from a bank and later on the borrower becomes
addicted to gambling, and he loses tons of money and he defaults in the payment of his loan. If the bank
files a complaint for the recovery of the loan, the bank cannot ask for the issuance of a writ of
preliminary attachment simply because the borrower has started to gamble. That is not one of the
instances mentioned in Rule 57. So even if the bank contends that the gambling by the borrower could
lead to his insolvency, that is not a proper reason for the court to issue a writ of preliminary attachment.

On the other hand, if this borrower borrows money from the bank and mortgages his property.
Later on, he departs from the Philippines with intention to defraud the bank or his other creditors, the
bank could ask for the issuance of a writ of preliminary attachment based on the ground that the
borrower intends to depart from the Philippines with the intention of defrauding his creditors. Cannot
the defendant resist the issuance of the writ on the ground that after all he has offered a collateral as
security for his loan? The fact that there is collateral securing a loan is not a basis to deny an application
for the issuance of a writ of preliminary attachment, as long as the creditor can show to the court that
the security is NOT sufficient to satisfy the obligation. So the enumeration in Section 1 of Rule 57 is
exclusive. Any action which fails outside of its coverage will not justify the issuance by the court of this
provisional remedy.

If the borrower obtains a loan and he gives as security, a fake title to the bank, that could be a
ground for the issuance of a writ of preliminary attachment, because it is obvious that the borrower has
committed fraud in obtaining the loan or in incurring the obligation. The time frame for the issuance of
the writ is quite long- that is at the commencement of the action until judgment is entered. That means
to say that even if a case is already on appeal, this provisional remedy of preliminary attachment could
still be availed of by an applicant.

Motion for the issuance of writ of preliminary attachment may be heard ex parte

In the preliminary attachment, this is one of the exceptional instances where the Rules
authorize the issuance or the granting of a motion although it is heard ex parte by the court. If you will
remember, motions are supposed to be heard. Both sides will be given an opportunity to explain their
respective positions when a motion is heard. This is an exception to the general rule. It is expressly
provided in Rule 57 that this writ may be heard ex parte or upon notice to the adverse party.

What is the justification why the issuance of the writ could be heard ex parte to the detriment
of the adverse party? The justification is that the applicant, the plaintiff contends before the court the

468
he is dealing with a dishonest person. And if this person is given a chance to be heard, he might continue
with his acts of dishonesty and convey all his properties before the court could take his properties under
custodia legi. The enumeration Section 1, that is from letters A to E clearly assumes that the adverse
party is a dishonest person. So in all the instances, in the five instances mentioned in Section 1, there is
always an allegation of fraud committed by the adverse party: the adverse party intends to depart from
the Philippines with the intention to defraud his creditors when the case involves recovery of property
that has been embezzled, that is an act of fraud; when the adverse party conveys his property with the
intention of defrauding his creditors. The last instance however, the last situation, where a preliminary
attachment could be issued does not necessarily involve the commission of fraud, that is when the
defendant is a non resident of the Philippines. The justification for allowing a writ of preliminary
attachment in this situation is to enable the court to acquire jurisdiction over the properties of the
defendant.

If your will recall under Rule 14, when there is a request for extra-territorial service of summons,
the purpose of the applicant is to convert his action in personam into an action in rem or quasi-in rem
through the preliminary attachment of properties belonging to the defendant who is not a resident of
the Philippines and who is not found in the Philippines. So in the last situation again, the commission of
fraud by the adverse party is not essential. It is enough that the applicant shows to the court that the
defendant is not a resident of the Philippines and is not found in the Philippines. The only purpose is to
enable the court to acquire jurisdiction over the subject matter so that the court will have authority to
try and decide the case.

Matters concerning preliminary attachment should be strictly construed

The Supreme Court has ruled that matters concerning preliminary attachment should be strictly
construed. That is, the reason again is that this writ could result to humiliation or embarrassment on the
part of the adverse party. To illustrate, if the creditor files an action against the debtor for the recovery
of an unpaid loan, and in the complaint the creditor alleges that the debtor is about to depart from the
Philippines with the intention of defrauding his creditor, the court could properly grant the writ of
preliminary attachment in a hearing ex parte, that is even without the knowledge of the defendant.
when that writ is issued, the sheriff could start implementing the writ of course as long as there is prior
or simultaneous service of summons. So the adverse party will come to know that his properties are
being attached only at that time summons is served upon him. So if the debtor has bank accounts could
be garnished at the time the summons is served upon the defendant and if a bank account is garnished
it is frozen. So if the debtor in the meantime had issued checks against his bank account which are
already frozen, his checks will necessarily bounce and he will be forced to meet the payees of the check,
he could be sued under the Bouncing Check Law so it could cause embarrassment and humiliation on
the part of the debtor.

Comment:

The proper party may have the property of the adverse party attached (1) at the commencement of the
action or (2) at any time before entry of judgment.

Parties entitled to attachment:

1. Plaintiff;
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 2. Any proper party.

The term plaintiff or any other plaintiff in whose favor an attachment is granted under the rule,
includes also the defendant whenever he asserts a counterclaim against the plaintiff, whether or not such
counterclaim arises out of the same transaction which is the subject matter of plaintiffs original claim. It
also includes defendant in interpleader when he assert a counterclaim against the plaintiff; in this case, he
may attach the funds in dispute.

Grounds for the Issuance of a Writ of Attachment

1. In actions for recovery of specified sum of money or damages, except moral and exemplary, on a
cause of action arising from law, contract, quasi contract, delict or quasi delict against a party
about to depart from the Philippines with intent to defraud his creditors;
2. In actions for money or property embezzled or fraudulently misapplied or converted to his own
use by a public officer, or an officer of a corp. or an attorney, factor, broker, agent or clerk, in the
course of his employment as such, or by any person in a fiduciary capacity, or for a willful
violation of duty;
3. In actions to recover the possession of property unjustly or fraudulently taken, detained or
converted when the property or part thereof, has been concealed or disposed of to prevent its
being found by the application or any authorized person;
4. In actions against a person guilty of fraud in contracting the debt (dolo causente) or incurring or
performing an obligation upon which the action is based (dolo incidente).

Dolo Causente fraud used to induce another to enter into a contract (Art. 1338, Civil Code of the
Philippines)
Dolo Incidente fraud employed by a party in the fulfillment of his obligation or after the
obligation has been contracted; this only obliges the person employing it to pay damages (Art.
1344, Civil Code of the Philippines)

5. In actions against a party who has removed or disposed of his property, or is about to do so, with
intent to defraud his creditors;
6. In actions against non-resident not found in the Philippines, or on whom summons is served by
publication.

Here, the attachment is intended to enable the court to acquire jurisdiction over the res by
converting the action in personam to an action quasi in rem, and thus, justifying summons by
publication and other modes of summons under Sec. 15 of Rule 14.

Note: The foregoing enumeration is EXCLUSIVE. Except for no. 6 all the grounds contemplate the
commission of fraud by the person against whom it is issued.

Preliminary attachment on Appeal

Even if a case is already on appeal, preliminary attachment could still be availed of by an applicant.

Note: Matters concerning preliminary attachment should be strictly construed.

Read PNOC vs. Santos deemed modified Rule 57.

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Distinction Preliminary Attachment (Rule 57) and Final Attachment (Rule 39)

Preliminary Attachment

1. It is an auxiliary remedy to give security for a judgment still to be rendered;

2. There is no sale because a decision has not yet been rendered;
3. Resorted to at the commencement of the action or at any time before entry of judgment, for the
temporary seizure of property of the adverse party;
4. The proceeds of the sale are in custodia legis;
5. Intervention is a remedy to a stranger whose property has been attached.

Final Attachment

1. It is a means for the execution of a final judgment;

2. It should always be accompanied by a sale at public auction;
3. Available after the judgment in the main action had become executory, and for the satisfaction of
said judgment;
4. The proceeds of the sale are turned over to the attaching creditor;
5. Intervention is NOT available as remedy because there is an assumption of final judgment in Rule
39.

Proceeding in attachment is in rem where the defendant does not appear, and in personam where he
appears in the action (Regalado F., Compendium)

Three (3) Stages in the grant of Preliminary Attachment

1. The court issues the order granting the application;

2. The writ of attachment issues pursuant to the order granting the writ;
3. The writ is implemented;

Note: For the initial two stages, it is NOT necessary that jurisdiction over the person of the defendant be
first obtained.

HOWEVER, once the implementation of the writ commences, the court must have acquired jurisdiction
over the defendant for without such jurisdiction, the court has no power or authority to act in any manner
against the defendant (Mangila vs. CA, G.R. No. 125027, Aug. 12, 2002)

When to apply for preliminary attachment

1. At the commencement of the action; or

2. At any time before entry of judgment.

Methods to procure attachment:

a. Writ may be prayed for in the complaint itself providing that allegations warranting its issuance
are made therein.
b. May be issued pursuant to a separate motion for attachment whenever the writ is NOT prayed
for in the original complaint.
471
 It is not only the plaintiff who may apply for the issuance of a writ of preliminary attachment.
The pertinent provisions of Sec. 1 Rule 57 provide that a plaintiff or any proper party. . .
(Riano)

Rule 57 Section 2 Issuance and contents of order

An order of attachment may be issued either ex parte or upon motion with notice and hearing by the
court in which the action is pending, or by the Court of Appeals or the Supreme Court, and must require
the sheriff of the court to attach so much of the property in the Philippines of the party against whom it
is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such
party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the
order, which may be the amount sufficient to satisfy the applicant's demand or the value of the property
to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same
time to the sheriffs of the courts of different judicial regions. (2a)

Comment:

Issued either ex parte or upon motion with notice and hearing by the court in which the action is pending.

It may be heard ex parte (an exception to the general rule that motions are supposed to be heard).
Reason for ex parte hearing: If the plaintiff contends before the court that he is dealing with a
dishonest person and if this person is given a chance to be heard, he might continue with his acts
of dishonesty and convey all his properties before the court could take his properties under
custodia legis.
However, when issued ex parte, the writ cannot be enforced and may not be validly implemented
unless preceded by a service of summons upon the defendant, or simultaneously accompanied by
service of summons, a copy of the complaint, the application for attachment, the order of
attachment and the attachment bond (Davao Light and Power Co. Inc. vs. CA,204 SCRA 343)

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 3: Affidavit and bond required

An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of
some other person who personally knows the facts, that a sufficient cause of action exists, that the case
is one of those mentioned in Section 1 hereof, that there is no other sufficient security for the claim
sought to be enforced by the action, and that the amount due to the applicant, or the value of the
property the possession of which he is entitled to recover, is as much as the sum for which the order is
granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding
section, must be duly filed with the court before the order issues. (3a)

VBJ Notes:

Fact that applicant wins the case does not necessarily mean that issuance of the writ was proper; Rule
57 Section3; Affidavit and bond required

472
 Supposing the applicant eventually prevails, he wins the case, can the defendant still ask the
court to render to give an award in his favor, on the ground that the issuance of the writ of preliminary
attachment was improper or irregular? Well the answer is YES. The fact that the applicant wins the case
does not mean to say that the issuance of the writ of preliminary attachment was proper all along. It is
possible for the creditor to win the case but he has maliciously applied for the issuance of the writ of
preliminary attachment. And then you have to go back to section 3 that is the contents of the
application for preliminary attachment.

The first requisite is that the applicant must tell the court that he has a cause of action. If he
wins the case we can assume that he has a cause of action. It is the second essential which might prove
to be the undoing of the applicant, because the second essential is that the applicant must manifest to
the court that his case falls under Section 1 of Rule 57. It is possible that the applicant has a cause of
action but that his case does not fall under any of the instances mentioned in Rule 57. So in preliminary
attachment the fact that the applicant wins his case does not mean to say that he cannot be held liable
for the wrongful issuance of a writ of preliminary attachment.

Comment:

The affidavit and bond required must be duly filed with the court before the order issues.

Note: The affidavit must contain all the allegations required, failure to do so renders the writ totally
defective as the judge issuing it acts in excess of jurisdiction.

Contents of the affidavit

1. A sufficient cause of action exists;

2. Case is one of those mentioned in Sec. 1;
3. No other sufficient security for the claim sought to be enforced by action;
4. Amount due to the applicant or possession of which is entitled to recover is as much as the sum
for which the order is granted above all legal counterclaims.

Rule 57 Section 4: Condition of applicant's bond

The party applying for the order must thereafter give a bond executed to the adverse party in the
amount fixed by the court in its order granting the issuance of the writ, conditioned that the latter will
pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by
reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto.
(4a)

Comment:

Bond posted by the attaching creditor answers for the damages and costs which may be adjudged to the
adverse party arising from and by reason of the attachment.

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 5: Manner of attaching property

473
The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await
judgment and execution in the action, only so much of the property in the Philippines of the party
against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the
applicant's demand, unless the former makes a deposit with the court from which the writ is issued, or
gives a counter-bond executed to the applicant, in an amount equal to the bond fixed by the court in the
order of attachment or to the value of the property to be attached, exclusive of costs. No levy on
attachment pursuant to the writ issued under Section 2 hereof shall be enforced unless it is preceded, or
contemporaneously accompanied, by service of summons, together with a copy of the complaint, the
application for attachment, the applicant's affidavit and bond, and the order and writ of attachment, on
the defendant within the Philippines.

The requirement of prior or contemporaneous service of summons shall not apply where the summons
could not be served personally or by substituted service despite diligent efforts, or the defendant is a
resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the
Philippines, or the action is one in rem or quasi in rem. (5a)

Dean Jara Notes:

The rules require that even if the motion is heard ex parte and the filing of the bond is also ex
parte, the implementation of the writ of preliminary attachment could be accompanied or preceded by
a service of summons. The reason why there is the present rule on prior or simultaneous service of
summons when it comes to preliminary attachment or a writ of replevin is that we have to face a
procedural question involving jurisdiction, unless there is simultaneous or prior service of summons.

If the application of preliminary attachment is hear ex parte, usually the adverse party has not
yet been served with summons. In other words, the court has not acquired jurisdiction over the person
of the defendant and the procedural principle has always been this any order of the court issued while
the court has not acquired jurisdiction over the person of the defendant is null and void.

For the validity of an order of a court, the court must have already acquired jurisdiction over the
person of the defendant. In Rule 57 again, this application could be heard ex parte, that is before the
defendant is served with summons. So if the court issues an order directing the issuance of a writ, if we
apply solely that procedural principle, the order is null and void because the court does not acquire
jurisdiction over the person of the defendant. In order to remedy this situation, Rule 57 requires that a
simultaneous service of summon so that when the writ is implemented or carried out, when properties
of the defendant are subjected to preliminary attachment, the court has already acquired jurisdiction
over the person of the defendant through the service of summons.

But you will also notice that the Rule accepts certain cases exceptional instances when the
summons could be served even after the implementation of the writ of preliminary attachment. That is,
if the adverse party could not be served with summons by personal service or by substitute service
despite diligent efforts by the sheriff. So the rule is that, at the time the writ of preliminary attachment
is implemented the court must have already acquired jurisdiction over the person of the defendant. At
the time of the hearing of the motion, at the time of the issuance of the order directing the issuance of
the writ, or even at time of the issuance of the writ itself, there is no need for the court to have acquired
jurisdiction over the person of the defendant.

474
 The rule also requires that there must be a verified application. It could be embodied in the
complain itself, in the pleading itself or it could be contained in a separate application, and the contents
of the application are spelled out in Section 3. So you should know the contents of an application for the
issuance of a writ of preliminary attachment: there is a cause of action, the case falls under Section 1 of
Rule 57 there is no other sufficient security; and the claim sought to be enforced or the value of the
property sought to be recovered is above all legal counterclaims; and there must be the manifestation
by the applicant of his willingness and ability to post an attachment bond. The court cannot issue a writ
of preliminary attachment unless the applicant posts an attachment bond and the amount of the bond is
fixed by the court.

Remedies available to the adverse party in order to lift or set aside the writ

In order to avoid embarrassment or humiliation after his properties have been subjected to
preliminary attachment, the law gives to the adverse party several remedies in order to lift or set aside
the writ of preliminary attachment even after it has already been carried out. The first remedy given to
the adverse party is to file a counter-bond. If the adverse party files a counter-bond, the writ of
preliminary attachment is automatically set aside. The court cannot refuse to set aside a writ of
preliminary attachment if the adverse party is able to post a counter bond. This is the principal
distinction between preliminary attachment and preliminary injunction when it comes to the effect of
the posting of a counter bond. In preliminary attachment, once a counter bond is filed by the adverse
party, the preliminary attachment is immediately lifted. In preliminary injunction, the adverse party is
given the same remedy. He can post a counter bond for the purpose of lifting a preliminary injunction
but the court is given discretion to decide whether or not to lift the writ of preliminary injunction. So in
preliminary injunction the mere posting a counter bond is not a guarantee that the preliminary
injunction is going to be lifted. The court still retains discretion whether or not to lift a preliminary
injunction notwithstanding the filing by the adverse party of a counter bond.

Another remedy given to the adverse party whose properties have been attached is to file a
motion for the quashing or the setting aside of the writ on the ground that it has been improperly or
irregularly or improvidently issued by the court. But you should note that the motion to lift or set aside a
writ of preliminary attachment cannot be heard ex parte, unlike the application for the issuance of the
writ. A motion filed by the adverse party asking the court to lift or set aside the preliminary attachment
by reason of irregular issuance, improvident or improper issuance must always be heard by the court
with notice to the applicant. It cannot be heard ex parte. In other words, we are going to apply the
general rule on motions when it comes to the hearing of a motion for the setting aside of a writ of
preliminary attachment.

Attachment under Rule 39 vs. Preliminary Attachment

Rule 39 also speaks about attachment. But as we said earlier, the attachment mentioned in Rule
39 is a final attachment. There is a levy on execution, while the provisional remedy refers to a
preliminary attachment. There is not much difference between the manner by which a final attachment
and a preliminary attachment are carried out. So the sheriff will attach a real property by simply asking
the Register of Deeds to annotate the fact of attachment on the title of the property attached. When it
comes to personal property capable of manual delivery, the sheriff will take over the possession and

475
custody of this personal property. When it comes to properties of the adverse party in the hands of a
third person, the remedy is to issue a writ of garnishment.

The significant difference between the consequences of a final preliminary attachment is that in
preliminary attachment there is NO sale of the property attached at public auction, and it is easy to
understand why the attachment will end with the taking over of the personal property or of the
annotation of the fact of attachment. In preliminary attachment, there is NO FINAL JUDGMENT
rendered by the court. The preliminary attachment is just an auxiliary remedy in order to give to the
applicant a security for a judgment that could be rendered by the court in his favor. So upon the
attachment of the properties, the properties will be in custodia legis until the case is finally terminated.
There is going to be no sale of the property, that is generally. But if the property attached easily
deteriorate, by way of exception, there could be a sale of these properties. But the proceeds of the sale
in preliminary attachment will be kept by the court, it will still be in custodia legis unlike in final
attachment under Rule 39.

In Rule 39 if there is a levy of properties belonging to the judgment debtor, the court will not
end simply with a levy on the properties. After the properties of the judgment debtor are levied upon,
the court is mandated to sell the properties at public auction so that the money could be generated with
which to pay the award in favor of the judgment creditor. So in Rule 39, the attachment is predicated on
the assumption that there is already a final and executory judgment, but in Rule 57, there is no such
assumption. There is no judgment rendered by the court, so the properties attached will remain to be
under the custody of the court until the cases is finally terminated.

In Rule 57 also, the probable share of the adverse party in an estate proceeding could be the
subject of attachment. But we learned that when there is settlement proceeding pending before the
court, either in intestate or testate proceedings, the properties of the estate are under the control of the
settlement court or the probate court. These properties are therefore in custodia legis.

Can properties under custodia legis be the subject of preliminary attachment?

If we allow an attachment of the probable share of the adverse party to a certain settlement
proceeding, are we not going to disrupt the proceedings being undertaken by the settlement court? In
other words, do we allow properties under custodia legis to be the subject of preliminary attachment?
The answer is YES. Rule 57 expressly allows that a preliminary attachment could be enforced over
probable share of the adverse party in a settlement proceedings. Will it not disrupt the settlement
proceeding? It will NOT because the court that issued the preliminary attachment will not take over the
control of these properties. The properties will still be in the hands of the executor or the administrator.

Is there a guarantee that the writ of preliminary attachment will be satisfied upon the termination of
the settlement proceedings?

There is NO guarantee. If it turns out in the settlement proceedings that the liabilities of the
estate are more that the assets, in other words, the estate is an insolvent estate, then the writ of
preliminary attachment served upon the executor or administrator will become academic. There is
nothing that will be given to the adverse party as his share in the settlement proceeding.

476
Several attachment over the same property

If a property is NOT subject of a settlement proceeding, but it is already the subject of a first writ
of preliminary attachment, could there be a second attachment over the same property? Could there be
a third attachment over the same property? Well the answer is YES. There could be several attachments
issued by different courts over the same property. So over a piece of land there could be a first
attachment, a second attachment, there could be a third attachment. If a property is in custodia legis, it
does not immunize that property from subsequent reach of preliminary attachment. The reason is
because a preliminary attachment only creates a lien over the property that has been attached and that
lien is NOT a certainty because the court will still have to try the case. The court will still have to decide
the case. If the court later on decides the case against the applicant, that means to say that the lien will
also be set aside.

If the property is already the subject of a mortgage, could it be the subject later of a subsequent
preliminary attachment?

The answer is also YES. There is NO limitation as the number of liens that could be imposed on
the property on the same property, whether the lien is voluntary or involuntary. And if there are several
attachments over the same property, we just recognize or apply the principle of seniority of liens. A first
preliminary attachment will be superior to a second and third preliminary attachment.

Comment:

Note: Levy shall not be made unless preceded or contemporaneously accompanied by:

1. Service of Summons;
2. A copy of the complaint;
3. Application for attachment;
4. Affidavit and bond of the applicant; and
5. Order and writ of attachment.

But prior or contemporaneous service of summons shall NOT APPLY when:

1. Summons could not be served personally or by substituted service;

2. Defendant is a resident of the Philippines temporarily absent therefrom;
3. Defendant is a non-resident; and
4. The action is one in rem or quasi in rem.

Note: All properties exempt from execution are likewise exempt from attachment (Sec. 2, Rule 57; Sec.
13 Rule 39)

How to Prevent the Attachment

If the attachment has not yet been effected, the party whose property is sought to be attached may prevent
the attachment either:

477
 1. By DEPOSITING with the court from which the writ was issued an amount equal to the value of
the bond fixed by the court in the order of attachment or an amount equal to the value of the
property to be attached, exclusive of costs; or
2. BY GIVING A COUNTERBOND executed to the applicant, in an equal to the bond posted by
the latter to secure the attachment or in an amount equal to the value of the property to be
attached, exclusive of costs (Riano)

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 6: Sheriff's return

After enforcing the writ, the sheriff must likewise without delay make a return thereon to the court from
which the writ issued, with a full statement of his proceedings under the writ and a complete inventory
of the property attached, together with any counter-bond given by the party against whom attachment
is issued, and serve copies thereof on the applicant. (6a)

Comment:

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 7: Attachment of real and personal property; recording thereof

Real and personal property shall be attached by the sheriff executing the writ in the following manner:

(a) Real property, or growing crops thereon, or any interest therein, standing upon the
record of the registry of deeds of the province in the name of the party
against whom attachment is issued, or not appearing at all upon such records,
or belonging to the party against whom attachment is issued and held by any
other person, or standing on the records of the registry of deeds in the name
of any other person, by filing with the registry of deeds a copy of the order,
together with a description of the property attached, and a notice that it is
attached, or that such real property and any interest therein held by or
standing in the name of such other person are attached, and by leaving a copy
of such order, description, and notice with the occupant of the property, if
any, or with such other person or his agent if found within the province.
Where the property has been brought under the operation of either the Land
Registration Act or the Property Registration Decree, the notice shall contain a
reference to the number of the certificate of title, the volume and page in the
registration book where the certificate is registered, and the registered owner
or owners thereof.

The registrar of deeds must index attachments filed under this section
in the names of the applicant, the adverse party, or the person by whom the
property is held or in whose name it stands in the records. If the attachment is
not claimed on the entire area of the land covered by the certificate of title, a
description sufficiently accurate for the identification of the land or interest to
be affected shall be included in the registration of such attachment;
478
 (b) Personal property capable of manual delivery, by taking and safely keeping it in his
custody, after issuing the corresponding receipt therefor;

(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company,

by leaving with the president or managing agent thereof, a copy of the writ,
and a notice stating that the stock or interest of the party against whom the
attachment is issued is attached in pursuance of such writ;

(d) Debts and credits, including bank deposits, financial interest, royalties,
commissions and other personal property not capable of manual delivery, by
leaving with the person owing such debts, or having in his possession or under
his control, such credits or other personal property, or with his agent, a copy
of the writ, and notice that the debts owing by him to the party against whom
attachment is issued, and the credits and other personal property in his
possession, or under his control, belonging to said party, are attached in
pursuance of such writ;

(e) The interest of the party against whom attachment is issued in property belonging
to the estate of the decedent, whether as heir, legatee, or devisee, by serving
the executor or administrator or other personal representative of the
decedent with a copy of the writ and notice that said interest is attached. A
copy of said writ of attachment and of said notice shall also be filed in the
office of the clerk of the court in which said estate is being settled and served
upon the heir, legatee or devisee concerned.

If the property sought to be attached in custodia legis, a copy of the writ of attachment shall be filed
with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian
of such property. (7a)

Comment:

What may be the subject of Attachment:

1. Real Property or any interest therein;

2. Personal property capable of manual delivery;
3. Stocks or shares or interest therein;
4. Debts and credits, including bank deposits, financial, interest, royalties, commissions and other
personal property NOT capable of manual delivery; or
5. Interest of the party against whom attachment is issued in property belonging to the estate, of the
decedent, whether as heir, legatee, or devisee.

Par. (3) and (4) refer to garnishment. By such notice of garnishment, the court acquires jurisdiction over
the garnishee and the latter becomes a forced intervenor in the case.

Debt means some definite amount of money, ascertained or capable of being ascertained, which may be
paid over the sheriff or to the court, while credits and personal property are something belonging to the
defendant, but in possession and under the control of the garnishee (Feria, Civil Procedure)
479
 Property legally attached is property in custodia legis and cannot be interfered with without the
permission of the proper court, but this is confined to cases where the property belongs to the
defendant or on in which the defendant has proprietary interest.

Principle of Seniority of Liens

Where the property attached by the judgment creditor had previously been mortgaged the judgment
creditors lien is inferior to that of the mortgagee which must first be satisfied in the event of foreclosure.
In reality, what was attached by the judgment creditor was merely the judgment debtors right or equity of
redemption (Top Rate International Services Inc. vs. IAC, G.R. No. 67496, July 7, 1986)

There could be several attachment issued by different courts over the same property.

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 8: Effect of attachment of debts, credits and all other similar property

All persons having in their possession or under their control any credits or other similar personal
property belonging to the party against whom attachment is issued, or owing any debts to him, at the
time of service upon them of the copy of the writ of attachment and notice as provided in the last
preceding section, shall be liable to the applicant for the amount of such credits, debts or other similar
personal property, until the attachment is discharged, or any judgment recovered by him is satisfied,
unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other
proper officer of the court issuing the attachment. (8a)

Comment:

It is not necessary to serve summons upon the garnishee in order that the trial court may acquire
jurisdiction. All that is necessary is the service upon him of the writ of garnishment (Perla Compania de
Seguros vs. Ramolete, G.R. No. 60884, Nov. 13, 1991)

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 9: Effect of attachment of interest in property belonging to the estate of a decedent

The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a
decedent, shall not impair the powers of the executor, administrator, or other personal representative
of the decedent over such property for the purpose of administration. Such personal representative,
however, shall report the attachment to the court when any petition for distribution is filed, and in the
order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the
property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such
heir, legatee, or devisee, or any person claiming under him. (9a)

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 10: Examination of party whose property is attached and persons indebted to him or
controlling his property; delivery of property to sheriff
480
Any person owing debts to the party whose property is attached or having in his possession or under his
control any credit or other personal property belonging to such party, may be required to attend before
the court in which the action is pending, or before a commissioner appointed by the court, and be
examined on oath respecting the same. The party whose property is attached may also be required to
attend for the purpose of giving information respecting his property, and may be examined on oath. The
court may, after such examination, order personal property capable of manual delivery belonging to
him, in the possession of the person so required to attend before the court, to be delivered to the clerk
of the court or sheriff on such terms as may be just, having reference to any lien thereon or claim
against the same, to await the judgment in the action. (10a)

Comment:

Note: The examination in Rule 39 is proper only when the writ of execution is returned unsatisfied.

Examination under this section is NOT subject to a preliminary condition but is anticipatory in
nature and may be restored to even if the writ of attachment was not returned because no property
could be found to be levied upon thereunder.

If the garnishee does NOT admit the indebtedness or he claims the property, the controversy must be
determined in an independent action (Bucra Corp. vs. Macadaeg, 84 Phil 493)

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 11: When attached property may be sold after levy on attachment and before entry of
judgment

Whenever it shall be made to appear to the court in which the action is pending, upon hearing with
notice to both parties, that the property attached is perishable, or that the interests of all the parties to
the action will be subserved by the sale thereof, the court may order such property to be sold at public
auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide
the judgment in the action. (11a)

Comment:

Sale at public auction after levy on attachment and before entry of judgment may be ordered by the court
in case the property attached is;

(1) Perishable in nature, or that

(2) The interest of all the parties will be subserved.

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 12: Discharge of attachment upon giving counter-bond

After a writ of attachment has been enforced, the party whose property has been attached, or the
person appearing on his behalf, may move for the discharged of the attachment wholly or in part on the
481
security given. The court shall, after due notice and hearing, order the discharge of the attachment if the
movant makes a cash deposit, or files a counter-bond executed to the attaching party with the clerk of
the court where the application is made, in an amount equal to that fixed by the court in the order of
attachment, exclusive of costs. But if the attachment is sought to be discharged with respect to a
particular property, the counter-bond shall be equal to the value of that property as determined by the
court. In either case, the cash deposit or the counter-bond shall secure the payment of any judgment
that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on
the attaching party. Upon the discharge of an attachment in accordance with the provisions of this
section, the property attached, or the proceeds of any sale thereof, shall be delivered to the party
making the deposit or giving the counter-bond, or to the person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the property so released. Should such counter-bond for any
reason be found to be or become insufficient, and the party furnishing the same fail to file an additional
counter-bond, the attaching party may apply for a new order of attachment. (12a)

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 13: Discharge of attachment on other grounds

The party whose property has been ordered attached may file a motion with the court in which the
action is pending, before or after levy or even after the release of the attached property, for an order to
set aside or discharge the attachment on the ground that the same was improperly or irregularly issued
or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited
to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the
attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on
which the attachment was made. After due notice and hearing, the court shall order the setting aside or
the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued
or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not
cured forthwith. (13a)

Comment:

Grounds for discharge of preliminary attachment

1. Debtor has posted a counter bond or has made the requisite cash deposit (Sec. 12)

2. Attachment was improperly or irregularly issued (Sec. 13) as where there is no ground for attachment,
or the affidavit and/or the bond filed therefore are defective or insufficient. (Sec. 3)

3. Judgment is rendered against the attaching creditor (Sec. 19);

4. Attachment is excessive, but the discharge shall be limited to the excess. (Sec. 13)

5. Property attached is exempt from execution.

An ex parte discharge or suspension of the attachment is a decisive to the orderly administration of justice
and nullifies the underlying role and purpose of preliminary attachment in preserving the rights of the
parties pendente lite as an ancillary remedy.
482
xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 14: Proceedings where property claimed by third person

If the property attached is claimed by any person other than the party against whom attachment had
been issued or his agent, and such person makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriff
while the latter has possession of the attached property, and a copy thereof upon the attaching party,
the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his
agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such
value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for
the taking or keeping of the property may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the filing of the bond.

The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-
party claimant, if such bond shall be filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property, or prevent the attaching party from claiming
damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a
separate action.

When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages
as a result of the attachment, he shall be represented by the Solicitor General, and if held liable
therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the
funds to be appropriated for the purpose. (14a)

Dean Jara Notes:

Preliminary attachment is also predicated on the assumption that the properties attached
belong to the adverse party. If a property is attached and it does not belong to the adverse party, the
attachment is null and void, and it can always be set aside. If a property that has been attached belong
to a third person, what remedies does Rule 57 give to the third person? The remedies are similar to
those given in Rule 39, that is when a property that has levied upon does NOT belong to the judgment
debtor but to a stranger. In Rule 39, the stranger whose property has been levied upon can file a
terceria or a third party claim. Even if he does not file a third party claim, he can always file an
independent action for the recovery of his own property. We give the same remedies to a stranger
whose properties are made the subject of a writ of preliminary attachment. He can also file a third party
claim or terceria, and he can also file an independent action for the recovery of his property.

Intervention is a remedy to a stranger whose property has been attached under Rule 57

In a writ of preliminary attachment, if the stranger whose property has been attached does not
resort to the filing of a third party claim, he does not resort to the filing of an independent action for the
recovery of his property can he file a motion for intervention? The answer is yes. He can file a motion
for intervention. In the case of Rule 39, when the property of a stranger is levied upon, can he file a

483
motion for intervention? The answer is NO. So in Rule 39, intervention is not a remedy available to the
third person to the stranger, but in Rule 57, intervention is a proper remedy.

Why we dont allow intervention to be filed by the third person under Rule 39 but we allow a
motion for intervention to be filed by the stranger in Rule 57? Well again it is easy to understand why
intervention is not allowed in 39, but is allowed in 57. Intervention is not allowed in 39 but it is allowed
in 57. Intervention is not allowed in Rule 39 because intervention can be had only before judgment is
rendered by the court. In Rule 39, again our assumption is that there is already a final and executory
judgment. The case is already finished, so intervention is NOT proper. But in Rule 57 we allow that
stranger to intervene because the case has not yet been decided. In fact, the case is still at its early
stage, it would still be at the stage of filing of pleadings, it could be still at the stage of trial, or could still
be at the stage of appeal, that is, judgment is not yet final and executory.

Later after the enforcement of the writ of preliminary attachment, the court should render its
decision. If the court decides in favor of the applicant and the decision becomes executory, what
happens to the preliminary attachment? Well the preliminary attachment will simply be converted to
final attachment. There could now be a sale of the attached property at public auction.

Comment:

Remedy of the third person:

1. File a terceria or third party claim (similar to Sec. 16, Rule 39);

2. File independent action to recover his property; or

3. File a motion for intervention (This is available only before judgment is rendered, hence not allowed
under Rule 39)

Note: A third party claim may be filed with the sheriff while he has possession of the properties levied
upon, this being the only time fixed for the purpose (Mangaoang vs. Provincial Sherif of La Union, G.R.
No. L-4869, May 26, 1952)

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Rule 57 Section 15: Satisfaction of judgment out of property attached; return of officer

If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the
judgment to be satisfied out of the property attached, if it be sufficient for that purpose, in the following
manner:

(a) By paying to the judgment obligee the proceeds of all sales of perishable or other
property sold in pursuance of the order of the court, or so much as shall be
necessary to satisfy the judgment;

484
 (b) If any balance remains due, by selling so much of the property, real or personal, as
may be necessary to satisfy the balance, if enough for that purpose remain in
the sheriff's hands, or in those of the clerk of the court;

(c) By collecting from all persons having in their possession credits belonging to the
judgment obligor, or owing debts to the latter at the time of the attachment
of such credits or debts, the amount of such credits and debts as determined
by the court in the action, and stated in the judgment, and paying the
proceeds of such collection over to the judgment obligee.

The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and
furnish the parties with copies thereof. (15a)

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Rule 57 Section 16: Balance due collected upon an execution; excess delivered to judgment obligor

If after realizing upon all the property attached, including the proceeds of any debts or credits collected,
and applying the proceeds to the satisfaction of the judgment, less the expenses of proceedings upon
the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon
ordinary execution. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand,
must return to the judgment obligor the attached property remaining in his hands, and any proceeds of
the sale of the property attached not applied to the judgment. (16a)

Rule 57 Section 17: Recovery upon the counter-bond

When the judgment has become executory, the surety or sureties on any counter-bond given pursuant
to the provisions of this Rule to secure the payment of the judgment shall become charged on such
counter-bond and bound to pay the judgment obligee upon demand the amount due under the
judgment, which amount may be recovered form such surety or sureties after notice and summary
hearing in the same action. (17a)

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Rule 57 Section 18: Disposition of money deposited

Where the party against whom attachment had been issued has deposited money instead of giving
counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment
rendered in favor of the attaching party, and after satisfying the judgment the balance shall be refunded
to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was
issued, the whole sum deposited must be refunded to him or his assignee. (18a)

Comment:

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Where the writ of execution is returned unsatisfied, the liability of the counter bond automatically
attaches without the need for the plaintiff to file a supplemental pleading to claim payment from the
surety (Vanguard Assurance Corp. vs. CA, G.R. No. L-25291, May 27, 1975)

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 19: Disposition of attached property where judgment is for party against whom
attachment was issued

If judgment be rendered against the attaching party, all the proceeds of sales and money collected or
received by sheriff, under the order of attachment, and all property attached remaining in any such
officer's hands, shall be delivered to the party against whom attachment was issued, and the order of
attachment discharged. (19a)

xxx ________________________________________ xxx _________________________________xxx

Rule 57 Section 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 on 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. (20a)

VBJ Notes:

Claim for damages on account of improper, irregular or excessive attachment

You should read Section 20 of Rule 57 that is the manner by which damages could be claimed
for the wrongful issuance of a writ of preliminary attachment. Section 20 of Rule 57 is the Rule to be
followed in all provisional remedies where there is a claim for damages. In replevin, there is a replevin
bond. In injunction there is an injunction bond. Even in receivership there is a bond. Section 20 of Rule
57 details to us the manner by which damages could be recovered for the wrongful issuance of any kind
of provisional remedy. And the rule is very simple. Any award of damages for the wrongful issuance of a
provisional remedy should be covered in the same case. The recovery of damages cannot be had in a
separate action. Substantially that is what Section 20 Rule 57 provides. And this applies to all provisional
486
remedies where the adverse party seeks recovery of damages for the wrongful issuance of the
provisional remedies. So that in a preliminary attachment, if the adverse party feels or believes that the
issuance by the court of the provisional remedy is wrongful, his usual recourse is to file a counterclaim
for recovery of damages arising from its wrongful issuance of a provisional remedy. If he fails to file a
counterclaim in his answer, he can do so by filing a supplemental answer later on, setting forth his
desire to recover damages for the wrongful issuance of a provisional remedy.

The adverse party will have in mind recovering the damages from the plaintiff himself and from
the bonding company, from surety. If the adverse party fails to seek, to recover in the same case, the
damages that he has suffered as a result of the wrongful issuance of a provisional remedy, he is barred
he is precluded from filing an independent action for the sole purpose of recovering damages.

To illustrate: The plaintiff files a complaint against the defendant, lets say the debtor, for the
recovery of the loan. The plaintiff submits a verified application for the issuance of preliminary
attachment. Of course he embodies in this application an affidavit containing matters required in
Section 3. But it turns during the trial that the filing of the application is without basis, malicious, just
intended to embarrass, to humiliate the adverse party. The court, let us say dismisses the complaint but
the defendant, the adverse party fails to seek from the same court the damages that he has suffered as
a result of the wrongful issuance of preliminary attachment. The judgment is now entered. Later on, the
defendant files his own complaint for the recovery of damages arising from the wrongful issuance of
preliminary attachment. The plaintiff who is now the defendant in the second case files a motion to
dismiss based on res judicata. But the adverse party in the second case, that is the plaintiff in the second
case tells the court; The cause of action in the first case is a recovery of a loan filed against me, but in
my complaint I am seeking the recovery of damages which I have suffered as a result of the wrongful
issuance of preliminary attachment. Clearly the causes of action in these two cases are not identical. So
the plaintiff in the second case will tell the court: Even if we read Section 47 of Rule 39, when the
judgment is in personam it is conclusive only upon the matters directly adjudged by the court. The
matter directly adjudged by the court in the first case is the loan which I allegedly obtained from the
creditor. The subject matter of my complaint is the recovery of damages which I suffered as a result of
wrongful issuance. Is that a correct argument? That is NOT OF COURSE a correct argument, because in
Rule 39, Section 47, what is barred, what cannot be litigated a new by the parties are matters directly
adjudged by the court, or matters that could have been adjudged in relation to the case. The recovery of
damages falls under that qualification a matter that could have been raised in relation to the case.
And Rule 57 expressly directs that this matter of recovery of damages must be obtained in the first case
where the writ of preliminary attachment was issued.

So if there is an independent action for the recovery of damages arising from the wrongful
issuance of a writ of preliminary attachment. The ground for dismissal is not Section 20 Rule 57, the
ground for dismissal should be res judicata bar by prior judgment. The recovery of damages is a matter
that could have been ruled upon by the court in relation to the subject matter of the first case.

Supposing that the defendant in the first case files independent action for recovery of damages,
but the creditor who is now a defendant in the second case fails to ask for the dismissal of the second
case, for the recovery of damages; can the court motu proprio, on its own order the dismissal of the
second case? Well the answer is YES. You have to relate this to Rule 9, because in Rule 9, res judicata is
one of the four non-waivable defenses. So even without motion a motion coming from the applicant in

487
the issuance of a writ of preliminary attachment, if there is an independent case file by the adverse
party, for the recovery of damages, the court on its own can dismiss this independent action by reason
of res judicata. Under Rule 9, the court is empowered to dismiss any complaint if founded on res
judicata.

Preliminary Attachment vs. Replevin

We should make a comparison between preliminary attachment and replevin, because there
seems to be an overlap between a writ of preliminary attachment and a writ of replevin.

Replevin is likewise a provisional remedy, but it is loosely used by lawyers also as a principal
action. So it is not unusual for a lawyer to file a complaint for replevin. Replevin in this context is bid as a
principal action, but in that complaint for replevin, there is an application for the issuance of a
provisional remedy of replevin, although the term used in a complaint for replevin asking for a
provisional remedy is for the issuance of a warrant of seizure. The warrant of seizure of is another term
therefore for a writ of replevin as a provisional remedy. And in replevin the principal action is always for
the recovery of personal property capable of manual delivery unlike in preliminary attachment. In
preliminary attachment, the action could be for the recovery of personal property, it could be for the
recovery of real property. It could be for the recovery of money, as long as the case falls under any one
of the instances mentioned in section 1 of 57. But in replevin, the principal action must always be for the
recovery of personal property capable of manual delivery.

Accion reinvindicatoria, a case for the recovery of title of ownership over a piece of land could
not be a principal action where the applicant seek the provisional remedy of replevin. The personal
property involved in replevin must be one capable of manual delivery, and the purpose is always to
recover that same property. So if the plaintiff files a complaint for the recovery of the car, which is of
course a personal property capable of manual delivery, the applicant/plaintiff could ask the court to
issue a writ of replevin or a warrant of seizure as a provisional remedy. So what is going to happen? The
complaint is filed today for the recovery of the car. Can the applicant today ask the court to issue a writ
of replevin, so that the sheriff will confiscate the car? The answer is YES, in fact, Rule 60 is very clear. A
writ of replevin could be issued only by the court before the defendant answers. It is unlike preliminary
attachment wherein the period within which to obtain the remedy is quite long from the
commencement of the action until the entry of judgment. In replevin, the period is very short, it is upon
the commencement of the action/filing of the complaint and before the defendant answers.

The very short period emphasizes that a writ of replevin just like preliminary attachment is issue
ex parte, that is, without the defendant being notified about the existence of the application. Of course
there is also an application, and in Rule 60, the application must contain certain items that the applicant
is entitled to the ownership or at least he is entitled to the possession of the personal property; that the
personal property is unjustly detained by the defendant; and that the plaintiff is ready and able to post a
replevin bond double the value of the personal property. So in replevin, the replevin bond is always
double the value of the property. Unlike again in preliminary attachment, the bond is fixed by the court;
in replevin, the court has no participation at all in the fixing of the bond. It is the rule itself that fixes the
amount of the bond. It is always double the value of the personal property. So the applicant is mandated
to state to the court the value of the personal property according to his opinion. If the car according to

488
the opinion of the applicant is P500, 000 he must file a replevin bond of P1,000, 000. It cannot be
increased, it cannot be reduced by the court, it is always double the value of the property.

Upon the issuance of the writ, the sheriff must also comply with the Rule 57 on prior or
simultaneous service of summons, so that the adverse party cannot assail the validity and enforcement
of the writ of replevin. If the summons is served together with the confiscation of the car, then the court
has already acquired jurisdiction over the person of the adverse party.

After confiscation by the sheriff of the car, will the sheriff turnover the car to the applicant? The
answer is NO. The procedure which should be followed by the court is also expressly enumerated in
Rule 60. After the sheriff has confiscated the car he must keep the car in his custody for five days. He
cannot turn over the car directly to the applicant. He must keep in custody for five (5) days the car.
Within five day period, the adverse party can recover the car if he files a counter bond. So if within the
five day period the adverse party files a counter bond also double the value of the property, the sheriff
will return the car to him. But if the adverse party fails to file a counter bond within the five day period,
then the sheriff will give the car to the applicant. So while the case is pending, that is after five day
period has expired , the car will be in the possession and control of the applicant.

Since the purpose of the applicant in filing the complaint is to recover the car, and the sheriff
has already delivered the car to him, can the applicant now avail of the remedy given in Rule 17? If you
recall, Rule 17 gives to the plaintiff the privilege of dropping his complaint before the defendant
answers. Since the applicant is already in possession of the car, he will be tempted to file a notice to
drop or to dismiss his complaint, and after the dismissal of his complaint he remains to be in possession
of the car. Is that a good idea? That is not a good idea. If the applicant in replevin is given the possession
of the car by virtue of a warrant of seizure as a provisional remedy, he must continue to prosecute the
case until it is finally decided by the court. If after delivery of the car to the applicant, and the applicant
moves for the dismissal of the case the sheriff will get from the applicant the car, and deliver it back to
the adverse party. The reason is very simple. The possession by the applicant of the car is by virtue of a
writ of replevin, a provisional remedy. So his possession is not permanent in character, it is only
temporary while the case is being heard. Since the case is already dismissed , then there is no more
reason for the court to continue enforcing the writ of replevin as a provisional remedy. That is always
the nature of a provisional remedy. It needs a principal action to depend on. Once that principal action is
dismissed there is no more reason for the provisional remedy to exists.

In the application for a writ of replevin, the applicant must state that the property is not under
custodia legis. So if the car is the subject of preliminary attachment, the preliminary attachment will
immunize the car from the enforcement of a writ of replevin. Supposing the car is seized by virtue of a
writ of replevin, could it be confiscated by virtue of another writ of replevin? The answer is YES. In Rule
60, what is precluded in so far as seizure of personal property is concerned is when the property is the
subject of an attachment or levy. When the personal property is the subject of a writ of replevin, it could
also be confiscated by another writ of replevin, that is another person will file his own complaint for the
recovery of the personal property and get from the court another writ of replevin, following still the
essentials mentioned in Rule 60; he will file an application saying that he is entitled to possession; that it
is not the subject of a levy or an attachment; and that he is willing and able to post a replevin bond
double the value of the property.

489
 Just like in preliminary attachment, the filing of a counter bond within five day period will
automatically lift the writ of replevin issued by the court. Can we not have a remedy for the immediately
recovery of real property similar to a writ of replevin, given our concept of replevin as only pertaining to
personal property capable of manual delivery? Supposing the case involves real property but the
applicant desires to have immediate possession of the real property. Definitely, a writ of replevin is out
of the question. Is there a provisional remedy available to him? The answer is YES. When the case
involves recovery of real property, writ of replevin is not proper. The proper provisional remedy is to ask
for the issuance of a writ of preliminary mandatory injunction which brings us not to the concept of
injunction.

So again for the recovery of personal property, the provisional remedy for the immediate
delivery is for the applicant to ask for a warrant of seizure or a writ of replevin. For the immediate
recovery of real property, as when there is an accion publiciana, or accion reinvindicatoria, or forcible
entry or unlawful detainer, replevin is not a proper remedy because remedy under the Rules is limited to
complaints for the recovery of personal property. The equivalent provisional remedy for the immediate
possession of real property is the issuance of a writ of preliminary mandatory injunction, which is
recognized even by the Civil Code. For a person to immediately recover possession of real property,
there could be a writ of preliminary mandatory injunction.

Contrasted with the preliminary attachment and also replevin, injunction cannot be issued ex
parte. There must always be a hearing, whether the provisional remedy is a temporary restraining order
or a writ of preliminary injunction, there must always be a hearing. The rules are now very clear. There
must always be a hearing when it comes to the issuance of a writ of preliminary injunction. And just like
replevin or preliminary attachment, the adverse party has a remedy of putting a counter bond. But
unlike preliminary attachment and replevin, the posting of the adverse party of a counter bond in
preliminary injunction is NOT A guarantee that the court will lift the preliminary injunction it is
discretionary upon the court.

One instance where preliminary injunction is availed of is when a petition under Rule 65 is filed,
that is certiorari, prohibition and mandamus. The filing of a petition for certiorari or prohibition under
Rule 65 will not stop the trial court from going ahead with the case. In order to stop the trial court from
proceeding with the trial of a case if there is a petition for prohibition or certiorari filed against that
court is for the petitioner to ask for the issuance of a preliminary injunction. This is expressly provided in
Rule 65. So if you go over Rule 65, the mere filing of a petition under Rule 65 will not stop the trial court
from proceeding with the case being handled by it. It will result to the stoppage of the proceeding only
in that petition for certiorari is accompanied by an application for preliminary injunction and the court
issues this injunctive relief.

Another instance where preliminary injunction is usually availed of is a petition under Rule 38,
that is relief from judgment. A petition for relief from judgment by itself will not stop the court from
enforcing the final and executory judgment. In order to stop the enforcement of a final and executory
judgment, the applicant should file a petition for relief under Rule 38 and at the same time ask the court
to issue a writ of preliminary injunction.

Just like another provisional remedies, this is available before all courts inferior court, a Regional
Trial Court, the Court of Appeals and the Supreme Court. And what is noticeable when it comes to

490
preliminary injunction issued by the Court of Appeals or by the Supreme Court is that it could be issued
by any member of the Court of Appeals or of the Supreme Court. In the case of preliminary attachment,
it could also be issued by the Supreme Court or the Court of Appeals, but 57 does not say whether it
should be issued by the court in division. But in the case of preliminary injunction, it is clearly provided
that it could be issued by any member of the Court of Appeals or of the Supreme Court. But the internal
rules of Court of Appeals it seems, says that while any member of the Court of Appeals could issue a writ
of preliminary injunction by himself alone, without consulting the other members of the division, when
a motion for the filing or setting aside of the preliminary injunction, or when a motion for
reconsideration is filed by the adverse party, the internal rules of the Court of Appeals require that this
motion for the lifting must be heard by the division. So the sole member of the court of Appeals who has
ordered the issuance of a writ of preliminary injunction cannot by himself alone decide whether or not
the preliminary injunction will be lifted or set aside, because if we give him that privilege, he will deny
the motion. So in order to remedy this anomaly, the internal rules of the Court of Appeals require that
when there is a motion filed to lift or set aside the preliminary injunction the member who caused the
issuance of the writ must consult the other members of his division. And you know very well in the Court
of Appeals, there is always three members of a division. So when it comes to the issuance, one member
could decide, but when it comes to the lifting all the members should be consulted.

Comment:

When must application for damages be filed: Before the trial or before appeal is perfected, or before
the judgment becomes executory.

It shall be awarded after hearing and included in the judgment.

If the judgment of the appellate court be favorable to the party against whom the attachment was issued,
he must claim damages during the pendency of the appeal.

Procedure for claiming damages outlined in Sec. 20 is EXCLUSIVE. Hence, such claims for damages
cannot be the subject of an independent action.

Exception:

1. Where the principal case was dismissed for lack of jurisdiction by the trial court without giving an
opportunity to the party whose property was attached to apply for and prove his claim; and

2. Where the damages by reason of the attachment was sustained by a third person who was not a party to
the action wherein such writ was issued.

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.

xxx ________________________________________ xxx _________________________________xxx

RULE 58
491
 Preliminary Injunction

VBJ Notes:

We continue with Preliminary Injunction and you should read in relation to Rule 58, Preliminary
Injunction, Articles 539 and 1674 of the Civil Code. These articles provide clearly for the instances where
a court can issue both kinds of injunction either a prohibitory injunction or mandatory injunction.

In forcible entry cases for instance, the plaintiff could rightfully ask for the issuance of a writ of
preliminary mandatory injunction, THE SAME to be issued by the inferior court which has exclusive
original jurisdiction over cases involving forcible entry and unlawful detainer.

You should also read, in relation to Rule 58, Rule 135 of the Rules of Court. Rule 135, Section 6.
In numerous instances, when there is an application for the issuance of a temporary restraining order,
which under Rule 58 cannot be issued by the court ex parte as a general rule, the issuance of a
temporary restraining order cannot be issued ex parte as a general rule, there must be a summary
hearing. It is only in exceptional instances where a court can issue ex parte, a temporary restraining
order. Under these provisions, trial courts have intended a remedy which is distinct from a temporary
restraining order. Trial courts call this a cease and desist order. And trial courts usually issue a cease and
desist order ex parte, that is, preparatory to the summary hearing on the application for the issuance of
a temporary restraining order.

The basis cited by the courts in issuing a cease and desist order is Rule 135, Section 6. The
provision of 135 Section 6 are really very broad. It enables a court to issue any process or writ that will
help the court in resolving the matters laid down before it. And rule 135, Section 6, does not imposes as
a condition that the court must first conduct a hearing. So, in relation again to Rule 58, although the
general rule is that a temporary restraining order or a writ of preliminary injunction cannot be issued ex
parte, the trial courts have found another way of issuing a separate order that is effectively a temporary
restraining order without first conducting a summary hearing as required in Rule 58. And this is called a
cease and desist order.

Rule 58 Section 1: Preliminary injunction defined; classes

A preliminary injunction is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act
or acts. It may also require the performance of a particular act or acts, in which case it shall be known as
a preliminary mandatory injunction. (1a)

Comment:

Injunction is a judicial writ, process or proceeding whereby a party is ordered to do or refrain from
doing a particular act.

Preliminary Injunction is an ancillary or preventive remedy where a court requires a person, a party or
even a court or tribunal either to REFRAIN (prohibitory) from or to PERFORM (mandatory) particular
acts during the pendency of an action. It is merely a temporary remedy subject to the final disposition of
the principal action (Dungog vs. CA, 408 SCRA 267)
492
Purpose: To ensure the status quo or to prevent future wrongs in order to preserve and protect certain
interest or rights during the pendency of the action (Cortez-Estrada vs. Heirs of Domingo/Antonia Samut,
451 SCRA 275 Feb. 14, 2005)

Status Quo is the last actual peaceable and uncontested situation which precedes a controversy. It is the
situation existing at the time of the filing of the case.

Requisites:

1. There must be a verified petition;

2. The applicant must establish that he has a right to relief or a right to be protected and that the act
against which the injunction is sought violates such right;

3. The applicant must establish that there is a need to restrain the commission or continuance of the acts
complained of and if not enjoined would work injustice to him;

4. A bond must be posted, UNLESS otherwise exempted by the court;

5. The threatened injury must be incapable of pecuniary estimation.

Kinds of Injunction

Preliminary Prohibitory Injunction

1. Purpose is to prevent a person from the performance of a particular act;

2. The act had not yet been performed;

3. Status Quo is preserved.

Preliminary Mandatory Injunction

1. Purpose is to require a person to perform a particular act;

2. The act has already been performed and this act has violated the rights of another;

3. Status Quo is restored.

When writ may be issued

It may be issued at any stage prior to the judgment or final order.

Injunction may be an action in itself, brought specifically to restrain or command the performance of
an act. As an action, it is immediately executory under Sec. 4, Rule 39.

General Rule: It will not issue against acts already consummated.

493
Exception: If the acts complained of are continuing in nature and where in derogation of plaintiffs right
at the outset.

Prohibitory Injunction

1. Directed against a party in the action;

2. It does not involve jurisdiction of the court;

3. It may be the main action itself or just a provisional remedy.

Prohibition (Rule 65)

1. Directed against a court, tribunal or a person exercising judicial, quasi-judicial or ministerial functions.

2. Based on the ground that the court against whom the writ is sought had acted without or in excess of
jurisdiction;

3. Always the main action.

Mandatory Injunction

1. Directed to a party litigant, NOT to a tribunal and is issued to require a party to perform an act to
restore the last peaceable uncontested status preceding the controversy,

Mandamus (Rule 65)

1. Special civil action seeking a judgment commanding a tribunal, board or officer or person to perform a
ministerial duty required to be performed by law.

xxx ________________________________________ xxx _________________________________xxx

Rule 58 Section 2: Who may grant preliminary injunction

A preliminary injunction may be granted by the court where the action or proceeding is pending. If the
action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said
court or any member thereof. (2a)

Comment:

1. Supreme Court in its original and appellate jurisdiction;

2. Court of Appeals whether or not in aid of its appellate jurisdiction;

3. Trial court in cases pending before it within its territorial jurisdiction;

4. Sandiganbayan;
494
5. Court of Tax Appeals

Note: If the main action is one for injunction, an inferior court cannot grant the preliminary injunction.

Ratio: An action for injunction is one incapable of pecuniary estimation, hence, cognizable by the RTC.

Limitations as to Power of RTC to issue Writ of Preliminary Injunction

1. It could restrain acts being or about to be committed within its territorial jurisdiction only;

2. It could not issue said writ in unfair labor practices;

3. It could not issue said writ against the Securities and Exchange Commissions, Bureau of Patents,
Trademarks and Technology Transfer, or the COMELEC; and

4. It could not interfere by injunction with the judgment of a court of concurrent or coordinate
jurisdiction.

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Rule 58 Section 3: Grounds for issuance of preliminary injunction

A preliminary injunction may be granted when it is established:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such
relief consists in restraining the commission or continuance of the act or acts
complained of, or in requiring performance of an act or acts, either for a
limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or acts

complained of during the litigation would probably work injustice to the
applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do,
or is procuring or suffering to be done, some act or acts probably in violation
of the rights of the applicant respecting the subject of the action or
proceeding, and tending to render the judgment ineffectual. (3a)

Comment:

1. Applicant is entitled to the relief demanded; or

2. Commission, continuance or non performance of the act complained of would work injustice to the
applicant; or

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3. Party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering
to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of
the action or proceeding.

Where a Writ of Preliminary Injunction may NOT be issued by the court:

1. Foreclosure of a mortgage by a government bank (PD 385);

2. Commencement and performance of infrastructure projects by the government unless it is the SC which
will issue the writ (RA 8975);

3. Concessions, licenses, permits, patents or public grants as to the disposition, exploitation, utilization,
exploration, and or development of natural resources (PD 605);

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Rule 58 Section 4: Verified application and bond for preliminary injunction or temporary restraining
order

A preliminary injunction or temporary restraining order may be granted only when:

(a) The application in the action or proceeding is verified, and shows facts entitling the
applicant to the relief demanded; and

(b) Unless exempted by the court, the applicant files with the court where the action
or proceeding is pending, a bond executed to the party or person enjoined, in
an amount to be fixed by the court, to the effect that the applicant will pay to
such party or person all damages which he may sustain by reason of the
injunction or temporary restraining order if the court should finally decide
that the applicant was not entitled thereto. Upon approval of the requisite
bond, a writ of preliminary injunction shall be issued. (4a)

(c) When an application for a writ of preliminary injunction or a temporary restraining

order is included in a complaint or any initiatory pleading, the case, if filed in a
multiple-sala court, shall be raffled only after notice to and in the presence of
the adverse party or the person to be enjoined. In any event, such notice shall
be preceded, or contemporaneously accompanied, by service of summons,
together with a copy of the complaint or initiatory pleading and the
applicant's affidavit and bond, upon the adverse party in the Philippines.

However, where the summons could not be served personally or by

substituted service despite diligent efforts, or the adverse party is a resident
of the Philippines temporarily absent therefrom or is a non-resident thereof,
the requirement of prior or contemporaneous service of summons shall not
apply.

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 (d) The application for a temporary restraining order shall thereafter be acted upon
only after all parties are heard in a summary hearing which shall be conducted
within twenty-four (24) hours after the sheriff's return of service and/or the
records are received by the branch selected by raffle and to which the records
shall be transmitted immediately.

VBJ Notes:

There is also a need in Rule 58, just like in the other provisional remedies for the applicant to
post an injunction bond, unless the court will exempt the application from the filing of the bond.

Instances where the court is precluded from issuing a writ of preliminary injunction

You should also take not of certain laws, that substantive laws, which preclude a court from
issuing a writ of preliminary injunction. For instance, in the banking industry, when the foreclosing bank
is a government bank, the foreclosure by a government bank of a mortgage cannot be stopped by a
court through the issuance of a writ of preliminary injunction. The commencement and performance of
infrastructure projects of the government cannot be stopped by a writ of preliminary injunction unless it
is the Supreme Court that will issue the writ.

Preliminary mandatory Injunction

Of course, the basic rule in injunctions is that when an act has already been committed or
consummated then a writ of preliminary injunction is not a remedy because a writ of preliminary
injunction contemplates that the act is being committed or about to be committed. So if an act has
already been committed or performed and the applicant can no longer apply for the issuance of a writ
of preliminary injunction, does he have a remedy under Rule 58? When the act has already been
committed, and hence, a preliminary injunction is no longer available, the remedy is to ask from the
court the issuance of preliminary mandatory injunction. So, this is a situation where the applicant seeks
to undo what has been done. So while preliminary may no longer available there is still another kind of
injunction that could be used as a remedy, the issuance of a preliminary mandatory injunction.

To illustrate: It is common for MERALCO nowadays to send a statement of account and in that
statement MERALCO usually states that the consumer has unpaid billings. And the unpaid billings are
based on a finding by MERALCO engineers that the consumer could have been stealing electricity. So on
that basis, MERALCO will make an averaging of what MERALCO thinks was the true consumption of the
consumer for the past two or three years. And in that notice, MERALCO tells the consumer that if he
does not pay this past consumption, the electricity will be cutoff, in order to avoid the cutting off of
electricity, of course the consumer can go to court files a case an ordinary action of injunction or
damages as the case may be, and apply for the issuance of a preliminary injunction that is a
prohibitory injunction to stop MERALCO from cutting off the electrical connection. But if MERALCO has
already cut off the electrical connection, the consumer could still file an action for damages or for
injunction as the case may be, and then ask from the court for the issuance of a writ of preliminary
mandatory injunction to compel MERALCO to reconnect the connection of the consumer. And it has
been decided in old cases that a consumer can really ask for the issuance of preliminary mandatory
injunction in these instances. According to the court, the right of the consumer is clear and unmistakable

497
because he is entitled to electrical connection. That is a condition that is found in the franchise given to
MERALCO. And when MERALCO cuts off electricity, that is a clear invasion of the right of the consumer.
If the cutting of is founded simply on a speculation made by MERALCO that the consumer could have
been stealing electricity. But if the cutting off is based on unpaid billings, that is current billings, of
course MERALCO has all the right to disconnect the consumers electrical connection. In these instances,
a preliminary mandatory injunction may not be available because the right of the consumer is NOT clear,
it is not unmistakable.

Writ of preliminary injunction may not be defeated by a counter bond.

There is always a need, as we said ,for an injunction bond. But unlike in other provisional
remedies, a writ of preliminary injunction may not be defeated by a counter bond. In preliminary
attachment, we said that this writ of preliminary attachment could always be defeated by a counter
bond, bond given by the adverse party, an attachment counter bond. A writ of replevin can also be
defeated by a counter bond filed within the five day period by the adverse party. But in the case of
preliminary injunction, even if the adverse party files a counter bond, there is NO assurance that the
court will set aside or lift the preliminary injunction. If you read Rule 58 carefully, it is provided that even
if there is a counter bond, the court may set aside or lift the writ of preliminary injunction. Meaning to
say that the court could still study whether or not the writ of preliminary injunction should continue
notwithstanding the filing of a counter bond.

Comment:

Absence of verification makes an application or petition for preliminary injunction patently

insufficient both in form and substance (Rivera vs. Mirasol, 434 SCRA 315)
The applicant must post a BOND unless exempted by the court. This shall be in an amount to be
fixed by the court and executed in favor of the party enjoined to the effect that the applicant shall
pay to the party enjoined all damages which he may sustain by reason of the preliminary
injunction or the restraining order if the court should finally decide that the applicant was not
entitled to the writ or order.

xxx ________________________________________ xxx _________________________________xxx

Rule 58 Section 5: Preliminary injunction not granted without notice; exception

No preliminary injunction shall be granted without hearing and prior notice to the party or person
sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that
great or irreparable injury would result to the applicant before the matter can be heard on notice, the
court to which the application for preliminary injunction was made, may issue a temporary restraining
order to be effective only for a period of twenty (20) days from service on the party or person sought to
be enjoined, except as herein provided. Within the said twenty-day period, the court must order said
party or person to show cause, at a specified time and place, why the injunction should not be granted,
determine within the same period whether or not the preliminary injunction shall be granted, and
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accordingly issue the corresponding order. (As amended by Resolution of the Supreme Court, Feb. 17,
1998)

However, and subject to the provisions of the preceding sections, 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.

In the event that the application for preliminary injunction is denied or not resolved within the said
period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary
restraining order is not extendible without need of any judicial declaration to that effect and no court
shall have authority to extend or renew the same on the same ground for which it was issued.

However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall
be effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining
order issued by the Supreme Court or a member thereof shall be effective until further orders. (5a)

VBJ Notes:

In Rule 58 we meet the terms irreparable injury. And the meaning of the term irreparable
injury is already settled. It is, it has nothing to do with money, although the word irreparable seems to
have connection with money. According to the court irreparable injury is an injury that is of constant
and frequent recurrence, not necessarily involving money, by reason of which a fair redress could not be
had in a trial court. So the definition is also broad. It is an injury that is frequent and constant in
recurrence.

Comment:

There must be prior notice to the person sought to be enjoined and a hearing before preliminary injunction
may be granted.

A. IF great or irreparable injury would result to the applicant before the matter can be heard on notice:

* The court may issue a temporary restraining order, effectively only for 20 days from notice on the party
sought to be enjoined.

B. IF the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury:

* The judge may issue EX PARTE a TRO effective only for 72 hours from issuance.

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* Its effectivity may be extended after conducting a summary hearing within the 72 hour period until the
application for preliminary injunction can be heard.

Injury is considered IRREPARABLE if it is of such constant and frequent recurrence that no fair or
reasonable redress can be had therefore in court of law or where there is no standard by which their
amount can be measured with reasonable accuracy. (SSC vs. Bayona, G.R. No. L-13555, May 30, 1982)

The total period of effectivity of the TRO shall not exceed 20 days, including 72 hours.

Note: If the application is denied or not resolved within said period, the TRO is deemed automatically
vacated.

The effectivity of TRO is not extendible. There is NO need for a judicial declaration to that effect.

A TRO issued by the CA or any of its members is effective for 60 days from notice to the party
sought to be enjoined.
A TRO issued by the SC or a member thereof is effective until further orders.

Note: The trial court, the CA, the Sandiganbayan or the CTA that issued a writ of preliminary injunction
against a lower court, board, officer, or quasi judicial agency shall decide the main case or petition within
six (6) months from the issuance of the writ (As Amended by A.M. No. 07-7-12-SC effective Dec. 27,
2007)

An order granting a writ of preliminary injunction is an interlocutory order, not a final order.
Unlike other provisional remedies, preliminary injunction may NOT be defeated by a
counterbond.
It is improper for a judge to order a hearing on the issuance of a temporary restraining order
where it was NOT prayed for in the complaint (Universal Motors Corporation vs. Rojas, 459
SCRA 14)

Injunction

1. May exceed 20 days;

2. Restrains or requires the performance of particular acts.

TRO

1. Does not exceed 20 days (RTC); Does not exceed 60 days (CA); Indefinite (SC).

2. Maintains the status quo;

Status quo Order is not a TRO. It is more in the nature of a cease and desist order. It has no specified
duration and does not specifically direct the performance of an act. It last until it is revoked. Its duration
may even be subject to agreement of the parties. NO bound is required for its issuance. (Riano, 2009, Bar
2006)

500
Note: It is resorted to when the projected proceedings in the case made the conservation of the status quo
desirable or essential, but the affected party neither sought such relief nor did the allegations in his
pleading sufficiently make out a case for a TRO.

TRO issued by executive judge for multi-sala courts/ ordinary judge for single sala courts

1. Good for 72 hours

2. Issued before raffling

3. Issued ex parte.

TRO issued by ordinary judge

1. Good for 20 days including the first 72 hours;

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Rule 58 Section 6: Grounds for objection to, or for motion of dissolution of, injunction or restraining
order

The application for injunction or restraining order may be denied, upon a showing of its insufficiency.
The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other
grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by
affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that
although the applicant is entitled to the injunction or restraining order, the issuance or continuance
thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the
applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an
amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by
the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the
preliminary injunction or restraining order granted is too great, it may be modified. (6a)

Comment:

1. Insufficiency;

2. On other grounds upon affidavits of the party or person enjoined, which may be opposed by the
applicant also by affidavits; and

3. If the injunction would cause irreparable damage to the person enjoined while the applicant can be fully
compensated for such damages as he may suffer provided the defendant files a BOND to pay all the
damages which the applicant may suffer.

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Rule 58 Section 7: Service of copies of bonds; effect of disapproval of same

501
The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such
bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties
thereon. If the applicant's bond is found to be insufficient in amount, or if the surety or sureties thereon
fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not
filed forthwith, the injunction shall be dissolved. If the bond of the adverse party is found to be
insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with
sufficient sureties as approved after justification is not filed forthwith, the injunction shall be granted or
restored, as the case may be. (8a)

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Rule 58 Section 8: Judgment to include damages against party and sureties

At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party,
shall be claimed, ascertained, and awarded under the same procedure as prescribed in Section 20 of
Rule 57. (9a)

Comment:

The procedure for claiming damages on the bond is the same as that in preliminary attachment.

Recovery of damages for irregular issuance of injunction, as where the main case is dismissed and the
injunction is dissolved, is limited to the amount of the bond.

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Section 9: When final injunction granted

If after the trial of the action it appears that the applicant is entitled to have the act or acts complained
of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or
person enjoined from the commission or continuance of the act or acts or confirming the preliminary
mandatory injunction. (10a)

Comment:
If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of
permanently enjoined.
Preliminary Injunction
1. Section 1 Rule 58;
2. Granted at any stage of an action prior to the judgment or final order therein.

Final Injunction
1. Section 1 Rule 58;
2. One issued in the judgment in the case permanently restraining the defendant or making the
preliminary injunction permanent.

502
 xxx ________________________________________ xxx _________________________________xxx

RULE 59
Receivership

VBJ Notes:

We go to other provisional remedy Receivers. Receivership is both a principal action and a

provisional remedy just like injunction. Injunction is an ordinary civil action. It could be coupled with a
provisional remedy of preliminary injunction. The same is true with receivership. There could be a
complaint for receivership. And in that complaint for receivership, the applicant could ask for the
immediate appointment of a receiver during the pendency of the case. But just like in injunction,
receivership as a provisional remedy cannot be issued by the court ex parte. There must always be
hearing, when it comes to the appointment of a receiver as a provisional remedy.

This is also a unique provisional remedy because unlike in the others, unlike in preliminary
attachment, preliminary injunction or replevin, receivership could be availed of even after the case has
been terminated. Even if there is already a judgment rendered by the court and that judgment become
final and executory, the court could still appoint a receiver. This is provided in Rule 39. We said, when
we were discussing Rule 39, that if there is an award of money and the writ of execution is returned
unsatisfied, one of the remedies available to the judgment creditor is to seek the appointment of a
receiver. The receiver appointed in Rule 39 is the same receiver mentioned in provisional remedies. So,
a receiver could be appointed even after the termination of the case, even during the execution stage of
the judgment.

For the court to appoint validly a receiver, the property must be under litigation. And the basic
principle in receivers is that a court should not appoint a receiver if the consequence is to dispossess the
adverse party the one in possession of the property during the pendency of the case. Even if the
applicant has or is able to show that he has an interest over the property, this remedy generally is not
available to dispossess the adverse party while the case is being heard.

But in foreclosure proceedings, you will note that the rule specifically mentions that in
foreclosure, the mortgage during the pendency of the case, can seek the appointment of a receiver. And
in this manner, the receiver may be able to take possession of the property. But that is not again the
general rule in foreclosure of mortgage. This is available only if the mortgagee can present evidence that
the mortgagor is allowing the deterioration or the mortgagor himself causes the deterioration of the
property which is very unusual because in foreclosure of mortgage it is the mortgagor who owns the
property and he has every reason to preserve the property that is the subject of the litigation.

Is a receiver a representative party or a real party in interest?

503
 Receivers are officers of the court. They are persons who are indifferent to the litigants. So a
receiver does not represent the plaintiff. The receiver does not represent the defendant. He is a neutral
person. He is an officer of the court.

Since a receiver is a neutral person, an indifferent person can he be considered as a

representative party, as defined in Rule 3? So if you will recall, we came across the term representative
party when we were classifying parties into indispensible party, necessary or proper party. And then
Rule 3 speaks about a representative party.

A receiver is not a representative party under Rule 3. Therefore, the receiver himself is a real
party in interest. In Rule 3, representative party, if he files a case or defends an action filed against him is
mandated to name the real party in interest. So if an executor or administrator must indicate in his
pleading that he is merely a representative party and he must identify the real party in interest. The
concept of a representative party under Rule 3 does not apply to a receiver. A receiver is not a
representative party. He is a real party in interest.

Consent of receivership court is required in all cases filed by or against the receiver

But what is clear when it comes to cases filed by or against a receiver, although he is a real party
in interest, is that a receiver cannot file a case. He cannot commence an action as plaintiff without the
consent of the receivership court - that is the court which appointed him as a receiver. In the same
manner that a receiver cannot be sued. A receiver cannot be impleaded as a defendant in an action
without the permission of the court which appointed him as a receiver. So if there is any claim against
any receiver, the plaintiff must first get the permission of the court before a complaint could be filed
against the receiver. If these provision are not met, the case against the receiver could be dismissed. If
the receiver files a complaint without first asking for leave of court, this case filed by the receiver could
also be dismissed. So whether he is impleaded as a defendant or he commences the action himself, the
receivership court must give its permission to the filing of the case or to the impleading the receiver as a
defendant.

Rule 59 Section 1 Appointment of receiver

Upon a verified application, one or more receivers of the property subject of the action or proceeding
may be appointed by the court where the action is pending, or by the Court of Appeals or by the
Supreme Court, or a member thereof, in the following cases:

(a) When it appears from the verified application, and such other proof as the court
may require, that the party applying for the appointment of a receiver has an
interest in the property or fund which is the subject of the action or
proceeding, and that such property or fund is in danger of being lost,
removed, or materially injured unless a receiver be appointed to administer
and preserve it;

504
 (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage
that the property is in danger of being wasted or dissipated or materially
injured, and that its value is probably insufficient to discharge the mortgage
debt, or that the parties have so stipulated in the contract of mortgage;

(c) After judgment, to preserve the property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid execution when the
execution has been returned unsatisfied or the judgment obligor refuses to
apply his property in satisfaction of the judgment, or otherwise to carry the
judgment into effect;

(d) Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of
the property in litigation.

During the pendency of an appeal, the appellate court may allow an application for the appointment of
a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to
the control of said court. (1a)

Comment:

Upon VERIFIED APPLICATION, one or more receivers of the property which is the subject of the
action may be appointed by the court where the action is pending in the following cases:

1. Applicant has an interest in the property or fund subject of the proceeding and such property is in
danger of being lost, removed, or materially injured unless a receiver is appointed;

2. In foreclosure of mortgage, when the property is in danger of being wasted, dissipated or materially
injured, and that its value is probably insufficient to discharge the mortgage debt or that it has been agreed
upon the parties;

3. After the judgment, to preserve the property during the pendency of an appeal or to dispose of it
according to the judgment or to aid execution;

4. When appointment of receiver is the most convenient and feasible means of preserving, administering
or disposing of the property in litigation.

Note: The property must be under litigation.

Purpose: For the preservation of, and at making some secure existing rights; to protect and preserve the
rights of the parties during the pendency of the main action, during the pendency of an appeal or as an aid
in the execution of a judgment when the writ of execution has been returned unsatisfied (Riano 2009)

A receiver is a person appointed by the court in behalf of all parties to an action for the purpose of
preserving the property involved in the suit and to protect the rights of all the parties under the direction
of the court (Mallari vs. CA, G.R. No. L-26467, July 15, 1981). He is an officer of the court who is
indifferent to the litigants and neutral.

505
A receiver is not a representative party under Rule 3 but a real party in interest, BUT he cannot file a case
without the consent of the receivership court.

Receivership like injunction, may be the principal action itself or just an ancillary remedy.
Such appointment of the RTC, during the perfection of an appeal, is covered by its residual
jurisdiction under Sec. 9 of Rule 41, since this does not involve any matter litigated by the appeal.
A receiver could be appointed even after the termination of the case, even during the execution
stage of the judgment.

Note: This provisional remedy may be resorted to during the pendency of an appeal or even after the
judgment has become final and executory.

Who may grant receivership

Receivership may be granted by the court in which the action is pending, by the Court of Appeals or the
Supreme Court, or any member thereof.

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Rule 59 Section 2 Bond on appointment of receiver

Before issuing the order appointing a receiver the court shall require the applicant to file a bond
executed to the party against whom the application is presented, in an amount to be fixed by the court,
to the effect that the applicant will pay such party all damages he may sustain by reason of the
appointment of such receiver in case the applicant shall have procured such appointment without
sufficient cause; and the court may, in its discretion, at any time after the appointment, require an
additional bond as further security for such damages. (3a)

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Rule 59 Section 3 Denial of application or discharge of receiver

The application may be denied, or the receiver discharged, when the adverse party files a bond
executed to the applicant, in an amount to be fixed by the court, to the effect that such party will pay
the applicant all damages he may suffer by reason of the acts, omissions, or other matters specified in
the application as ground for such appointment. The receiver may also be discharged if it is shown that
his appointment was obtained without sufficient cause. (4a)

Comment:

Receivership may be denied or lifted:

1. If the appointment sought or granted is without sufficient cause (Sec. 3)

2. Adverse party files a sufficient bond to answer for damages (Sec. 3)

3. Bond posted by the applicant for grant of receivership is insufficient (Sec. 5)

506
4. Bond of the receiver is insufficient (Sec. 5)

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Rule 59 Section 4 Oath and bond of receiver

Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file a
bond, executed to such person and in such sum as the court may direct, to the effect that he will
faithfully discharge his duties in the action or proceeding and obey the orders of the court. (5a)

Comment:

Before entering upon his duties, the receiver shall be SWORN to perform them faithfully and shall file a
BOND.

Two kinds of Bonds in Receivership

1. Applicants Bond;

2. Receivers Bond

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Rule 59 Section 5 Service of copies of bonds; effect of disapproval of same

The person filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy
thereof on each interested party, who may except to its sufficiency or of the surety or sureties thereon.
If either the applicant's or the receiver's bond is found to be insufficient in amount, or if the surety or
sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case
may be. If the bond of the adverse party is found to be insufficient in amount or the surety or sureties
thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after
justification is not filed forthwith, the receiver shall be appointed or re-appointed, as the case may be.
(6a)

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Rule 59 Section 6 General powers of receiver

Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the
power to bring and defend, in such capacity, actions in his own name; to take and keep possession of
the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund,
property, estate, person, or corporation of which he is the receiver; to compound for and compromise
the same; to make transfers; to pay outstanding debts; to divide the money and other property that
shall remain among the persons legally entitled to receive the same; and generally to do such acts
507
respecting the property as the court may authorize. However, funds in the hands of a receiver may be
invested only by order of the court upon the written consent of all the parties to the action. (7a)

No action may be filed by or against a receiver without leave of the court which appointed him. (n)

Comment:

1. Bring and defend, in such capacity, actions in his own name;

2. Take and keep possession of the property in controversy;

3. Receive rents;

4. Collects debts due to himself as receiver or to the fund, property, estate, person, or corporation of
which he is the receiver.

5. Compound for and compromise the same;

6. Make transfer;

7. Pay outstanding debts;

8. Divide the money and other property that shall remain among the person legally entitled to receive the
same.

9. Generally to do such acts respecting the property as the court may authorize; and

10. Invest funds in his hands, only by order of the court upon the written consent of all parties.

* No action may be brought by or against a receiver without leave of the court which appointed him.

* A receiver may NOT invest funds without an order from the court and without the written consent of
the parties to the action.

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Rule 59 Section 7 Liability for refusal or neglect to deliver property to receiver

A person who refuses or neglects, upon reasonable demand, to deliver to the receiver all the property,
money, books, deeds, notes, bills, documents and papers within his power or control, subject of or
involved in the action or proceeding, or in case of disagreement, as determined and ordered by the
court, may be punished for contempt and shall be liable to the receiver for the money or the value of
the property and other things so refused or neglected to be surrendered, together with all damages that
may have been sustained by the party or parties entitled thereto as a consequence of such refusal or
neglect. (n)
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Comment:

A person who refuses or neglects to deliver a property, within his control and which is the subject of the
action, to the receiver may be punished for CONTEMPT and shall be liable to the receiver for the money
or the value of the property plus DAMAGES.

xxx ________________________________________ xxx _________________________________xxx

Rule 59 Section 8 Termination of receivership; compensation of receiver

Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a
receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the
accounts of the receiver, direct the delivery of the funds and other property in his possession to the
person adjudged to be entitled to receive them, and order the discharge of the receiver from further
duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of
the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires.
(8a)

Comment:

The court, (1) on motion of either party or motu proprio, (2) upon determining that the necessity for a
receiver no longer exists, shall (3) after due notice to all parties and a (4) hearing, settle the accounts of
the receiver, direct delivery of the funds or property in his possession to the person adjudged entitled
thereto and order the discharge of the receiver. The receivers shall be entitled to a reasonable
compensation which is to be taxed as cists upon the defeated party or apportioned as justice requires.

xxx ________________________________________ xxx _________________________________xxx

Rule 59 Section 9 Judgment to include recovery against sureties

The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of
this Rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in Section
20 of Rule 57. (9a)

Comment:
Note: Where the damages sustained were not by reason of the appointment of the receiver but to his own
malfeasance, the recovery shall be against the receivers bond and may be recovered in a separate action.
(Dela Rosa & Co. vs. De Borja, G.R. No. L-28611, Jan. 30, 1929)

xxx ________________________________________ xxx _________________________________xxx

RULE 60
Replevin

Rule 60 Section 1: Application

509
A party praying for the recovery of possession of personal property may, at the commencement of the
action or at any time before answer, apply for an order for the delivery of such property to him, in the
manner hereinafter provided. (1a)

Comment:

Replevin Is the provisional remedy seeking for the possession of the property prior to the determination
of the main action for replevin.

Replevin may also be a main action with the ultimate goal of recovering personal property capable of
manual delivery wrongfully detained by a person. In this, sense, it is a suit in itself. (Riano, 2009)

When applied For

A writ of replevin must be applied for at the commencement of the action or at any time before the
defendant files his answer, for which reason there can be no replevin before the appellate courts.

Writ of Replevin

1. The purpose is to recover personal property capable of manual deliver from defendant;

2. The property either belongs to the plaintiff or one over which the plaintiff has a right of possession;

3. May be sought only when the principal action is for the recovery of personal property;

4. Can be sought only when defendant is in actual or constructive possession of the property;

5. Cannot be availed of when property is in custodial egis.

6. Available before defendants answers.

7. Bond is double the value of the property;

8. Extends only to personal property capable of manual delivery;

9. Available to recover personal property even if the same is not being concealed, removed or disposed of.

Writ of Preliminary Attachment

1. The purpose is to have the property put in the custody of the court to secure the satisfaction of the
judgment that may be rendered in favor of the plaintiff at some future time;

2. The property does not belong to the to the plaintiff but to the defendant;

3. Available even if recovery of property is only incidental to the relief sought;

4. May be resorted to even if the property is in possession of a third person;

510
5. Can be availed of even if property is in custodial egis.

6. Available from commencement but before entry of judgment (i.e. even when there has already been an
answer)

7. Bond is fixed by the court;

8. Extends to all kinds of property whether real, personal, or incorporeal.

9. Attachment to recover possession of personal property unjustly detained presupposes that the same is
being concealed, removed or disposed of to prevent its being found or taken by the applicant.

Note: There can be no replevin and preliminary attachment in the same case because the purposes are
different. In Rule 60, it is for recovery of possession.

xxx ________________________________________ xxx _________________________________xxx

Rule 60 Section 2 Affidavit and bond

The applicant must show by his own affidavit or that of some other person who personally knows the
facts:

(a) That the applicant is the owner of the property claimed, particularly describing it,
or is entitled to the possession thereof;

(b) That the property is wrongfully detained by the adverse party, alleging the cause of
detention thereof according to the best of his knowledge, information, and
belief;

(c) That the property has not been distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized, that it is
exempt from such seizure or custody; and

(d) The actual market value of the property.

The applicant must also give a bond, executed to the adverse party in double the value of the property
as stated in the affidavit aforementioned, for the return of the property to the adverse party if such
return be adjudged, and for the payment to the adverse party of such sum as he may recover from the
applicant in the action. (2a)

Comment:

Procedure for the application for Replevin (Requisites):

1. File an APPLICATION at the commencement of the action or at any time before defendant answers;

511
2. Application must contain an AFFIDAVIT. The affidavit must show that:

a. Applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession
thereof.

b. Property is wrongfully detained by the adverse party;

c. Property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under
a writ of execution or under custodial egis;

d. Actual market value of the property;

3. Applicant must give a BOND, executed to the adverse party and double the value of the property.

xxx ________________________________________ xxx _________________________________xxx

Rule 60 Section 3: Order

Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the
corresponding writ of replevin describing the personal property alleged to be wrongfully detained and
requiring the sheriff forthwith to take such property into his custody. (3a)

Comment:

Upon the filing of the affidavit and the approval of the bond, the court shall issue an ORDER and the
corresponding WRIT OF REPLEVIN describing the personal property and requiring the sheriff to take
such property into his custody.

xxx ________________________________________ xxx _________________________________xxx

Rule 60 Section 4: Duty of the sheriff

Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a
copy of the application, affidavit and bond, and must forthwith take the property, if it be in the
possession of the adverse party, or his agent, and retain it in his custody. If the property or any part
thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not
delivered, he must cause the building or enclosure to be broken open and take the property into his
possession. After the sheriff has taken possession of the property as herein provided, he must keep it in
a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his
fees and necessary expenses for taking and keeping the same. (4a)

Comment:

1. Serve a copy of the order together with a copy of the application, affidavit and bond to the adverse
party;

512
2. Take the property, if it be in the possession of the adverse party, or his agent, and retain it in his
custody;

3. Demand delivery of the property if the property is concealed in a building or enclosure, and if it be not
delivered, cause the building or enclosure to be broken open and take the property into his possession;

4. After taking possession, keep the property in a secure place and shall be responsible for its delivery to
the party entitled thereto.

xxx ________________________________________ xxx _________________________________xxx

Rule 60 Section 5 Return of property

If the adverse party objects to the sufficiency of the applicant's bond, or of the surety or sureties
thereon, he cannot immediately require the return of the property, but if he does not so object, he may,
at any time before the delivery of the property to the applicant, require the return thereof, by filing with
the court where the action is pending a bond executed to the applicant, in double the value of the
property as stated in the applicant's affidavit for the delivery thereof to the applicant, if such delivery be
adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and
by serving a copy of such bond on the applicant. (5a)

Comment:

In order to recover possession of the personal property taken under a writ of replevin, the defendant must
post a REDELIVERY BOND (also double the value of the property as stated in the applicants affidavit)
and serve a copy of such bond on the plaintiff within five (5) days from the taking by the officer. Both
requirements are mandatory and must be complied with within the 5-day period.

xxx ________________________________________ xxx _________________________________xxx

Rule 60 Section 6: Disposition of property by sheriff

If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to
the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and
the court affirms its approval of the applicant's bond or approves a new bond, or if the adverse party
requires the return of the property but his bond is objected to and found insufficient and he does not
forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the
property is not delivered to the applicant, the sheriff must return it to the adverse party. (6a)

Comment:

The sheriff shall retain the property for five (5) days. Within which such period, the adverse party

(1) May object to the sufficiency of the applicants bond or surety or ;

(2) He may file a redelivery bond;

513
After five (5) days and the adverse party failed to object or his redelivery bond is insufficient, the sheriff
shall deliver the property to the applicant.

Defendant Entitled to the Return of the Property under a Writ of Replevin if:

1. He seasonably posts a redelivery bond;

2. Plaintiffs bond is found to be insufficient or defective and is not replaced with a proper bond;

3. Property is not delivered to the plaintiff for any reason.

xxx ________________________________________ xxx _________________________________xxx

Rule 60 Section 7 Proceedings where property claimed by third person

If the property taken is claimed by any person other than the party against whom the writ of replevin
had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the
possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the
latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be
bound to keep the property under replevin or deliver it to the applicant unless the applicant or his
agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property under replevin as provided in Section 2 hereof.
In case of disagreement as to such value, the court shall determine the same. No claim for damages for
the taking or keeping of the property may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the filing of the bond.

The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-
party claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or any
third person from vindicating his claim to the property, or prevent the applicant from claiming damages
against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate
action.

When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly
representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages
as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefor,
the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be
appropriated for the purpose. (7a)

Comment:

Similar as in third party claims in execution and in attachment.

Note: In section 14 of Rule 57, the affidavit is served upon the sheriff while he has possession of the
attached property. In section 7 of Rule 60, the affidavit is served within five (5) days in which the sheriff
has possession, in connection with Section 6.

xxx ________________________________________ xxx _________________________________xxx

514
Rule 60 Section 8: Return of papers

The sheriff must file the order, with his proceedings indorsed thereon, with the court within ten (10)
days after taking the property mentioned therein. (8a)

Comment:

The sheriff must file the order, with his proceedings indorsed thereon with the court within 10 days after
taking the property.

xxx ________________________________________ xxx _________________________________xxx

Rule 60 Section 9: Judgment

After trial of the issues, the court shall determine who has the right of possession to and the value of the
property and shall render judgment in the alternative for the delivery thereof to the party entitled to the
same, or for its value in case delivery cannot be made, and also for such damages as either party may
prove, with costs. (9a)

Comment:

The court shall determine who has the right of possession to and the value of the property and shall render
JUDGMENT IN THE ALTERNATIVE for the delivery to the party entitled to the same, or for its value
in case delivery cannot be made, and also for damages that may be proven by the parties, with costs.

xxx ________________________________________ xxx _________________________________xxx

Rule 60 Section 10: Judgment to include recovery against sureties

The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of
this Rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in Section
20 of Rule 57. (10a)

Comment:

Plaintiff who obtains possession of the personal property by a writ of replevin DOES NOT ACQUIRE
absolute title thereto, nor does the defendant acquire such title by re-bonding the property, as they only
hold the property subject to the final judgment in the action. A buyer of such property also does not
acquire title thereto but also holds the property subject to the results of the suit.

Suretys liability under the replevin bond should be included in the final judgment to prevent duplicity of
suits or proceedings.

Provisions of Section 20 of Rule 57 are applicable not only to the replevin bond of the plaintiff
but also to the redelivery bond posted by the defendant for the filing of the writ.

515
Replevin Bond is simply intended to indemnify the defendant against loss that he may suffer by being
compelled to surrender the possession of the disputed property pending trial of the action.

Note: A writ of replevin may be served anywhere in the Philippines.

xxx ________________________________________ xxx _________________________________xxx

RULE 61
Support Pendente Lite

VBJ Notes:

The last provisional remedy that is under the Rules is Support Pendente Lite. And whenever you
utter the words support pendente lite, you should always emphasize the word R. Otherwise, a different
meaning will be conveyed. Well, there are other words which we have derived from the Spanish
language for instance, where the word are should always be emphasized like support which is an English
word. Usually when we talk in our dialects, we use the words por que Spanish word, we always
emphasize the R in that word.

Again, although the Rules enumerate specifically these provisional remedies from 57 up to
Support Pendente Lite, I would like to remind you that this is not an exclusive enumeration of
provisional remedies. There are other provisional remedies not included in the enumeration made by
the Rules. And we mentioned some of them. An order of a court allowing temporary custody of minors
is a provisional remedy. An order of a court allowing visitation rights of a parent is also considered as a
provisional remedy.

Characteristics of support pendente lite vis--vis other provisional remedies

There are also unusual characteristics of support pendente lite as a provisional remedy which is
not found in the other provisional remedies. In the first place, this is a provisional remedy which under
Rule 39 is immediately executory together with injunction, together with receivers. And this case of
support exemplifies a judgment if there is already a judgment which can never become final even after
the lapse of the 15 days or the 30 day period to appeal as the case may be. Support is one decision
which can be changed at anytime by the court because it is really an unusual case. If the court issues a
decision directing the defendant to give a monthly support of P10, 000 a month and the judgment has
become final and executory, we do not apply the rule on res judicata. We do not consider a judgment of
support as immutable or unalterable after it has become executory, after it has been entered. Even if
the judgment of the court directing the defendant to give P10, 000 a month has long become executory,
the court can still change the amount, that is the amount could be reduced, it could be increased,
depending on the needs of the one to be supported, and depending also on the means of the one who is
ordered to give support.

Complaint for support

What is the principal action upon which support pendente lite should rely? The principal action
usually is a complaint for support. So there is a complaint for support and the provisional remedy is for
516
the court to issue this writ directing the respondent, the adverse party to pay support pendente lite
during the pendency of the case.

Which court has jurisdiction over the principal action for support? Let us say that the complaint
seeks for an award of P5, 000 a month. Will that case be cognizable by an inferior court? The Supreme
Court has come out with several decisions that an action for support is an action that is not capable of
pecuniary estimation, and before the creation of family court, it was the rule that a complaint for
support is cognizable exclusively by a Regional Trial Court because it is a complaint which is not capable
of pecuniary estimation. But under the present set up, a complaint for support is now exclusively
cognizable by a Family Court.

Is it possible under the circumstances for an inferior court to issue this provisional remedy of support
pendente lite?

Well the answer is YES. Although a family court is given exclusive original jurisdiction to try and
decide cases involving support, when the case is a criminal case, and no one of the penalties that could
be imposed by the court is the giving of support, as long as the criminal case is cognizable by an inferior
court, the inferior court can issue this provisional remedy. So it is in a criminal case which is cognizable
by an inferior court, and as limited in the Rules, provided that the civil aspect of that criminal case has
not been reserved or waived? As long as the civil aspect is tried together with the criminal case filed
before the inferior court the inferior court can still issue this provisional remedy.

But in purely civil actions, it seems that an inferior court has no authority to try civil actions for
support or other cases where support could be an incidental relief. These civil actions are now allocated
exclusively to Family courts.

Here is a complaint for support filed by the minor, represented by the mother, against the
defendant in the complaint, the plaintiff alleges that the defendant is the father of the minor. There is
now an application for support pendente lite. As we said a while ago, that application cannot be heard
ex parte. There must always be a hearing on an application for support pendente lite. The defendant
opposes the motion on the ground that he is not the father, that his wife had an adulterous relation and
he could not be the father of the minor plaintiff. Can the court still issue an order directing the
defendant to give support pendente lite, notwithstanding the defense of the defendant that he is not
the father of the minor? Again under our present set-up, that is possible. Even if the defendant denies
his relationship with the plaintiff, the court could conduct a summary hearing and make a provisional
finding that the defendant is really bound to give support pendente lite. So a defense by the defendant
that he is not the father of the minor applicant will not be a good excuse for him to avoid giving support
pendente lite, because the court is authorized to make a provisional finding on the filiation between the
plaintiff and the defendant.

Support Pendente Lite is an amount of support provisionally fixed by the court in favor of the person
or persons entitled thereto during the pendency of an action for support. Here the main action is for
support and support pendente lite is a provisional remedy.

Note: Under Section 4 of Rule 39, the judgment in an action for support is immediately executory.

517
The provisional remedy is available ONLY in an Action for Support, or where one of the reliefs sought is
Support for the Applicant (Coquia vs. Baltazar, G.R. No. L-2942, December 29, 1949)

Where filed: It is exclusively cognizable by a Family Court

Except: In criminal actions, where right to support arises by reason of crime and as long as the civil
aspect is tried together with it, the RTC and MTC having jurisdiction may also issue this remedy.

Rule 61 Section 1: Application

At the commencement of the proper action or proceeding, or at any time prior to the judgment or final
order, a verified application for support pendente lite may be filed by any party stating the grounds for
the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or
other authentic documents in support thereof. (1a)

Comment:

1. At the commencement of the action; or

2. At any time before judgment or final order.

The application must be VERIFIED, stating the grounds for the claim and the financial conditions of both
parties. It shall be accompanied by:

1. Affidavits;

2. Depositions;

3. Other authentic documents in support thereof.

Note: Where the right to support is put in issue by the pleading or the fact from which the right is in
controversy or has not been established, the court cannot grant support pendente lite. (Francisco vs.
Zandueta, G.R. No. L-43794, Aug. 9, 1935)

Rule 61 Section 2: Comment

A copy of the application and all supporting documents shall be served upon the adverse party, who
shall have five (5) days to comment thereon unless a different period is fixed by the court upon his
motion. The comment shall be verified and shall be accompanied by affidavits, depositions or other
authentic documents in support thereof. (2a, 3a)

Comment:

xxx ________________________________________ xxx _________________________________xxx

Rule 61 Section 3: Hearing

518
After the comment is filed, or after the expiration of the period for its filing, the application shall be set
for hearing not more than three (3) days thereafter. The facts in issue shall be proved in the same
manner as is provided for evidence on motions. (4a)

xxx ________________________________________ xxx _________________________________xxx

Rule 61 Section 4: Order

The court shall determine provisionally the pertinent facts, and shall render such orders as justice and
equity may require, having due regard to the probable outcome of the case and such other
circumstances as may aid in the proper resolution of the question involved. If the application is granted,
the court shall fix the amount of money to be provisionally paid or such other forms of support as
should be provided, taking into account the necessities of the applicant and the resources or means of
the adverse party, and the terms of payment or mode for providing the support. If the application is
denied, the principal case shall be tried and decided as early as possible. (5a)

Comment:

If the application is granted, the court shall issue an order where it shall fix the amount of money to be
provisionally paid as support. If denied, the principal case shall be tried and decided as early as possible.

xxx ________________________________________ xxx _________________________________xxx

Rule 61 Section 5: Enforcement of order

If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu
proprio or upon motion, issue an order of execution against him, without prejudice to his liability for
contempt. (6a)

When the person ordered to give support pendente lite refuses or fails to do so, any third person who
furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ
of execution to enforce his right of reimbursement against the person ordered to provide such support.
(n)

VBJ Notes:

Another feature of support pendente lite which is not found in other awards for the payment of
money, is that there is an order directing the defendant to pay a sum of money, P10,000 a month to the
beneficiary, and the respondent does not comply with the order of the court, the court can issue a writ
of execution which is the usual remedy when it comes to the enforcement of a money judgment or a
money award. And in addition to a writ of execution, the court could cite the defendant in contempt of
court, which is very unusual. We said when we were taking up Rule 39, that in money judgment,
contempt is not a remedy. In money judgment, the remedy of the winning party is to ask the court to
issue a writ of execution and to levy on properties belonging to the judgment debtor. Citation for
contempt is not a remedy available to enforce a money award, that is except in support pendente lite. In
addition to a writ of execution, there could be a citation for contempt of court. It is not in the

519
alternative. The court could issue a writ of execution and at the same time, cite the defendant guilty of
contempt of court.

Comment:

Failure to comply with an order granting support pendente lite may warrant:

The issuance of an ORDER OF EXECUTION against the non-complying party; and

May likewise make him liable for CONTEMPT.

Note: Support pendente lite is INTERLOCUTORY ORDER, thus, the same may be modified at any stage
of the proceedings. The amount fixed in the order is only provisional. It can be modified depending on the
changing conditions affecting the ability of the obligor to pay the amount.

xxx ________________________________________ xxx _________________________________xxx

Rule 61 Section 6: Support in criminal cases

In criminal actions where the civil liability includes support for the offspring as a consequence of the
crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing, the
accused may be ordered to provide support pendente lite to the child born to the offended party
allegedly because of the crime. The application therefor may be filed successively by the offended party,
her parents, grandparents or guardian and the State in the corresponding criminal case during its
pendency, in accordance with the procedure established under this Rule. (n)

Comment:

Article 345 RPC, Civil liability of persons guilty of crimes against chastity Persons guilty of rape,
seduction or abduction shall also be sentenced x x x (3) in every case to support the offspring.

Abduction may be committed with mere lewd design, without carnal knowledge; hence, there need not
necessarily be an offspring.

xxx ________________________________________ xxx _________________________________xxx

Rule 61 Section 7: Restitution

When the judgment or final order of the court finds that the person who has been providing
support pendente lite is not liable therefor, it shall order the recipient thereof to return to the former
the amounts already paid with legal interest from the dates of actual payment, without prejudice to the
right of the recipient to obtain reimbursement in a separate action from the person legally obliged to
give the support. Should the recipient fail to reimburse said amounts, the person who provided the
same may likewise seek reimbursement thereof in a separate action from the person legally obliged to
give such support. (n)

VBJ Notes:

520
 If the court makes a provisional finding that the defendant is really the father of the minor
applicant, is that not a final determination of the relationship between the two? The Rules are very
clear. This is merely a provisional finding. In other words, the court can make different finding in the
decision that it will render after trial. So there is a chance, there is a strong possibility, that the
defendant who is ordered to give support pendente lite will later on prevail after a trial on the merits. So
while the court may provisionally order him to give support pendente lite, the court in its decision may
finally issue an order saying that he is not bound to give support to the applicant.

What happens if this situation arises? Cannot the defendant, before the court implements the
provisional remedy of support pendente lite, ask the plaintiff to file a bond, just like in other provisional
remedies? Like in attachment there is an attachment bond, an injunction bond, a replevin bond, a
receivership bond. Cannot the defendant insist that before the order directing him to give support
pendente lite could be carried out, that the applicant should file a bond to answer for damages, which
the defendant may later on suffer? This again a peculiarity of this provisional remedy. There is no bond
required before a support pendente lite could be carried out. It is really unlike the other provisional
remedies.

So what protection does the defendant have if the court will not require the filling of a bond
before the court will issue the order or will implement this provisional remedy. Well the Rules talk about
other remedies which may not be really effective, that is, which may not be as effective as the
requirement for the posting of a bond before a provisional remedy is carried out by the court. One of
the remedies given in the Rules is for the defendant to run after the person who is ordered to be the
one who is supposed to give support. Or he can ask the beneficiary himself to refund the money which is
not really practical. There is the greater possibility that if the beneficiary has received support pendente
lite during the pendency of the case, the beneficiary would have spent all the sums given to him during
the pendency of the case. But nonetheless, you should take note that in all provisional remedies except
support pendente lite, there is a requirement for the posting of a bond before the provisional remedy
could be carried out or implemented.

Comment:

Remedies of party who was erroneously compelled to give support;

1. Apply for an order for such reimbursement by the recipient on motion in the trial court in the same
case, UNLESS such restitution is already included in the judgment; or

2. Failing therein, file a separate action for reimbursement against the person legally obliged to give
support.

xxx ________________________________________ xxx _________________________________xxx

521
 COMPARATIVE CHART

Preliminary Receivership
Preliminary Injunction/ Support
Attachment P.M.I. Replevin Pendente Lite

1. To have the
property of the
adverse party
attached as security 1. To place the
for the satisfaction property
of judgment that 1. To require a
subject of an
party or a court,
may be recovered in action or
agency or a
cases falling under proceeding
person to
Sec. 1 Rule 57. under the 1. To compel
refrain from 1. To recover
control of a adverse party to
doing, a possession of
PURPOSE 2. To enable the third party for provide support
particular act or personal
court to acquire its while action is
acts or to property.
jurisdiction over the preservation pending in court.
require the
action by the actual and
performance of
or constructive administration
a particular act
seizure of property pendente lite
or acts
in those instances or as an aid to
where personal execution
service of summons
on the creditor
cannot be effected.
Personal
Property
SUBJECT Personal and Real Particular act/ Personal and Money or other
capable of
MATTER Property acts Real Property forms of support
Manual
delivery
At any time
prior to
At the
satisfaction of At the
At the commencem
judgment. commenceme
commencement ent if the
WHEN At any stage prior Note: It may nt of the
of the action or action or at
APPLIED/ to the judgment or be availed action but
any time prior to any time
GRANTED final order. even after before the
the entry of prior to the
judgment answer is
judgment. judgment or
becomes final filed.
final order
under Sec. 41,
Rule 39.
HOW File affidavits File verified File verified File affidavits File verified
APPLIED and applicants application and application and application;
FOR bond applicants bond; if and applicants bond not

522
 application is applicants bond. required.
included in the bond;
initiatory pleading, application
the adverse party may also be
should be served included in
with summons initiatory
together with a pleading in
copy of the actions for
initiatory pleading foreclosure of
and the applicants mortgage.
bond.
Required:

Except, Great or
irreparable injury
would Not required.
REQUIREME Not required.
result/extreme May be
NT OF A May be issued ex Required Required
urgency and issued ex
HEARING parte.
applicant will parte.
suffer grave
injustice and
irreparable injury.
(Sec. 5, Rule 58)
Court where
action is
Only the court pending, the
where the action is CA or the SC
pending; Lower even if action Court of
Courts where
court, CA, or SC is pending in origin and
action is
provided action is the lower Only the appellate
pending, the CA
WHO MAY pending in the court. court where court. (See
or the SC even if
GRANT same court which Appellate the action is Ramos vs.
action is pending
issues the court may pending CA, L-
in the lower
injunction. Also allow 31897, June
court
with application 30, 1972)
Sandiganbayan and for
CTA. receivership
to be decided
by the court.
REQUISITE Sufficient cause Applicant is Applicant has Applicant is Affidavits,
FOR of action entitled to the relief interest in the the owner of depositions
GRANTING demanded. property or the property or other
APPLICATIO Case is covered fund, subject claimed or is documents
523
 N by Sec. 1 Rule 57; Act/s complained matter of the entitled to the should
of would work action or possession of show, at
No other injustice to the proceeding; the same. least
sufficient security applicant if not provisionall
for the claim enjoined; and Property or Property is y that the
exists; and funds is in wrongfully applicant is
Acts sought to be danger of detained by entitled to
Amount due to enjoined probably being lost or the adverse receive
applicant or value violates applicants removed or party; and support.
of the property he rights respecting materially
is entitled to the subject of the injured; Property is
recover is equal to action. wrongfully
the sum which the Appointment detained by
order of Threatened injury of receiver is the adverse
attachment is incapable of the most party; and
granted. pecuniary convenient
estimation. and feasible Property is
means of not distrained
preserving, or taken for a
administering tax
or disposing assessment or
of the a fine
property in pursuant to
litigation. law.
When third-party When third
claimant makes party
an affidavit of claimant
his right to the makes an
possession affidavit of
thereof, and his title to the
serves such property or
WHEN affidavit to the his right to
PROPERTY sheriff and a the Money or
IS CLAIMED copy thereof to possession other forms
BY THIRD the attaching thereof, and of support
PERSON party, the sheriff serve such
shall not be affidavit to
bound to keep the sheriff
the property and a copy
unless the thereof to the
attaching party attaching
files a bond party, the
approved by the sheriff shall

524
 court to not be bound
indemnify the to keep the
third party property
claimant in the under
sum NOT LESS replevin
THAN THE unless the
VALUE OF applicant files
THE a bond
PROPERTY approved by
levied upon. the court to
Claim for indemnify the
damages for the third party
taking or claimant in a
keeping the sum NOT
property must be LESS THAN
filed within 120 THE VALUE
days from filing of the
of the bond. property
levied upon.
Claim for
damages for
the taking and
keeping the
property must
be filed
within 120
days from
filing of the
bond.
Bond executed Bond
to the adverse executed to
party in the the adverse
amount fixed by party in
the court to double the
cover the costs value of the
BOND
which may be Same with property or No bond
REQUIREME Same with P.A.
adjudged to the P.A. the return of required.
NT
adverse party the property
and all damages to the adverse
that he may party if such
sustain by reason return be
of the granting of adjudged and
provisional for the
525
 remedy prayed payment to
for, if the court the adverse
shall finally party of such
adjudged that the sum as he
applicant was may recover
not entitled from the
thereto. applicant of
the action.
DISCHAR By counter-bond: Party against whom the provisional remedy is availed of Not
GE OF may move for the discharge of the provisional remedy granted by filing a applicable.
REMEDY counterbond in an amount equal to that fixed by the court to the value of the
property if with respect to a particular property to secure the payment of any
judgment that the adverse party may recover in the action.
Filing of counter-
bond made only
upon showing that
the issuance or
continuance thereof 2 Bond
would cause Requirement Amount of
irreparable damage the counter-
Cash deposit may to the party or 1. Bond filed bond should
be made in lieu of person enjoined by the also be
the counter-bond. while the applicant applicant; double the
can be fully value of the
compensated for 2. Bond filed property
such damages as he by a receiver.
may suffer; counter-
bond alone will not
suffice to discharge
the injunction.
Other grounds:
Appointment
Improper or
was obtained
irregular issuance Insufficiency of the
without
or enforcement or application.
sufficient
insufficiency of
cause.
bond.
DAMAGES IN When
Owner of the property attached must file, before trial or before
CASE judgment or
perfection of appeal or before judgment becomes executory, an
APPLICANT final order
application for damages.
FOR ANY OF finds the
Party who availed of provisional remedy and his surety or sureties
THE person which
must be notified, showing right to damages and amount thereof.
PROVISIONA has been
Damages awarded only after proper hearing; included in judgment of
L REMEDIES providing
526
NOT the main case. support
ENTITLED pendente lite
THERETO OR If judgment of appellate court is favorable to the party against whom not liable
FOR ANY provisional remedy was effected: therefor.
IRREGULARI
TY IN THE Application must be filed with the appellate court before the 1. Court shall
PROCUREME judgment of the appellate court becomes executory; order the
NT OF Appellate court may allow application to be heard and decided by the recipient to
PROVISIONA trial court; return the
L REMEDY. If bond or deposit given by the party availing of the provisional amounts
remedy be insufficient or fail to satisfy the award already
Adverse party may recover damages in the same action. received with
interest from
the dates of
actual
payment.

2. Recipient
may obtain
reimburseme
nt from the
person
legally
obliged to
give support
(separate
action must
be filed for
the purpose.

3. It recipient
fails to
reimburse the
amount,
person who
provided the
same may
seek
reimburseme
nt from the
person
legally
obliged to

527
 give the
support
(separate
action must
be filed for
the purpose)

IMMEDIATELY
EXECUTORY
NO YES YES NO YES

RULE 7
Writ of Kalikasan

SECTION 1.Nature of the Writ. The writ is a remedy available to a natural or juridical
person, entity authorized by law, people's organization, non-governmental organization, or any public
interest group accredited by or registered with any government agency, on behalf of persons whose
constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an
unlawful act or omission of a public official or employee, or private individual or entity, involving
environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in
two or more cities or provinces.
SECTION 2.Contents of the Petition. The verified petition shall contain the following:

(a)The personal circumstances of the petitioner;

(b)The name and personal circumstances of the respondent or if the name and personal
circumstances are unknown and uncertain, the respondent may be described by
an assumed appellation;

(c)The environmental law, rule or regulation violated or threatened to be violated, the

act or omission complained of, and the environmental damage of such

528
 magnitude as to prejudice the life, health or property of inhabitants in two or
more cities or provinces.

(d)All relevant and material evidence consisting of the affidavits of witnesses,

documentary evidence, scientific or other expert studies, and if possible, object
evidence;

(e)The certification of petitioner under oath that: (1) petitioner has not commenced any
action or filed any claim involving the same issues in any court, tribunal or
quasi-judicial agency, and no such other action or claim is pending therein; (2)
if there is such other pending action or claim, a complete statement of its
present status; (3) if petitioner should learn that the same or similar action or
claim has been filed or is pending, petitioner shall report to the court that fact
within five (5) days therefrom; and

(f)The reliefs prayed for which may include a prayer for the issuance of a
TEPO. DETACa

SECTION 3.Where to File. The petition shall be filed with the Supreme Court or with any
of the stations of the Court of Appeals.
SECTION 4.No Docket Fees. The petitioner shall be exempt from the payment of docket
fees.
SECTION 5.Issuance of the Writ. Within three (3) days from the date of filing of the
petition, if the petition is sufficient in form and substance, the court shall give an order: (a) issuing the
writ; and (b) requiring the respondent to file a verified return as provided in Section 8 of this Rule.
The clerk of court shall forthwith issue the writ under the seal of the court including the issuance of a
cease and desist order and other temporary reliefs effective until further order.
SECTION 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.
SECTION 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.
SECTION 8.Return of Respondent; Contents. Within a non-extendible period of ten (10)
days after service of the writ, the respondent shall file a verified return which shall contain all
defenses to show that respondent did not violate or threaten to violate, or allow the violation of any
environmental law, rule or regulation or commit any act resulting to environmental damage of such
magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
All defenses not raised in the return shall be deemed waived.
The return shall include affidavits of witnesses, documentary evidence, scientific or other
expert studies, and if possible, object evidence, in support of the defense of the respondent.
A general denial of allegations in the petition shall be considered as an admission thereof.
SECTION 9.Prohibited Pleadings and Motions. The following pleadings and motions are
prohibited:

529
 (a)Motion to dismiss;

(b)Motion for extension of time to file return;

(c)Motion for postponement;

(d)Motion for a bill of particulars;

(e)Counterclaim or cross-claim;

(f)Third-party complaint;

(g)Reply; and THIECD

(h)Motion to declare respondent in default.

SECTION 10.Effect of Failure to File Return. In case the respondent fails to file a return,
the court shall proceed to hear the petition ex parte.
SECTION 11.Hearing. Upon receipt of the return of the respondent, the court may call a
preliminary conference to simplify the issues, determine the possibility of obtaining stipulations or
admissions from the parties, and set the petition for hearing.
The hearing including the preliminary conference shall not extend beyond sixty (60) days and
shall be given the same priority as petitions for the writs of habeas corpus, amparo and habeas data.
SECTION 12.Discovery Measures. A party may file a verified motion for the following
reliefs:

(a)Ocular Inspection; order The motion must show that an ocular inspection order
is necessary to establish the magnitude of the violation or the threat as to
prejudice the life, health or property of inhabitants in two or more cities or
provinces. It shall state in detail the place or places to be inspected. It shall be
supported by affidavits of witnesses having personal knowledge of the
violation or threatened violation of environmental law.

After hearing, the court may order any person in possession or control of a designated
land or other property to permit entry for the purpose of inspecting or
photographing the property or any relevant object or operation thereon.

The order shall specify the person or persons authorized to make the inspection and the
date, time, place and manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties.

(b)Production or inspection of documents or things; order The motion must show

that a production order is necessary to establish the magnitude of the violation
or the threat as to prejudice the life, health or property of inhabitants in two or
more cities or provinces.

530
 After hearing, the court may order any person in possession, custody or control of any
designated documents, papers, books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or electronic form, which constitute or
contain evidence relevant to the petition or the return, to produce and permit
their inspection, copying or photographing by or on behalf of the
movant. TAIESD

The production order shall specify the person or persons authorized to make the
production and the date, time, place and manner of making the inspection or
production and may prescribe other conditions to protect the constitutional
rights of all parties.

SECTION 13.Contempt. The court may after hearing punish the respondent who refuses
or unduly delays the filing of a return, or who makes a false return, or any person who disobeys or
resists a lawful process or order of the court for indirect contempt under Rule 71 of the Rules of
Court.
SECTION 14.Submission of Case for Decision; Filing of Memoranda. After hearing, the
court shall issue an order submitting the case for decision. The court may require the filing of
memoranda and if possible, in its electronic form, within a non-extendible period of thirty (30) days
from the date the petition is submitted for decision.
SECTION 15.Judgment. Within sixty (60) days from the time the petition is submitted for
decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:

(a)Directing respondent to permanently cease and desist from committing acts or

neglecting the performance of a duty in violation of environmental laws
resulting in environmental destruction or damage;

(b)Directing the respondent public official, government agency, private person or entity
to protect, preserve, rehabilitate or restore the environment;

(c)Directing the respondent public official, government agency, private person or entity
to monitor strict compliance with the decision and orders of the court;

(d)Directing the respondent public official, government agency, or private person or

entity to make periodic reports on the execution of the final judgment; and

(e)Such other reliefs which relate to the right of the people to a balanced and healthful
ecology or to the protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual petitioners. aEcDTC

SECTION 16.Appeal. Within fifteen (15) days from the date of notice of the adverse
judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under
Rule 45 of the Rules of Court. The appeal may raise questions of fact.
SECTION 17.Institution of Separate Actions. The filing of a petition for the issuance of
the writ ofkalikasan shall not preclude the filing of separate civil, criminal or administrative actions.

531
 ANNOTATION TO THE WRIT OF AMPARO

The Writ of Amparo. The nature and time-tested role of amparo has shown that it is an effective and
inexpensive instrument for the protection of constitutional rights. 1 Amparo, literally "to protect,"
originated in Mexico and spread throughout the Western Hemisphere where it has gradually evolved into
various forms, depending on the particular needs of each country. 2 It started as a protection against acts
or omissions of public authorities in violation of constitutional rights. Later, however, the writ evolved for
several purposes: 3

(1) For the protection of personal freedom, equivalent to the habeas corpus writ
(called amparo libertad);

(2) For the judicial review of the constitutionality statutes (called amparo contra leyes);

(3) For the judicial review of the constitutionality and legality of a judicial decision
(called amparo casacion); DTEIaC

(4) For the judicial review of administrative actions (called amparo administrativo);
and

(5) For the protection of peasants' rights derived from the agrarian reform process
(called amparo agrario).

The writ of amparo has been constitutionally adopted by Latin American countries, except Cuba, to
protect against human rights abuses especially during the time they were governed by military juntas.
Generally, these countries adopted the writ to provide for a remedy to protect the whole range of
constitutional rights, including socio-economic rights.

In the Philippines, the Constitution does not explicitly provide for the writ of amparo. However, several
of the amparoprotections are available under our Constitution. Thus, pursuant to Article VIII, Section 1
of the 1987 Philippine Constitution, the definition of judicial power was expanded to include "the duty of
the courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." The
second clause, otherwise known as the Grave Abuse Clause, accords the same general protection to
human rights given by the amparo contra leyes, amparo casacion and amparo administrativo.

Amparo contra leyes, amparo casacion and amparo administrativo are also recognized in form by the
1987 Philippine Constitution. Specifically, under Article VIII, Section 5, the Supreme Court has explicit
review powers over judicial decisions akin to amparo casacion. To wit, Section 5 (2) provides that the
Supreme Court shall have power to "[r]eview, 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." 4 And in
paragraph (a) of Section 5 (2) it is also explicitly provided that the Supreme Court shall have, like amparo
contra leyes, the power to review ". . .[a]ll 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." 5

532
Amparo libertad is comparable to the remedy of habeas corpus. Our Rules of Court has adopted the old
English rule on the writ of habeas corpus to protect the right to liberty of individuals. There are also
constitutional provisions recognizing habeas corpus, i.e. Article III, Sections 13 and 15; 6 Article VII,
Section 18; 7 and Article VIII, Section 5, Paragraph 1. 8

The Rules of Court provide the procedure to protect constitutional rights. Rule 65 embodies the Grave
Abuse Clause, while Rule 102 governs petition for habeas corpus. Notably, the various socio-economic
rights granted by the Constitution are enforced by specific provisions of the Rules of Court, such as the
rules on injunction, prohibition, etc. TADIHE

The 1987 Constitution enhanced the protection of human rights by giving the Supreme Court the power to
"[p]romulgate rules concerning the protection and enforcement of constitutional rights. . ." 9 This rule-
making power unique to the present Constitution, is the result of our experience under the dark years of
the martial law regime. Heretofore, the protection of constitutional rights was principally lodged with
Congress through the enactment of laws and their implementing rules and regulation. The 1987
Constitution, however, gave the the Supreme Court the additional power to promulgate rules to protect
and enforce rights guaranteed by the fundamental law of the land.

In light of the prevalence of extralegal killing and enforced disappearances, the Supreme Court resolved
to exercise for the first time its power to promulgate rules to protect our people's constitutional rights. Its
Committee on Revision of the Rules of Court agreed that the writ of amparo should not be as
comprehensive and all-encompassing as the ones found in some American countries, especially Mexico.
These nations are understandably more advanced in their laws as well as in their procedures with respect
to the scope of this extraordinary writ. The Committee decided that in our jurisdiction, this writ
of amparo should be allowed to evolve through time and jurisprudence and through substantive laws as
they may be promulgated by Congress.

The highlights of the proposed Rule, section by section, are as follows:

SEC. 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.

Philippine Version. Since the writ of amparo is still undefined under our Constitution and Rules of Court,
Section 1 enumerates the constitutional rights protected by the writ, i.e., only the right to life, liberty and
security of persons. In other jurisdictions, the writ protects all constitutional rights. The reason for
limiting the coverage of its protection only to the right to life, liberty and security is that other
constitutional rights of our people are already enforced through different remedies.

Be that as it may, the Philippine amparo encapsulates a broader coverage. Whereas in other jurisdictions
the writ covers only actual violations, the Philippine version is more protective of the right to life, liberty
and security in the sense that it covers both actual and threatened violations of such rights. Further, unlike
other writs of amparo that provide protection only against unlawful acts or omissions of public officials

533
or employees, our writ covers violations committed by private individuals or entities. "Entities" refer to
artificial persons, as they are also capable of perpetrating the act or omission.DaESIC

The writ covers extralegal killings and enforced disappearances or threats thereof. "Extralegal
killings" 10 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. 11 On the other hand, "enforced
disappearances" 12 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.

SEC. 2. Who May File. The petition may be filed by the aggrieved party or by any
qualified person or entity in the following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of
the aggrieved party;

(b) 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

(c) Any concerned citizen, organization, association or institution, if there is no known

member of the immediate family or relative of the aggrieved party.

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.

Who May File. This section provides the order which must be followed by those who can sue for the writ.
It is necessary for the orderly administration of justice. First, the right to sue belongs to the person whose
right to life, liberty and security is being threatened by an unlawful act or omission of a public official or
employee or of a private individual or entity (the aggrieved party). However, in cases where the
whereabouts of the aggrieved party is unknown, the petition may be filed by qualified persons or entities
enumerated in the Rule (the authorized party). A similar order of priority of those who can sue is
provided in our rules implementing the law on violence against women and children in conflict with the
law. ICacDE

The reason for establishing an order is to prevent the indiscriminate and groundless filing of petitions
far amparo which may even prejudice the right to life, liberty or security of the aggrieved party. For
instance, the immediate family may be nearing the point of successfully negotiating with the respondent
for the release of the aggrieved party. An untimely resort to the writ by a non-member of the family may
endanger the life of the aggrieved party.

The Committee is aware that there may also be instances wherein the qualified members of the immediate
family or relatives of the aggrieved party might be threatened from filing the petition. As the right to life,
534
liberty and security of a person is at stake, this section shall not preclude the filing by those mentioned in
paragraph (c) when authorized by those mentioned in paragraphs (a) or (b) when circumstances require.

SEC. 3. Where to File. The petition may be filed on any day and at any time with
the Regional Trial Court of the place where the threat, act or omission was committed
or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the
Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in
the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writ shall be
returnable before such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it
may be returnable before such court or any justice thereof, or to any Regional Trial
Court of the place where the threat, act or omission was committed or any of its
elements occurred.

When issued by the Supreme Court or any of its justices, it may be returnable before
such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals
or any of their justices, or to any Regional Trial Court of the place where the threat, act
or omission was committed or any of its elements occurred.

Day and Time of Filing. Due to the extraordinary nature of the writ which protects the mother of all rights
the right to life the petition may be filed on any day, including Saturdays, Sundays and holidays;
and at any time, from morning until evening.

Courts Where Petition May Be Filed. This section is basically similar to the Rule on petitions for the wait
of habeas corpus. It is, however, different because it includes the Sandiganbayan for the reason that
public officials and employees will be respondents in amparo petitions. It will be noted that
the amparo petition has to be filed with the Regional Trial Court where the act or omission was
committed or where any of its elements occurred. The intent is to prevent the filing of the petition in some
far-flung area to harass the respondent. Moreover, allowing the amparo petition to be filed in any
Regional Trial Court may prejudice the effective dispensation of justice, as in most cases, the witnesses
and the evidence are located within the jurisdiction of the Regional Trial Court where the act or omission
was committed. SEAHcT

Designation. Originally, the draft Rule required the petition to be filed in the RTC that had "jurisdiction"
over the offense. However, the Committee felt that the use of the word "jurisdiction" might be construed
as vesting new jurisdiction in our courts, an act that can only be done by Congress. The use of the word
"jurisdiction" was discontinued, for the Rule merely establishes a procedure to enforce the right to life,
liberty or security of a person and, undoubtedly the Court has the power to promulgate procedural rules to
govern proceedings in our courts without disturbing their jurisdiction.

SEC. 4. No Docket Fees. The petitioner shall be exempted from the payment of the
docket and other lawful fees when filing the petition. The court, justice or judge shall
docket the petition and act upon it immediately.

535
Liberalized Docket Fees. The Committee exempted petitioners from payment of docket and other lawful
fees in filing anamparo petition, for this extraordinary writ involves the protection of the right to life,
liberty and security of a person. The enforcement of these sacrosanct rights should not be frustrated by
lack of finances.

SEC. 5. Contents of Petition. The petition shall be signed and verified and shall
allege the following:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat,
act or omission, or, if the name is unknow n or uncertain, the respondent may be
described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened
with violation by an unlawful act or omission of the respondent, and how such threat or
violation is committed with the attendant circumstances detailed in supporting
affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances,
and addresses of the investigating authority or individuals, as well as the manner and
conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for the
threat, act or omission; and

(f) The relief prayed for. CTSAaH

The petition may include a general prayer for other just and equitable reliefs.

Contents of the Petition. The petition should be verified to enhance the truthfulness of its allegations and
to prevent groundless suits.

Paragraphs (a) and (b) are necessary to identify the petitioner and the respondent. The respondent may be
given an assumed appellation such as "John Doe," as long as he or she is particularly described
(descriptio personae). Paragraph (c) requires the petitioner to allege the cause of action in as complete a
manner a possible. The requirement of affidavit was added, and it can be used as the direct testimony of
the affiant. Affidavits can facilitate the resolution of the petition, consistent with the summary nature of
the proceedings. Paragraph (d) is necessary to determine whether the act or omission of the respondent
satisfies the standard of conduct set by this Rule. Paragraph (e) is intended to prevent the premature use, if
not misuse, of the writ for a fishing expedition.

SEC. 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or
judge shall immediately order the issuance of the writ if on its face it ought to issue.
The clerk of court shall issue the writ under the seal of the court; or in case of urgent
necessity, the justice or the judge may issue the writ in his or her own hand, and may
deputize any officer or person to serve it.

536
 The writ shall also set the date and time for summary hearing of the petition which
shall not be later than seven (7) days from the date of its issuance.

Issuance. The writ isissued as a matter of course when on the face of the petition it ought to issue. The
writ will require respondent to file his return, which is the comment or answer to the petition. If the
petitioner is able to prove his cause of action after the hearing, the privilege of the writ of amparo shall be
granted, i.e., the court will grant the petitioner his appropriate reliefs.

The provision requires that the writ should set the date of hearing of the petition to expedite its resolution.
The amparoproceedings enjoy priority and cannot be unreasonably delayed.

SEC. 7. Penalty for Refusing to Issue or Serve the Writ. A clerk of court who refuses
to issue the writ after its allowance, or a deputized person who refuses to serve the
same, shall be punished by the court, justice or judge for contempt without prejudice to
other disciplinary actions. TaCSAD

Penalties. The provision is a modified version of a similar provision in Rule 102, governing petitions for
a writ of habeas corpus.

SEC. 8. How the Writ is Served. The writ shall be served upon the respondent by a
judicial officer or by a person deputized by the court, justice or judge who shall retain a
copy on which to make a return of service. In case the writ cannot be served personally
on the respondent, the rules of substituted service shall apply.

Manner of Service. The writ should be served against the respondent, preferably in person. If personal
service cannot be made, the rules on substituted service shall apply. This will avoid the situation where
the respondent would be conveniently assigned on a "secret mission to frustrate personal service.

SEC. 9. Return; Contents. Within seventy-two (72) hours after service of the writ,
the respondent shall file a verified written return together with supporting affidavits
which shall, among other things, contain the following:

(a) The lawful defenses to show that the respondent did not violate or threaten with
violation the right to life, liberty and security of the aggrieved party, through any act or
omission;

(b) The steps or actions taken by the respondent to determine the fate or whereabouts of
the aggrieved party and the person or persons responsible for the threat, act or
omission;

(c) All relevant information in the possession of the respondent pertaining to the threat,
act or omission against the aggrieved party; and

(d) If the respondent is a public official or employee, the return shall further state the
actions that have been or will still be taken;

(i) to verify the identity of the aggrieved party;

537
 (ii) to recover and preserve evidence related to the death or disappearance of
the person identified in the petition which may aid in the prosecution of the
person or persons responsible; cCSDaI

(iii) to identify witnesses and obtain statements from them concerning the death
or disappearance;

(iv) to determine the cause, manner, location and time of death or

disappearance as well as any pattern or practice that may have brought about
the death or disappearance;

(v) to identify and apprehend the person or persons involved in the death or
disappearance; and

(vi) to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and
the prosecution of the case.

A general denial of the allegations in the petition shall not be allowed.

Contents of the Return. The section requires a detailed return. The detailed return is important, for it will
help determine whether the respondent fulfilled the standard of conduct required by the Rule. It will also
avoid the ineffectiveness of the writ of habeas corpus, where often the respondent makes a simple denial
in the return that he or she has custody over the missing person, and the petition is dismissed. The
requirements under paragraph (d) are based on United Nations standards. 13

No General Denial. No general denial is allowed. The policy is to require revelation of all evidence
relevant to the resolution of the petition. A litigation is not a game of guile but a search for truth, which
alone is the basis of justice.

SEC. 10. Defenses Not Pleaded Deemed Waived. All defenses shall be raised in the
return, otherwise, they shall be deemed waived.

Waiver. This section is in consonance with the summary nature of the proceedings and to prevent its
delay. cHaDIA

SEC. 11. Prohibited Pleadings and Motions. The following pleadings and motions
are prohibited:

(a) Motion to dismiss;

(b) Motion for extension of time to file return, opposition, affidavit, position paper and
other pleadings;

(c) Dilatory motion for postponement;

(d) Motion for a bill of particulars;

538
 (e) Counterclaim or cross-claim;

(f) Third-party complaint;

(g) Reply;

(h) Motion to declare respondent in default;

(i) Intervention;

(j) Memorandum;

(k) Motion for reconsideration of interlocutory orders or interim relief orders; and

(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

Prohibited Pleadings. The enumerated pleadings and motions are prohibited, so that the proceedings in
the hearing shall be expedited. The Committee noted that since the right to life, liberty and security of a
person is at stake, the proceedings should not be delayed.

This section is similar to that found in the Rule on Violence Against Women and Children in Conflict
with the Law (VAWC). 14 However, unlike in VAWC, this Rule allows the filing of motions for new trial
and petitions for relief from judgment. The Committee decided that the denial of these remedies may
jeopardize the rights of the aggrieved party in certain instances and should not be countenanced.

No Motion to Dismiss. The filing of a motion to dismiss even on the ground of lack of jurisdiction over
the subject matter and the parties is proscribed. The reason is to avoid undue delay. The grounds of a
motion to dismiss should be included in the return and resolved by the court, using its reasonable
discretion as to the time and merit of the motion. aHECST

SEC. 12. Effect of Failure to File Return. In case the respondent fails to file a return,
the court, justice or judge shall proceed to hear the petition ex parte.

Ex Parte Hearing. The Committee decided that the hearing should not be delayed by the failure of the
respondent to file a return, otherwise the right to life, liberty and security of a person would be easily
frustrated.

SEC. 13. Summary Hearing. The hearing on the petition shall be summary.
However, the court, justice or judge may call for a preliminary conference to simplify
the issues and determine the possibility of obtaining stipulations and admissions from
the parties.

The hearing shall be from day to day until completed and given the same priority as
petitions for habeas corpus.

Summary Nature. The amparo hearing is summary in nature and held from day to day until completed,
for time cannot stand still when life, liberty or security is at stake. Be that as it may, the court, justice or

539
judge, using reasonable discretion, may conduct a preliminary conference, if such conference will aid in
the speedy disposition of the petition:

SEC. 14. Interim Reliefs. Upon filing of the petition or at any time before final
judgment, the court, justice or judge may grant any of the following reliefs:

Interim Reliefs. The interim reliefs available to the parties are distinct features of the writ of amparo.
Some of these reliefs can be given immediately after the filing of the petition motu proprio or at any time
before final judgment.

(a) Temporary Protection Order. The court, justice or judge, upon motion or motu
proprio, may order that the petitioner or the aggrieved party and any member of the
immediate family be protected in a government agency or by an accredited person or
private institution capable of keeping and securing their safety. If the petitioner is an
organization, association or institution referred to in Section 3 (c) of this Rule, the
protection may be extended to the officers concerned.

The Supreme Court shall accredit the persons and private institutions that shall extend
temporary protection to the petitioner or the aggrieved party and any member of the
immediate family, in accordance with guidelines which it shall issue. HASTCa

The accredited persons and private institutions shall comply with the rules and
conditions that may be imposed by the court, justice or judge.

Temporary Protection Order. The grant of a temporary protection order to the petitioner or the aggrieved
party and any member of the immediate family is essential because their lives and safety may be at higher
risk once they file theamparo petition.

The temporary protection order and witness protection order are distinguishable from the inspection order
and production order in that there is no need for verification of these motions. Moreover, unlike the latter,
the temporary protection order and witness protection order may be issued motu proprio or ex parte,
without need of a hearing in view of their urgent necessity.

To make the temporary protection order as broad and as effective as possible, the Committee decided to
include not only government agencies, but also accredited persons and private institutions. For reasons of
their own, some aggrieved persons refuse to be protected by government agencies; hence, the need to add
persons and private institutions. To ensure their capability, the Supreme Court shall accredit these persons
and private institutions.

(b) Inspection Order. The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a designated land or other
property, to permit entry for the purpose of inspecting, measuring, surveying, or
photographing the property or any relevant object or operation thereon.

540
 The motion shall state in detail the place or places to be inspected. It shall be supported
by affidavits or testimonies of witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature
of the information, the court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition.

The movant must show that the inspection order is necessary to establish the right of
the aggrieved party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the
inspection and the date, time, place and manner of making the inspection and may
prescribe other conditions to protect the constitutional rights of all parties. The order
shall expire five (5) days after the date of its issuance, unless extended for justifiable
reasons. IcSEAH

Inspection Order. The sensitive nature of an inspection order requires that it shall be the subject of a
motion and shall be duly heard. It may be availed of by both the petitioner and the respondent. To prevent
its misuse, the Rule requires that the motion also state in sufficient detail the place or places to be
inspected. It should also be under oath and should have supporting affidavits. The inspection order shall
specify the persons authorized to make the inspection as well as the date, time, place and manner of
making the inspection. Other conditions may be imposed to protect the rights of the parties. The order has
a limited lifetime of five days, but can be extended under justifiable circumstances.

If the court, justice or judge gravely abuses his or her discretion in issuing the inspection order, as when it
will compromise national security, the aggrieved party is not precluded for filing a petition
for certiorari with the Supreme Court, which, under the Constitution, may not be deprived of
its certiorari jurisdiction.

(c) Production Order. The court, justice or judge, upon verified motion and after
due heating, may order any person in possession, custody or control of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain evidence relevant to
the petition or the return, to produce and permit their inspection, copying or
photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged
nature of the information, in which case the court, justice or judge may conduct a
hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional
rights of all the parties.

Production Order. Like the inspection order, the production order is available to both the petitioner and
respondent and, considering its sensitive nature, is only granted upon motion and after hearing. The
phrase "objects in digitized or electronic form" was added to cover electronic evidence, since the
documents involved may be stored in digital files.

541
 (d) Witness Protection Order. The court, justice or judge, upon motion or motu
proprio, may refer the witnesses to the Department of Justice for admission to the
Witness Protection, Security Land Benefit Program, pursuant to Republic Act No.
6981.

The court, justice or judge may also refer the witnesses to other government agencies,
or to accredited persons or private institutions capable of keeping and securing their
safety. ESHAcI

Witness Protection Order. The witness protection order may be issued upon motion or motu proprio. The
witness may be referred to the DOJ pursuant to Republic Act No. 6981. If the witness cannot be
accommodated by the DOJ or the witness refuses the protection of the DOJ, the court, justice or judge
may refer the witness to another government agency or to an accredited person or private institution.

SEC. 15. Availability of Interim Reliefs to Respondent. Upon verified motion of the
respondent and after due hearing, the court, justice or judge may issue an inspection
order or production order under paragraphs (b) and (c) of the preceding section.

A motion for inspection order under this section shall be supported by affidavits or
testimonies of witnesses having personal knowledge of the defenses of the respondent.

Interim Reliefs of Respondent. This section enumerates the interim reliefs that may be availed of by the
respondent, which are the inspection and production orders.

The interim reliefs will ensure fairness in the proceedings, since there may be instances in which the
respondents would need to avail themselves of these reliefs to protect their rights or to prove their
defenses, i.e., when they allege that the aggrieved party is located elsewhere, or when vital documents
proving their defenses are in the possession of other persons.

SEC. 16. Contempt. The court, justice or judge may order the respondent who
refuses to make a return, or who makes a false return, or any person who otherwise
disobeys or resists a lawful process or order of the court, to be punished for contempt.
The contemnor may be imprisoned or imposed a fine.

Contempt. The power to cite for contempt is an inherent power of a court to compel obedience to its
orders and to preserve the integrity of the judiciary. A finding of contempt of court may result from a
refusal to make a return; or, if one is filed, it is false and tantamount to not making a return; disobedience
to a lawful order; and resistance to a lawful process. A fine of an imprisonment may be imposed on a
person found guilty of contempt of court in accordance with the Rules of Court.

SEC. 17. Burden of Proof and Standard of Diligence Required. The parties shall
establish their claims by substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligence
as required by applicable laws, rules and regulations was observed in the performance
of duty. DTcHaA

542
 The respondent who is a public official or employee must prove that extraordinary
diligence as required by applicable laws, rules and regulations was observed in the
performance of duty.

The respondent public official or employee cannot invoke the presumption that official
duty has been regularly performed to evade responsibility or liability.

Diligence Standard. The distinction is made between a private and a public respondent to highlight the
difference in the diligence requirement for a public official or employee. Public officials or employees are
charged with a higher standard of conduct because it is their legal duty to obey the Constitution,
especially its provisions protecting the right to life, liberty and security. The denial of the presumption
that official duty has been regularly performed is in accord with current jurisprudence on custodial
interrogation and search warrant cases.

SEC. 18. Judgment. The court shall render judgment within ten (10) days from the
time the petition is submitted for decision. If the allegations in the petition are proven
by substantial evidence, the court shall grant the privilege of the writ and such reliefs as
may be proper and appropriate; otherwise, the privilege shall be denied.

Speedy Judgment. The court, justice or judge is obliged to render judgment within ten (10) days after
submission of the petition for decision. The short period is demanded by the extraordinary nature of the
writ.

SEC. 19. Appeal. Any party may appeal from the final judgment or order to the
Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the
adverse judgment.

The appeal shall be given the same priority as habeas corpus cases.

Appeal. The provision allows an appeal from final judgments or orders through Rule 45. The Committee
considered Rule 41 as a mode of appeal, but a consensus was reached that Rule 45 would best serve the
nature of the writ of amparo. The Rule 45 appeal here, however, is different, because it allows questions
not only of law but also of fact to be raised. The Committee felt that an amparo proceeding essentially
involves a determination of facts considering that its subject is extralegal killings or enforced
disappearances, hence, a review of errors of fact should be allowed. The disposition of appeals dealing
with amparo cases shall be prioritized like habeas corpus cases. DEcSaI

SEC. 20. Archiving and Revival of Cases. The court shall not dismiss the petition,
but shall archive it, if upon its determination it cannot proceed for a valid cause such as
the failure of petitioner or witnesses to appear due to threats on their lives.

A periodic review of the archived cases shall be made by the amparo court that
shall, motu proprio or upon motion by any party, order their revival when ready for
farther proceedings. The petition shall be dismissed with prejudice, upon failure to

543
 prosecute the case after the lapse of two (2) years from notice to the petitioner of the
order archiving the case.

The clerks of court shall submit to the Office of the Court Administrator a consolidated
list of archived cases under this Rule, not later than the first week of January of every
year.

Liberalized Rule on Dismissal. The rule on dismissal due to failure to prosecute is liberalized. If
petitioners cannot proceed to prove their allegations for a justifiable reason like the existence of a threat to
their lives or the lives of their witnesses, the court will not dismiss the petition but will archive it. The
parties will be notified before a case is archived, as the order has to be justified by a good reason, to be
determined after hearing. Archiving can be ordered only during the pendency of the case. The case may
be revived within two years from its archiving. After two years, it may be dismissed for failure to
prosecute. Since it is the petitioner who would be prejudiced by its final dismissal, the two-year
prescriptive period is reckoned from the date of notice to the petitioners of the order of archiving. Two
years is deemed a reasonable time for the aggrieved parties to prosecute their petition.

SEC. 21. Institution of Separate Actions. This Rule shall not preclude the filing of
separate criminal, civil or administrative actions.

Prerogative Writ. The writ of amparo partakes of the nature of a prerogative writ. It is not a criminal,
civil, or administrative suit. Hence, it does not suspend the filing of criminal, civil or administrative
actions.

Originally, the Committee included a provision allowing a claim for damages. It dropped the provision
for fear that such a claim would unduly delay the proceeding, considering the possibility of counterclaims
and cross-claims being set up. Delay would defeat the summary nature of the amparo proceeding. It was
decided, that the aggrieved party should instead file in a claim in a proper civil action.

Similarly, the amparo proceeding is not criminal in nature and will not determine the criminal guilt of the
respondent. However, if the evidence so warrants, the amparo court may refer the case to the Department
of Justice for criminal prosecution.

SEC. 22. Effect of Filing of a Criminal Action. When a criminal action has been
commenced, no separate petition for the writ shall be filed. The reliefs under the writ
shall be available by motion in the criminal case.TaDAIS

The procedure under this Rule shall govern the disposition of the reliefs available under
the writ of amparo.

Effect of Criminal Proceeding. This section contemplates the situation where a criminal action has
already been filed, in which case the commencement of the amparo action is barred. This is to avoid the
difficulties that may be encountered when the amparo action is allowed to proceed separately from the
criminal action. Two courts trying essentially the same subject may issue conflicting orders.

The amparo reliefs, however, are made available to the aggrieved party through motion in the court where
the criminal case is pending. The disposition of such reliefs shall continue to be governed by this Rule.

544
 SEC. 23. Consolidation. When a criminal action is filed subsequent to the filing of a
petition for the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for
a writ of amparo, the latter shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to the
disposition of the reliefs in the petition.

Consolidation. In case a petition for the writ of amparo is filed prior to the institution of a criminal action,
or prior to a criminal action and a separate civil action, the petition shall be consolidated with the criminal
action. This Rule shall continue to govern the disposition of the reliefs for amparo after consolidation.

SEC. 24. Substantive Rights. This Rule shall not diminish, increase or modify
substantive rights recognized and protected by the Constitution.

No Diminution, Increase or Modification of Substantive Rights. The rule-making power of the Supreme
Court has been expanded in Article VIII, Section 5 (5) of the 1987 Constitution. It provides that the
Supreme Court shall have the power to "[p]romulgate rules concerning the protection and enforcement of
constitutional rights [which] shall not diminish, increase, or modify substantive, rights. . ." 15 caIDSH

The Supreme Court clarified what constitutes procedural rules in Fabian v. Desierto, viz:

[T]he test whether the rule really regulates procedure, that is, the judicial process for enforcing rights and
duties recognized by substantive law and for justly administering remedy and redress for a disregard or
infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such
as the right to appeal, it may be classified as substantive matter; but if it operates as a means of
implementing an existing right, then the rule deals merely with procedure.16

SEC. 25. Suppletory Application of the Rules of Court. The Rules of Court shall
apply suppletorily insofar as it is not inconsistent with this Rule.

Suppletory Application of the Rules of Court. The Rules of Court shall supplement the Rule on amparo as
far as it is applicable. This new Rule will prevail and will not be affected by prior inconsistent rules,
resolutions, regulations or circulars of the Supreme Court.

SEC. 26. Applicability to Pending Cases. This Rule shall govern cases involving
extralegal killings and enforced disappearances or threats thereof pending in the trial
and appellate courts.

Remedial Nature of the Writ. Since the writ is remedial in nature, it is applicable to pending cases of
extralegal killings and enforced disappearances or threats thereof, both in the trial and the appellate
courts.

SEC. 27. Effectivity. This Rule shall take effect on October 24, 2007, following its
publication in three (3) newspapers of general circulation.

545
Date of Effectivity. The last section marks the date of effectivity of the Rule and its publication
requirement. The Committee deemed it proper that the birth of the Rule in the Philippines should coincide
with our celebration of United Nations Day, to manifest a strong affirmation of our commitment towards
the internationalization of human rights.

THE RULE ON THE WRIT OF HABEAS DATA

SECTION 1.Habeas Data. The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of
data or information regarding the person, family, home and correspondence of the aggrieved party.

SECTION 2.Who May File. Any aggrieved party may file a petition for the writ of habeas data.
However, in cases of extralegal killings and enforced disappearances, the petition may be filed by:

(a)Any member of the immediate family of the aggrieved party, namely: the spouse,
children and parents; or

(b)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.

SECTION 3.Where to File. The petition may be filed with the Regional Trial Court where the
petitioner or respondent resides, or that which has jurisdiction over the place where the data or
information is gathered, collected or stored, at the option of the petitioner.

The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan
when the action concerns public data files of government offices.

SECTION 4.Where Returnable; Enforceable. When the writ is issued by a Regional Trial Court or any
judge thereof, it shall be returnable before such court or judge.

When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable
before such court or any justice thereof, or to any Regional Trial Court of the place where the petitioner or
respondent resides, or that which has jurisdiction over the place where the data or information is gathered,
collected or stored.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any
justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any
Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction
over the place where the data or information is gathered, collected or stored.

The writ of habeas data shall be enforceable anywhere in the Philippines.

SECTION 5.Docket Fees. No docket and other lawful fees shall be required from an indigent
petitioner. The petition of the indigent shall be docketed and acted upon immediately, without prejudice

546
to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the
petition.

SECTION 6.Petition. A verified written petition for a writ of habeas data should contain:

(a)The personal circumstances of the petitioner and the respondent;

(b)The manner the right to privacy is violated or threatened and how it affects the right
to life, liberty or security of the aggrieved party;

(c)The actions and recourses taken by the petitioner to secure the data or information;

(d)The location of the files, registers or databases, the government office, and the
person in charge, in possession or in control of the data or information, if
known;

(e)The reliefs prayed for, which may include the updating, rectification, suppression or
destruction of the database or information or files kept by the respondent.

In case of threats, the relief may include a prayer for an order enjoining the act
complained of; and

(f)Such other relevant reliefs as are just and equitable.

SECTION 7.Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the
writ under the seal of the court and cause it to be served within three (3) days from its issuance; or, in case
of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize
any officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not be later than
ten (10) work days from the date of its issuance.

SECTION 8.Penalty for Refusing to Issue or Serve the Writ. A clerk of court who refuses to issue the
writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the
court, justice or judge for contempt without prejudice to other disciplinary actions.

SECTION 9.How the Writ is Served. The writ shall be served upon the respondent by the officer or
person deputized by the court, justice or judge who shall retain a copy on which to make a return of
service. In case the writ cannot be served personally on the respondent, the rules on substituted service
shall apply.

SECTION 10.Return; Contents. The respondent shall file a verified written return together with
supporting affidavits within five (5) work days from service of the writ, which period may be reasonably
extended by the Court for justifiable reasons. The return shall, among other things, contain the following:

547
 (a)The lawful defenses such as national security, state secrets, privileged
communication, confidentiality of the source of information of media and
others;

(b)In case of respondent in charge, in possession or in control of the data or information

subject of the petition:

(i)a disclosure of the data or information about the petitioner, the nature of such
data or information, and the purpose for its collection;

(ii)the steps or actions taken by the respondent to ensure the security and
confidentiality of the data or information; and

(iii)the currency and accuracy of the data or information held; and

(c)Other allegations relevant to the resolution of the proceeding.

A general denial of the allegations in the petition shall not be allowed.

SECTION 11.Contempt. The court, justice or judge may punish with imprisonment or fine a
respondent who commits contempt by making a false return, or refusing to make a return; or any person
who otherwise disobeys or resists a lawful process or order of the court.

SECTION 12.When Defenses may be Heard in Chambers. A hearing in chambers may be conducted
where the respondent invokes the defense that the release of the data or information in question shall
compromise national security or state secrets, or when the data or information cannot be divulged to the
public due to its nature or privileged character.

SECTION 13.Prohibited Pleadings and Motions. The following pleadings and motions are prohibited:

(a)Motion to dismiss;

(b)Motion for extension of time to file opposition, affidavit, position paper and other
pleadings;

(c)Dilatory motion for postponement;

(d)Motion for a bill of particulars;

(e)Counterclaim or cross-claim;

(f)Third-party complaint;

(g)Reply;

(h)Motion to declare respondent in default;

(i)Intervention;
548
 (j)Memorandum;

(k)Motion for reconsideration of interlocutory orders or interim relief orders; and

(l)Petition for certiorari, mandamus or prohibition against any interlocutory order.

SECTION 14.Return; Filing. In case the respondent fails to file a return, the court, justice or judge
shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant
unless the court in its discretion requires the petitioner to submit evidence.

SECTION 15.Summary Hearing. The hearing on the petition shall be summary. However, the court,
justice or judge may call for a preliminary conference to simplify the issues and determine the possibility
of obtaining stipulations and admissions from the parties.

SECTION 16.Judgment. The court shall render judgment within ten (10) days from the time the
petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the
court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the
erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the
privilege of the writ shall be denied.

Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated
by the court, justice or judge within five (5) work days.

SECTION 17.Return of Service. The officer who executed the final judgment shall, within three (3)
days from its enforcement, make a verified return to the court. The return shall contain a full statement of
the proceedings under the writ and a complete inventory of the database or information, or documents and
articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent.

The officer shall state in the return how the judgment was enforced and complied with by the respondent,
as well as all objections of the parties regarding the manner and regularity of the service of the writ.

SECTION 18.Hearing on Officer's Return. The court shall set the return for hearing with due notice to
the parties and act accordingly.

SECTION 19.Appeal. Any party may appeal from the judgment or final order to the Supreme Court
under Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) work days from the date of notice of the judgment or final order.

The appeal shall be given the same priority as habeas corpus and amparo cases.

SECTION 20.Institution of Separate Actions. The filing of a petition for the writ of habeas data shall
not preclude the filing of separate criminal, civil or administrative actions.

SECTION 21.Consolidation. When a criminal action is filed subsequent to the filing of a petition for
the writ, the latter shall be consolidated with the criminal action.
549
When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas
data, the petition shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in
the petition.

SECTION 22.Effect of Filing of a Criminal Action. When a criminal action has been commenced, no
separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved
party by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writ
of habeas data.

SECTION 23.Substantive Rights. This Rule shall not diminish, increase or modify substantive rights.

SECTION 24.Suppletory Application of the Rules of Court. The Rules of Court shall apply
suppletorily insofar as it is not inconsistent with this Rule.

SECTION 25.Effectivity. This Rule shall take effect on February 2, 2008 following its publication in
three (3) newspapers of general circulation.

Published in The Philippine Star on January 25, 2008.

Republic Act No. 9285 April 2, 2004

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

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

CHAPTER 1 - GENERAL PROVISIONS

SECTION 1. Title. - This act shall be known as the "Alternative Dispute Resolution Act of 2004."

SEC. 2. Declaration of Policy. - it is hereby declared the policy of the State to actively promote party
autonomy in the resolution of disputes or the freedom of the party to make their own arrangements to
resolve their disputes. Towards this end, the State shall encourage and actively promote the use of
Alternative Dispute Resolution (ADR) as an important means to achieve speedy and impartial justice and
declog court dockets. As such, the State shall provide means for the use of ADR as an efficient tool and
an alternative procedure for the resolution of appropriate cases. Likewise, the State shall enlist active
private sector participation in the settlement of disputes through ADR. This Act shall be without
prejudice to the adoption by the Supreme Court of any ADR system, such as mediation, conciliation,
arbitration, or any combination thereof as a means of achieving speedy and efficient means of resolving
cases pending before all courts in the Philippines which shall be governed by such rules as the Supreme
Court may approve from time to time.

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SEC. 3. Definition of Terms. - For purposes of this Act, the term:

(a) "Alternative Dispute Resolution System" means any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of
a government agency, as defined in this Act, in which a neutral third party participates to assist
in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral
evaluation, mini-trial, or any combination thereof;

(b) "ADR Provider" means institutions or persons accredited as mediator, conciliator, arbitrator,
neutral evaluator, or any person exercising similar functions in any Alternative Dispute
Resolution system. This is without prejudice to the rights of the parties to choose nonaccredited
individuals to act as mediator, conciliator, arbitrator, or neutral evaluator of their dispute.

Whenever reffered to in this Act, the term "ADR practitioners" shall refer to individuals acting as
mediator, conciliator, arbitrator or neutral evaluator;

(c) "Authenticate" means to sign, execute or adopt a symbol, or encrypt a record in whole or in
part, intended to identity the authenticating party and to adopt, accept or establish the
authenticity of a record or term;

(d) "Arbitration" means a voluntary dispute resolution process in which one or more arbitrators,
appointed in accordance with the agreement of the parties, or rules promulgated pursuant to
this Act, resolve a dispute by rendering an award;

(e) "Arbitrator" means the person appointed to render an award, alone or with others, in a
dispute that is the subject of an arbitration agreement;

(f) "Award" means any partial or final decision by an arbitrator in resolving the issue in a
controversy;

(g) "Commercial Arbitration" An arbitration is "commercial if it covers matter arising from all
relationships of a commercial nature, whether contractual or not;

(h) "Confidential information" means any information, relative to the subject of mediation or
arbitration, expressly intended by the source not to be disclosed, or obtained under
circumstances that would create a reasonable expectation on behalf of the source that the
information shall not be disclosed. It shall include (1) communication, oral or written, made in a
dispute resolution proceedings, including any memoranda, notes or work product of the neutral
party or non-party participant, as defined in this Act; (2) an oral or written statement made or
which occurs during mediation or for purposes of considering, conducting, participating,
initiating, continuing of reconvening mediation or retaining a mediator; and (3) pleadings,
motions manifestations, witness statements, reports filed or submitted in an arbitration or for
expert evaluation;

(i) "Convention Award" means a foreign arbitral award made in a Convention State;

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(j) "Convention State" means a State that is a member of the New York Convention;

(k) "Court" as referred to in Article 6 of the Model Law shall mean a Regional Trial Court;

(l) "Court-Annexed Mediation" means any mediation process conducted under the auspices of
the court, after such court has acquired jurisdiction of the dispute;

(m) "Court-Referred Mediation" means mediation ordered by a court to be conducted in

accordance with the Agreement of the Parties when as action is prematurely commenced in
violation of such agreement;

(n) "Early Neutral Evaluation" means an ADR process wherein parties and their lawyers are
brought together early in a pre-trial phase to present summaries of their cases and receive a
nonbinding assessment by an experienced, neutral person, with expertise in the subject in the
substance of the dispute;

(o) "Government Agency" means any government entity, office or officer, other than a court,
that is vested by law with quasi-judicial power to resolve or adjudicate dispute involving the
government, its agencies and instrumentalities, or private persons;

(p) "International Party" shall mean an entity whose place of business is outside the Philippines.
It shall not include a domestic subsidiary of such international party or a coventurer in a joint
venture with a party which has its place of business in the Philippines.

The term foreigner arbitrator shall mean a person who is not a national of the Philippines.

(q) "Mediation" means a voluntary process in which a mediator, selected by the disputing
parties, facilitates communication and negotiation, and assist the parties in reaching a voluntary
agreement regarding a dispute.

(r) "Mediator" means a person who conducts mediation;

(s) "Mediation Party" means a person who participates in a mediation and whose consent is
necessary to resolve the dispute;

(t) "Mediation-Arbitration" or Med-Arb is a step dispute resolution process involving both

mediation and arbitration;

(u) "Mini-Trial" means a structured dispute resolution method in which the merits of a case are
argued before a panel comprising senior decision makers with or without the presence of a
neutral third person after which the parties seek a negotiated settlement;

(v) "Model Law" means the Model Law on International Commercial Arbitration adopted by the
United Nations Commission on International Trade Law on 21 June 1985;

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 (w) "New York Convention" means the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards approved in 1958 and ratified by the Philippine Senate
under Senate Resolution No. 71;

(x) "Non-Convention Award" means a foreign arbitral award made in a State which is not a
Convention State;

(y) "Non-Convention State" means a State that is not a member of the New York Convention.

(z) "Non-Party Participant" means a person, other than a party or mediator, who participates in
a mediation proceeding as a witness, resource person or expert;

(aa) "Proceeding" means a judicial, administrative, or other adjudicative process, including

related pre-hearing motions, conferences and discovery;

(bb) "Record" means an information written on a tangible medium or stored in an electronic or

other similar medium, retrievable form; and

(cc) "Roster" means a list of persons qualified to provide ADR services as neutrals or to serve as
arbitrators.

SEC. 4. Electronic Signatures in Global and E-Commerce Act. - The provisions of the Electronic
Signatures in Global and E-Commerce Act, and its implementing Rules and Regulations shall apply to
proceeding contemplated in this Act.

SEC. 5. Liability of ADR Provider and Practitioner. - The ADR providers and practitioners shall have the
same civil liability for the Acts done in the performance of then duties as that of public officers as
provided in Section 38 (1), Chapter 9, Book of the Administrative Code of 1987.

SEC. 6. Exception to the Application of this Act. - The provisions of this Act shall not apply to resolution
or settlement of the following: (a) labor disputes covered by Presidential Decree No. 442, otherwise
known as the Labor Code of the Philippines, as amended and its Implementing Rules and Regulations;
(b) the civil status of persons; (c) the validity of a marriage; (d) any ground for legal separation; (e) the
jurisdiction of courts; (f) future legitime; (g) criminal liability; and (h) those which by law cannot be
compromised.

CHAPTER 2 - MEDIATION

SEC. 7. Scope. - The provisions of this Chapter shall cover voluntary mediation, whether ad hoc or
institutional, other than court-annexed. The term "mediation' shall include conciliation.

SEC. 8. Application and Interpretation. - In applying construing the provisions of this Chapter,
consideration must be given to the need to promote candor or parties and mediators through
confidentiality of the mediation process, the policy of fostering prompt, economical, and amicable
resolution of disputes in accordance with the principles of integrity of determination by the parties, and
the policy that the decision-making authority in the mediation process rests with the parties.

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SEC. 9. Confidentiality of Information. - Information obtained through mediation proceedings shall be
subject to the following principles and guidelines:

(a) Information obtained through mediation shall be privileged and confidential.

(b) A party, a mediator, or a nonparty participant may refuse to disclose and may prevent any
other person from disclosing a mediation communication.

(c) Confidential Information shall not be subject to discovery and shall be inadmissible if any
adversarial proceeding, whether judicial or quasi-judicial, However, evidence or information that
is otherwise admissible or subject to discovery does not become inadmissible or protected from
discovery solely by reason of its use in a mediation.

(d) In such an adversarial proceeding, the following persons involved or previously involved in a
mediation may not be compelled to disclose confidential information obtained during
mediation: (1) the parties to the dispute; (2) the mediator or mediators; (3) the counsel for the
parties; (4) the nonparty participants; (5) any persons hired or engaged in connection with the
mediation as secretary, stenographer, clerk or assistant; and (6) any other person who obtains
or possesses confidential information by reason of his/her profession.

(e) The protections of this Act shall continue to apply even of a mediator is found to have failed
to act impartially.

(f) a mediator may not be called to testify to provide information gathered in mediation. A
mediator who is wrongfully subpoenaed shall be reimbursed the full cost of his attorney's fees
and related expenses.

SEC. 10. Waiver of Confidentiality. - A privilege arising from the confidentiality of information may be
waived in a record, or orally during a proceeding by the mediator and the mediation parties.

A privilege arising from the confidentiality of information may likewise be waived by a nonparty
participant if the information is provided by such nonparty participant.

A person who discloses confidential information shall be precluded from asserting the privilege under
Section 9 of this Chapter to bar disclosure of the rest of the information necessary to a complete
understanding of the previously disclosed information. If a person suffers loss or damages in a judicial
proceeding against the person who made the disclosure.

A person who discloses or makes a representation about a mediation is preclude from asserting the
privilege under Section 9, to the extent that the communication prejudices another person in the
proceeding and it is necessary for the person prejudiced to respond to the representation of disclosure.

SEC. 11. Exceptions to Privilege. -

(a) There is no privilege against disclosure under Section 9 if mediation communication is:

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 (1) in an agreement evidenced by a record authenticated by all parties to the
agreement;

(2) available to the public or that is made during a session of a mediation which is open,
or is required by law to be open, to the public;

(3) a threat or statement of a plan to inflict bodily injury or commit a crime of violence;

(4) internationally used to plan a crime, attempt to commit, or commit a crime, or

conceal an ongoing crime or criminal activity;

(5) sought or offered to prove or disprove abuse, neglect, abandonment, or exploitation

in a proceeding in which a public agency is protecting the interest of an individual
protected by law; but this exception does not apply where a child protection matter is
referred to mediation by a court or a public agency participates in the child protection
mediation;

(6) sought or offered to prove or disprove a claim or complaint of professional

misconduct or malpractice filed against mediator in a proceeding; or

(7) sought or offered to prove or disprove a claim of complaint of professional

misconduct of malpractice filed against a party, nonparty participant, or representative
of a party based on conduct occurring during a mediation.

(b) There is no privilege under Section 9 if a court or administrative agency, finds, after a hearing
in camera, that the party seeking discovery of the proponent of the evidence has shown that the
evidence is not otherwise available, that there is a need for the evidence that substantially
outweighs the interest in protecting confidentiality, and the mediation communication is sought
or offered in:

(1) a court proceeding involving a crime or felony; or

(2) a proceeding to prove a claim or defense that under the law is sufficient to reform or
avoid a liability on a contract arising out of the mediation.

(c) A mediator may not be compelled to provide evidence of a mediation communication or

testify in such proceeding.

(d) If a mediation communication is not privileged under an exception in subsection (a) or (b),
only the portion of the communication necessary for the application of the exception for
nondisclosure may be admitted. The admission of particular evidence for the limited purpose of
an exception does not render that evidence, or any other mediation communication, admissible
for any other purpose.

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SEC. 12. Prohibited Mediator Reports. - A mediator may not make a report, assessment, evaluation,
recommendation, finding, or other communication regarding a mediation to a court or agency or other
authority that make a ruling on a dispute that is the subject of a mediation, except:

(a) Where the mediation occurred or has terminated, or where a settlement was reached.

(b) As permitted to be disclosed under Section 13 of this Chapter.

SEC. 13. Mediator's Disclosure and Conflict of Interest. - The mediation shall be guided by the following
operative principles:

(a) Before accepting a mediation, an individual who is requested to serve as a mediator shall:

(1) make an inquiry that is reasonable under the circumstances to determinate whether
there are any known facts that a reasonable individual would consider likely to affect
the impartiality of the mediator, including a financial or personal interest in the
outcome of the mediation and any existing or past relationship with a party or
foreseeable participant in the mediation; and

(2) disclosure to the mediation parties any such fact known or learned as soon as is
practical before accepting a mediation.

(b) If a mediation learns any fact described in paragraph (a) (1) of this section after accepting a
mediation, the mediator shall disclose it as soon as practicable.

At the request of a mediation party, an individual who is requested to serve as mediator shall disclose
his/her qualifications to mediate a dispute.

This Act does not require that a mediator shall have special qualifications by background or profession
unless the special qualifications of a mediator are required in the mediation agreement or by the
mediation parties.

SEC. 14. Participation in Mediation. - Except as otherwise provided in this Act, a party may designate a
lawyer or any other person to provide assistance in the mediation. A lawyer of this right shall be made in
writing by the party waiving it. A waiver of participation or legal representation may be rescinded at any
time.

SEC. 15. Place of Mediation. - The parties are free to agree on the place of mediation. Failing such
agreement, the place of mediation shall be any place convenient and appropriate to all parties.

SEC. 16. Effect of Agreement to Submit Dispute to Mediation Under Institutional Rules. - An agreement
to submit a dispute to mediation by any institution shall include an agreement to be bound by the
internal mediation and administrative policies of such institution. Further, an agreement to submit a
dispute to mediation under international mediation rule shall be deemed to include an agreement to
have such rules govern the mediation of the dispute and for the mediator, the parties, their respective
counsel, and nonparty participants to abide by such rules.

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In case of conflict between the institutional mediation rules and the provisions of this Act, the latter
shall prevail.

SEC. 17. Enforcement of Mediated Settlement Agreement. - The mediation shall be guided by the
following operative principles:

(a) A settlement agreement following successful mediation shall be prepared by the parties with
the assistance of their respective counsel, if any, and by the mediator.

The parties and their respective counsels shall endeavor to make the terms and condition
thereof complete and make adequate provisions for the contingency of breach to avoid
conflicting interpretations of the agreement.

(b) The parties and their respective counsels, if any, shall sign the settlement agreement. The
mediator shall certify that he/she explained the contents of the settlement agreement to the
parties in a language known to them.

(c) If the parties so desire, they may deposit such settlement agreement with the appropriate
Clerk of a Regional Trial Court of the place where one of the parties resides. Where there is a
need to enforce the settlement agreement, a petition may be filed by any of the parties with the
same court, in which case, the court shall proceed summarily to hear the petition, in accordance
with such rules of procedure as may be promulgated by the Supreme Court.

(d) The parties may agree in the settlement agreement that the mediator shall become a sole
arbitrator for the dispute and shall treat the settlement agreement as an arbitral award which
shall be subject to enforcement under Republic Act No. 876, otherwise known as the Arbitration
Law, notwithstanding the provisions of Executive Order No. 1008 for mediated dispute outside
of the CIAC.

CHAPTER 3 - OTHER ADR FORMS

SEC. 18. Referral of Dispute to other ADR Forms. - The parties may agree to refer one or more or all
issues arising in a dispute or during its pendency to other forms of ADR such as but not limited to (a) the
evaluation of a third person or (b) a mini-trial, (c) mediation-arbitration, or a combination thereof.

For purposes of this Act, the use of other ADR forms shall be governed by Chapter 2 of this Act except
where it is combined with arbitration in which case it shall likewise be governed by Chapter 5 of this Act.

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 approved on December 11, 1985, copy of
which is hereto attached as Appendix "A".

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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."

SEC. 21. Commercial Arbitration. - An arbitration is "commercial" if it covers matters arising from all
relationships of a commercial nature, whether contractual or not. Relationships of a transactions: any
trade transaction for the supply or exchange of goods or services; distribution agreements; construction
of works; commercial representation or agency; factoring; leasing, consulting; engineering; licensing;
investment; financing; banking; insurance; joint venture and other forms of industrial or business
cooperation; carriage of goods or passengers by air, sea, rail or road.

SEC. 22. Legal Representation in International Arbitration. - In international arbitration conducted in

the Philippines, a party may be presented by any person of his choice. Provided, that such
representative, unless admitted to the practice of law in the Philippines, shall not be authorized to
appear as counsel in any Philippine court, or any other quasi-judicial body whether or not such
appearance is in relation to the arbitration in which he appears.

SEC. 23. Confidential of Arbitration Proceedings. - The arbitration proceedings, including the records,
evidence and the arbitral award, shall be considered confidential and shall not be published except (1)
with the consent of the parties, or (2) for the limited purpose of disclosing to the court of relevant
documents in cases where resort to the court is allowed herein. Provided, however, that the court in
which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure
of documents or information containing secret processes, developments, research and other
information where it is shown that the applicant shall be materially prejudiced by an authorized
disclosure thereof.

SEC. 24. Referral to Arbitration. - A court before which an action is brought in a matter which is the
subject matter of an arbitration agreement shall, if at least one party so requests not later that the pre-
trial conference, or upon the request of both parties thereafter, refer the parties to arbitration unless it
finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

SEC. 25. Interpretation of the Act. - In interpreting the Act, the court shall have due regard to the policy
of the law in favor of arbitration. Where action is commenced by or against multiple parties, one or
more of whom are parties who are bound by the arbitration agreement although the civil action may
continue as to those who are not bound by such arbitration agreement.

SEC. 26. Meaning of "Appointing Authority.". - "Appointing Authority" as used in the Model Law shall
mean the person or institution named in the arbitration agreement as the appointing authority; or the
regular arbitration arbitration institution under whose rules the arbitration is agreed to be conducted.
Where the parties have agreed to submit their dispute to institutional arbitration rules, and unless they
have agreed to a different procedure, they shall be deemed to have agreed to procedure under such
arbitration rules for the selection and appointment of arbitrators. In ad hoc arbitration, the default
appointment of an arbitrator shall be made by the National President of the Integrated Bar of the
Philippines (IBP) or his duly authorized representative.

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SEC. 27. What Functions May be Performed by Appointing Authority. - The functions referred to in
Articles 11(3), 11(4), 13(3) and 14(1) of the Model Law shall be performed by the Appointing Authority,
unless the latter shall fail or refuse to act within thirty (30) days from receipt of the request in which
case the applicant may renew the application with the Court.

SEC. 28. Grant of Interim Measure of Protection. -

(a) It is not incompatible with an arbitration agreement for a party to request, before
constitution of the tribunal, from a Court an interim measure of protection and for the Court to
grant such measure. After constitution of the arbitral tribunal and during arbitral proceedings, a
request for an interim measure of protection or modification thereof, may be made with the
arbitral tribunal or to the extent that the arbitral tribunal has no power to act or is unable to act
effectively, the request may be made with the Court. The arbitral tribunal is deemed constituted
when the sole arbitrator or the third arbitrator who has been nominated, has accepted the
nomination and written communication of said nomination and acceptance has been received
by the party making request.

(b) The following rules on interim or provisional relief shall be observed:

(1) Any party may request that provision relief be granted against the adverse party:

(2) Such relief may be granted:

(i) to prevent irreparable loss or injury:

(ii) to provide security for the performance of any obligation;

(iii) to produce or preserve any evidence; or

(iv) to compel any other appropriate act or omission.

(3) The order granting provisional relief may be conditioned upon the provision of
security or any act or omission specified in the order.

(4) Interim or provisional relief is requested by written application transmitted by

reasonable means to the Court or arbitral tribunal as the case may be and the party
against whom the relief is sought, describing in appropriate detail the precise relief, the
party against whom the relief is requested, the grounds for the relief, and evidence
supporting the request.

(5) The order shall be binding upon the parties.

(6) Either party may apply with the Court for assistance in Implementing or enforcing an
interim measure ordered by an arbitral tribunal.

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 (7) A party who does not comply with the order shall be liable for all damages resulting
from noncompliance, including all expenses, and reasonable attorney's fees, paid in
obtaining the order's judicial enforcement.

SEC. 29. Further Authority for Arbitrator to Grant Interim Measure of Protection. - Unless otherwise
agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such
interim measures of protection as the arbitral tribunal may consider necessary in respect of the subject
matter of the dispute following the rules in Section 28, paragraph 2. Such interim measures may include
but shall not be limited to preliminary injuction directed against a party, appointment of receivers or
detention, preservation, inspection of property that is the subject of the dispute in arbitration. Either
party may apply with the Court for assistance in implementing or enforcing an interim measures ordered
by an arbitral tribunal.

SEC. 30. Place of Arbitration. - The parties are free to agree on the place of arbitration. Failing such
agreement, the place of arbitration shall be in Metro Manila, unless the arbitral tribunal, having regard
to the circumstances of the case, including the convenience of the parties shall decide on a different
place of arbitration.

The arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers
appropriate for consultation among its members, for hearing witnesses, experts, or the parties, or for
inspection of goods, other property or documents.

SEC. 31. Language of the Arbitration. - The parties are free to agree on the language or languages to be
used in the arbitral proceedings. Failing such agreement, the language to be used shall be English in
international arbitration, and English or Filipino for domestic arbitration, unless the arbitral tribunal shall
determine a different or another language or languages to be used in the proceedings. This agreement
or determination, unless otherwise specified therein, shall apply to any written statement by a party,
any hearing and any award, decision or other communication by the arbitral tribunal.

The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation
into the language or languages agreed upon by the parties or determined in accordance with paragraph
1 of this section.

CHAPTER 5 - DOMESTIC ARBITRATION

SEC. 32. Law Governing Domestic Arbitration. - Domestic arbitration shall continue to be governed by
Republic Act No. 876, otherwise known as "The Arbitration Law" as amended by this Chapter. The term
"domestic arbitration" as used herein shall mean an arbitration that is not international as defined in
Article (3) of the Model Law.

SEC. 33. Applicability to Domestic Arbitration. - Article 8, 10, 11, 12, 13, 14, 18 and 19 and 29 to 32 of
the Model Law and Section 22 to 31 of the preceding Chapter 4 shall apply to domestic arbitration.

CHAPTER 6 - ARBITRATION OF CONSTRUCTION DISPUTES

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SEC. 34. Arbitration of Construction Disputes: Governing Law. - The arbitration of construction disputes
shall be governed by Executive Order No. 1008, otherwise known as the Constitution Industry
Arbitration Law.

SEC. 35. Coverage of the Law. - Construction disputes which fall within the original and exclusive
jurisdiction of the Construction Industry Arbitration Commission (the "Commission") shall include those
between or among parties to, or who are otherwise bound by, an arbitration agreement, directly or by
reference whether such parties are project owner, contractor, subcontractor, quantity surveyor,
bondsman or issuer of an insurance policy in a construction project.

The Commission shall continue to exercise original and exclusive jurisdiction over construction disputes
although the arbitration is "commercial" pursuant to Section 21 of this Act.

SEC. 36. Authority to Act as Mediator or Arbitrator. - By written agreement of the parties to a dispute,
an arbitrator may act as mediator and a mediator may act as arbitrator. The parties may also agree in
writing that, following a successful mediation, the mediator shall issue the settlement agreement in the
form of an arbitral award.

SEC. 37. Appointment of Foreign Arbitrator. - The Construction Industry Arbitration Commission (CIAC)
shall promulgate rules to allow for the appointment of a foreign arbitrator or coarbitrator or chairman
of a tribunal a person who has not been previously accredited by CIAC: Provided, That:

(a) the dispute is a construction dispute in which one party is an international party

(b) the person to be appointed agreed to abide by the arbitration rules and policies of CIAC;

(c) he/she is either coarbitrator upon the nomination of the international party; or he/she is the
common choice of the two CIAC-accredited arbitrators first appointed one of whom was
nominated by the international party; and

(d) the foreign arbitrator shall be of different nationality from the international party.

SEC. 38. Applicability to Construction Arbitration. - The provisions of Sections 17 (d) of Chapter 2, and
Section 28 and 29 of this Act shall apply to arbitration of construction disputes covered by this Chapter.

SEC. 39. Court to Dismiss Case Involving a Construction Dispute. - A regional trial court which a
construction dispute is filed shall, upon becoming aware, not later than the pretrial conference, that the
parties had entered into an arbitration to be conducted by the CIAC, unless both parties, assisted by
their respective counsel, shall submit to the regional trial court a written agreement exclusive for the
Court, rather than the CIAC, to resolve the dispute.

CHAPTER 7 - JUDICIAL REVIEW OF ARBITRAL AWARDS

A. DOMESTIC AWARDS

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SEC. 40. Confirmation of Award. - The confirmation of a domestic arbitral award shall be governed by
Section 23 of R.A. 876.

A domestic arbitral award when confirmed shall be enforced in the same manner as final and executory
decisions of the Regional Trial Court.

The confirmation of a domestic award shall be made by the regional trial court in accordance with the
Rules of Procedure to be promulgated by the Supreme Court.

A CIAC arbitral award need not be confirmed by the regional trial court to be executory as provided
under E.O. No. 1008.

SEC. 41. Vacation Award. - A party to a domestic arbitration may question the arbitral award with the
appropriate regional trial court in accordance with the rules of procedure to be promulgated by the
Supreme Court only on those grounds enumerated in Section 25 of Republic Act No. 876. Any other
ground raised against a domestic arbitral award shall be disregarded by the regional trial court.

B. FOREIGN ARBITRAL AWARDS

SEC. 42. Application of the New York Convention. - The New York Convention shall govern the
recognition and enforcement of arbitral awards covered by the said Convention.

The recognition and enforcement of such arbitral awards shall be filled with regional trial court in
accordance with the rules of procedure to be promulgated by the Supreme Court. Said procedural rules
shall provide that the party relying on the award or applying for its enforcement shall file with the court
the original or authenticated copy of the award and the arbitration agreement. If the award or
agreement is not made in any of the official languages, the party shall supply a duly certified translation
thereof into any of such languages.

The applicant shall establish that the country in which foreign arbitration award was made is a party to
the New York Convention.

If the application for rejection or suspension of enforcement of an award has been made, the regional
trial court may, if it considers it proper, vacate its decision and may also, on the application of the party
claiming recognition or enforcement of the award, order the party to provide appropriate security.

SEC. 43. Recognition and Enforcement of Foreign Arbitral Awards Not Covered by the New York
Convention. - The recognition and enforcement of foreign arbitral awards not covered by the New York
Convention shall be done in accordance with procedural rules to be promulgated by the Supreme Court.
The Court may, grounds of comity and reciprocity, recognize and enforce a nonconvention award as a
convention award.

SEC. 44. Foreign Arbitral Award Not Foreign Judgment. - A foreign arbitral award when confirmed by a
court of a foreign country, shall be recognized and enforced as a foreign arbitral award and not a
judgment of a foreign court.

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A foreign arbitral award, when confirmed by the regional trial court, shall be enforced as a foreign
arbitral award and not as a judgment of a foreign court.

A foreign arbitral award, when confirmed by the regional trial court, shall be enforced in the same
manner as final and executory decisions of courts of law of the Philippines.

SEC. 45. Rejection of a Foreign Arbitral Award. - A party to a foreign arbitration proceeding may oppose
an application for recognition and enforcement of the arbitral award in accordance with the procedural
rules to be promulgated by the Supreme Court only on those grounds enumerated under Article V of the
New York Convention. Any other ground raised shall be disregarded by the regional trial court.

SEC. 46. Appeal from Court Decisions on Arbitral Awards. - A decision of the regional trial court
confirming, vacating, setting aside, modifying or correcting an arbitral award may be appealed to the
Court of Appeals in accordance with the rules of procedure to be promulgated by the Supreme Court.

The losing party who appeals from the judgment of the court confirming an arbitral award shall required
by the appealant court to post counterbond executed in favor of the prevailing party equal to the
amount of the award in accordance with the rules to be promulgated by the Supreme Court.

SEC. 47. Venue and Jurisdiction. - Proceedings for recognition and enforcement of an arbitration
agreement or for vacation, setting aside, correction or modification of an arbitral award, and any
application with a court for arbitration assistance and supervision shall be deemed as special
proceedings and shall be filled with the regional trial court (i) where arbitration proceedings are
conducted; (ii) where the asset to be attached or levied upon, or the act to be enjoined is located; (iii)
where any of the parties to the dispute resides or has his place of business; or (iv) in the National Judicial
Capital Region, at the option of the applicant.

SEC. 48. Notice of Proceeding to Parties. - In a special proceeding for recognition and enforcement of an
arbitral award, the Court shall send notice to the parties at their address of record in the arbitration, or
if any party cannot be served notice at such address, at such party's last known address. The notice shall
be sent at least fifteen (15) days before the date set for the initial hearing of the application.

CHAPTER 8 - MISCELLANEOUS PROVISIONS

SEC. 49. Office for Alternative Dispute Resolution. - There is hereby established the Office for
Alternative Dispute Resolution as an attached agency to the Department of Justice (DOJ) which shall
have a Secretariat to be headed by an executive director. The executive director shall be appointed by
the President of the Philippines.

The objective of the office are:

(a) to promote, develop and expand the use of ADR in the private and public sectors; and

To assist the government to monitor, study and evaluate the use by the public and the private sector of
ADR, and recommend to Congress needful statutory changes to develop. Strengthen and improve ADR
practices in accordance with world standards.

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SEC. 50. Powers and Functions of the Office for Alternative Dispute Resolution. - The Office for
Alternative Dispute Resolution shall have the following powers and functions:

(a) To formulate standards for the training of the ADR practitioners and service providers;

(b) To certify that such ADR practitioners and ADR service providers have undergone the
professional training provided by the office;

(c) To coordinate the development, implementation, monitoring, and evaluation of government

ADR programs;

(d) To charge fees for their services; and

(e) To perform such acts as may be necessary to carry into effect the provisions of this Act.

SEC. 51. Appropriations. - The amount necessary to carry out the provisions of this Act shall be included
in the General Appropriations Act of the year following its enactment into law and thereafter.

SEC. 52. Implementing Rules and Regulations (IRR). - Within one (1) month after the approval of this
Act, the secretary of justice shall convene a committee that shall formulate the appropriate rules and
regulations necessary for the implementation of this Act. The committee, composed of representatives
from:

(a) the Department of Justice;

(b) the Department of Trade and Industry;

(c) the Department of the Interior and Local Government;

(d) the president of the Integrated Bar of the Philippines;

(e) A representative from the arbitration profession; and

(f) A representative from the mediation profession; and

(g) A representative from the ADR organizations

shall within three (3) months after convening, submit the IRR to the Joint Congressional Oversight
Committee for review and approval. The Oversight Committee shall be composed of the chairman of the
Senate Committee on Justice and Human Rights, chairman of the House Committee on Justice, and one
(1) member each from the majority and minority of both Houses.

The Joint Oversight Committee shall become functus officio upon approval of the IRR.

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SEC. 53. Applicability of the Katarungan Pambarangay. - This Act shall not be interpreted to repeal,
amend or modify the jurisdiction of the Katarungan Pambarangay under Republic Act No. 7160,
otherwise known as the Local Government Code of 1991.

SEC. 54. Repealing Clause. - All laws, decrees, executive orders, rules and regulations which are
inconsistent with the provisions of this Act are hereby repealed, amended or modified accordingly.

SEC. 55. Separability Clause. - If for any reason or reasons, any portion or provision of this Act shall be
held unconstitutional or invalid, all other parts or provisions not affected shall thereby continue to
remain in full force and effect.

SEC. 56. Effectivity. - This act shall take effect fifteen days (15) after its publication in at least two (2)
national newspapers of general circulation.

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