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REMEDIAL LAW

I. General Principles

A. Concept of Remedial Law

The Rules of Court as a whole constitute the body of rules governing pleadings, practice and
procedure. As they do not originate from the legislature, they cannot be called laws in the strict
sense of the word. However, since they are promulgated by authority of law, they have the force
and effect of law if not in conflict with a positive law. The Rules are subordinate to statute, and
in case of conflict, the statute will prevail.

The concept of Remedial Law lies at the very core of procedural due process, which means a law
which hears before it condemns, which proceeds upon inquiry and renders judgment only after
trial, and contemplates an opportunity to be heard before judgment is rendered.

Remedial Law is that branch of law which prescribes the method of enforcing the rights for
obtaining redress for their invasion.

Remedial laws are implemented in our system of government through the pillars of the judicial
system, including the prosecutory service, our courts of justice and quasi judicial agencies.

We cannot separate remedial law from substantive law. Remedial law does not establish a right.
Substantive law establishes that right, but remedial law protects and enforces such right.

B. Substantive Law as Distinguished from Remedial Law

SUBSTANTIVE LAW is that part of the law which creates, defines and regulates rights
concerning life, liberty, or property, or the powers of agencies or instrumentalities for the
administration of public affairs. This is distinguished from REMEDIAL LAW which prescribes
the method of enforcing those rights and obligations created by substantive law for obtaining
redress for their invasion.

C. Rule-making Power of the Supreme Court

The SC has the constitutional power to promulgate rules concerning pleading, practice and
procedure (Sec 5(5), Art. VIII, Constitution). But this is not an absolute power, it is subject to
some limitations.

1. Limitations on the rule-making power of the Supreme Court

The following are imposed by the Constitution on the rule-making power of the SC:

a. The Rules shall provide a simplified and inexpensive procedure for the speedy disposition of
cases;
b. The Rules shall be uniform for courts of the same grade; and

c. The Rules shall not diminish, increase, or modify substantive rights (Sec. 5(5), Art. VIII,
Constitution). Only the legislature can do these acts, not the SC.

2. Power of the Supreme Court to amend and suspend procedural rules

The courts have the power to relax or suspend technical or procedural rules or to except a case
from their operation when compelling reasons so warrant or when the purpose of justice
requires it. What constitutes good and sufficient cause that would merit suspension of the rule is
discretionary upon the courts.

When a rule promulgated by the SC is not applied by the SC to a particular case, it is not a
situation where the SC violates its own rules. It is a situation where the SC has promulgated a
rule on that particular case only pro hac vice. This is the power of the SC to suspend the rules in
the interest of justice. The SC can even not apply a particular rule.

In a case where the action of the MTC was patently null and void, the SC took cognizance of a
petition for certiorari without it having to pass the RTC. The SC in this particular case did not
follow a rule. What is the justification of the court? Action has to be done immediately. Only the
SC can do that.

The SC has also sustained appeals filed beyond the reglementary period shown to be meritorious
and the failure to file on time was with a reason that will compel the court to recognize that
reason. The rules are not intended to be applied with pedantic rigor. The rules and technicalities
have to give way to the interest of substantial justice. So when there is a conflict between the
interest of justice and technicalities, the latter have to give way in order to give way to justice.

Reasons which would warrant the suspension of the Rules:

1. Existence of special or compelling circumstances;

2. the merits of the case;

3. a cause not entirely attributable to the fault or negligence of the party favored by the
suspension of rules;

4. lack of any showing that the review sought is merely frivolous and dilatory; and

5. the other party will not be unjustly prejudiced thereby.

Compliance with the rules is the general rule, and abandonment thereof should only be done in
the most exceptional circumstances.

Power to amend the rules. The SC has the power to amend, repeal or even establish new rules
for a more simplified and inexpensive process, and the speedy disposition of cases. 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 ROC.

The ROC are to be liberally construed in order to promote their objective of securing a just,
speedy, and inexpensive disposition of every action or proceeding.

D. Nature of Philippine Courts

Philippine courts are both courts of law and equity. Hence, both legal and equitable jurisdiction
is dispensed with in the same tribunal.

1. Meaning of a court

Referred to here is the court as a public office, an office under the judiciary. It is tasked with the
primary purpose of resolving controversies among individuals, and also tasked with enforcement
of the procedures for defending the State against disorder like in criminal prosecution.

A court itself does not actually physically exist. The courtroom does. A court exists because of
legal fiction.

2. Court as distinguished from a judge

It is a court which has jurisdiction over cases. A judge has no jurisdiction. While a court is an
office, the officer that presides over a court is called a judge. A judge is a physical actual being
while a court is a creation of law. A judge may die but a court remains.

3. Classification of Philippine courts

4. Courts of original and appellate jurisdiction

Original jurisdiction is where a case is filed first.

The MTC has original jurisdiction. Does the CA also have original jurisdiction? Yes. There are
cases which are filed in the CA for the first time. Does the SC also have original jurisdiction?
Yes.

Appellate jurisdiction is the authority to review, revise, reverse or modify decisions of a lower
court. The MTC has no appellate jurisdiction.

5. Courts of general and special jurisdiction

Courts normally have jurisdiction given to them by law. But there are some courts which even if
not specifically given could be within the jurisdiction of that court.
The RTC is a court of general jurisdiction. If there is no law which confers jurisdiction over a
subject matter to any particular court, it is now assumed automatically under BP 129 that it will
go to the RTC because it is a court of general jurisdiction.

The MTC, CA, and SC are not courts of general jurisdiction. They exercise a special
jurisdiction. They only exercise jurisdiction over subject matters conferred directly to them by
law.

6. Constitutional and statutory courts

Statutory courts are courts created by law, by statute or other specific laws other then the
fundamental law. Those laws are authorized by the Constitution. There is only 1 court created
directly by the Constitution, the SC.

The Sandiganbayan is not constitutional court because it is not directly created by the
constitution; it is a constitutionally-mandated court. As early as the 1973 Constitution directed an
order to create the Sandiganbayan.

7. Courts of law and equity

Philippine courts exercise 2 general types of jurisdiction; the legal and the equity jurisdiction.
That means that Philippine courts are not only courts of law but also courts of equity.

Courts of equity decide a case not in relation to a particular statutory provision. Courts of equity
decide a case on the basis of the natural concept of what is just and what is fair because human
beings have natural concepts of what is right and what is wrong even if we have not gone to
school.

There is one principle we have to remember. The courts are not authorized to apply the rules or
laws on equity if there is a specific statutory provision. Equity is not supposed to come in if there
is a law applicable to certain state of facts. No matter how harsh the law is, if there is a law, the
court will have to apply the law. If there is no law, that’s the time that courts go to the laws on
equity.

Reyes vs. Lim, August 11, 2003: This was about an agreement to sell a land. Actually it was a
conditional sale. The buyer gave a hefty down payment of P10 million because it involved a
parcel of land with a prime location in Pasay City. He noticed that the seller really had no
intention to go on with the sale. He filed alternatively an action to rescind or to annul the
contract. During the pendency of the case, he asked the court to require the defendant seller to
deposit in court the P10 million he already gave as down payment because he noticed that the
seller is engaged in some activities which made him to believe that the guy was squandering the
money he gave as earnest money. If the contract is annulled or rescinded, there is then an
obligation for the obligee to make restitution, and the buyer fears that there will be no more
money to return. The defendant said that the plaintiff in effect is asking for a provisional remedy
that is not found in the rules. The SC said there is a vacuum in the law, and there is a need to
protect the right of the plaintiff should he win. And so the court allowed a deposit as a
provisional remedy pro hac vice only on that particular case using its equity jurisdiction.

8. Principle of Judicial Hierarchy

This principle arises in case of concurrent jurisdiction. Meaning there are cases cognizable by 1
court and another court or courts authorized by law; there are several courts authorized by law to
take cognizance over a case. In petitions for a writ of amparo, there is concurrent jurisdiction
between the RTC, CA, SC and even the Sandiganbayan.

Our courts follow the so-called ladderized procedure. If you could file it in the lowest court,
then file it there first. You must have a compelling reason for filing it in a higher court than
in a lower court. This is judicial hierarchy, a general rule which may be disregarded sometimes.

9. Doctrine of non-interference or doctrine of judicial stability

A court cannot issue an order against a co-equal court. An RTC cannot enjoin the acts of another
RTC. This is to promote the doctrine of stability. This is also applied to certain quasi-judicial
agencies. The RTC cannot enjoin the SEC because they have equal ranks. Go to the CA by way
of Rule 43.

II. Jurisdiction

A. Jurisdiction over the parties

1. How jurisdiction over the plaintiff is acquired

An original plaintiff may sometimes become a defendant in the same case. And an original
defendant may become a plaintiff in the same case. For example, OP filed a claim against OD.
Then OD filed a counterclaim against OP. OD becomes a plaintiff in the counterclaim and OP
becomes a defendant.

The filing of the complaint by the plaintiff vests upon the court jurisdiction upon his person.

2. How jurisdiction over the defendant is acquired?

A true defendant is whom relief is directly sought against. A defendant in name only is the not a
true defendant. Therefore, you do not need jurisdiction over the person of every defendant in all
cases. You only need the jurisdiction over the person of the defendant when the action is in
personam. And this is mandatory. We did not say personal action, it is different from action in
personam.

In actions in rem and quasi in rem, technically there are no defendants although some persons
may be named. You only need jurisdiction over the thing or res, which is either a thing or a
status of a person.
An action in rem is an action against the whole world addressed to no one in particular. For
example, in a probate proceeding the heirs are mentioned because they have interests in the
estate but the court needs jurisdiction over the estate only. It is an action in rem.

An annulment of marriage or declaration of nullity is also an action in rem. The parties are only
incidental to the action. A cadastral case is also an action in rem.

An injunction and an action for unlawful detainer and for forcible entry are actions in personam.

An action involving the status of an individual is an action in rem. But there is an action about
the status of an individual which is not an action in rem but in personam- an action for
compulsory recognition of a child.

There are other actions called quasi in rem. There is a specific individual who is interested in a
property but it’s actually the property which is the focal point of the suit. For instance,
foreclosure of a mortgage, an action quasi in rem. A proceeding for preliminary attachment is a
proceeding quasi in rem. Accounting of funds is also quasi in rem.

These are jurisprudential examples coming from the Bar exams.

So when talking about jurisdiction over the person of the defendant, we are talking only of
actions in personam where such jurisdiction is mandatory.

When there is voluntary appearance, jurisdiction over the person of the defendant is acquired
even without service of summons or upon a summons invalidly served. It is found in Sec. 20
Rule 14. Master this!

Sec. 20 – The defendant’s voluntary appearance in the action shall be equivalent to service
of summons. The inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary appearance.

Voluntary appearance is equivalent to service of summons (1st sentence of Sec. 20).

What is the defendant’s 1st opportunity to question the court’s jurisdiction over his person?
Motion to dismiss on the ground of lack of jurisdiction over his person. Adding other grounds
to the motion to dismiss is not considered voluntary appearance as opposed to the old rule.
You can add as many defenses.

B. Jurisdiction over the subject matter

1. Meaning of jurisdiction over the subject matter

The subject matter refers to the class to which the case belongs. For example, forcible entry and
unlawful detainer; actions of incapable of pecuniary estimation; admiralty cases; these are
classes.
The Filing of a complaint vests jurisdiction upon the court with respect to the person of the
plaintiff.

Bar: the plaintiff was abroad, his counsel filed the complaint. The defendant moved to dismiss on
the ground that the court has no jurisdiction over the complainant because the is not in the
Philippines. Defendant is wrong: jurisdiction is not acquired through his personal presence in
court to file the complaint. Jurisdiction on his person is acquired by the filing of the complaint
in his name and under his authority. Jurisdiction was acquired by virtue of the complaint filed
in court.

2. Jurisdiction versus the exercise of jurisdiction

When the question speaks about jurisdiction vs. the exercise of jurisdiction, it means jurisdiction
over the subject matter.

Jurisdiction is the power or authority belonging to the court. When the court acts according to
such authority, that action in accordance with such authority is an exercise of jurisdiction. A
court has jurisdiction over an UD case; when it receives the complaint and acts in accordance
with such authority to take cognizance over such UD case, its action falls under the concept of
exercise of jurisdiction.

Jurisdiction is static, the exercise is active. To be valid, the exercise of jurisdiction must be based
on jurisdiction. An exercise of jurisdiction without jurisdiction is not a valid act. The court is
acting without jurisdiction.

3. Error of jurisdiction as distinguished from error of judgment

When the court is exercising jurisdiction without jurisdiction, there is an error called error of
jurisdiction. It is a grievous error; it strikes at the very action of the court. It is reviewable by
certiorari (Rule 65).

When the court has jurisdiction over the subject matter, and the manner of the exercise of that
jurisdiction has been found out to be erroneous, it is an error of judgment correctible by appeal
(Rule 45). It involves errors in the appreciation of the facts and evidences. It could ripen into a
valid judgment if not questioned in a proper proceeding like appeal because it is not a void
judgment. It needs to be questioned. If there is a remedy of appeal, do not use certiorari.

4. How jurisdiction is conferred and determined

Jurisdiction is conferred by law. It cannot be conferred by the agreement of the parties or of


the approval of the court. Good faith of the judge does not confer jurisdiction. Neither can
estoppel confer jurisdiction; it will only prevent you from questioning jurisdiction.

Jurisdiction is determined by the allegations in the complaint, not the title of the case.
Sometimes the title of the complaint and the allegations are in conflict. The allegations prevail.
Pay and vacate -> unlawful detainer (MTC)

Pay or vacate -> action for a sum of money (depends upon the amount)

Comply with the conditions of the lease and to vacate -> UD (MTC)

Comply or vacate -> specific performance (RTC)

UD: there is a need to demand to vacate

FE: no such need

Can the parties to a case agree for their convenience and for the convenience of the court that the
RTC will try a forcible entry case? No.

The court will not rely on the title of the complaint. It has to read the complaint and determine
the allegations on the complaint.

It is the plaintiff, in effect, that determines jurisdiction thru his allegations. The allegations of the
defendant will not determine jurisdiction.

If the amount of the claim is 1 million, jurisdiction will go to the RTC and the court cannot
dismiss it if in the course of the trial it was convincingly established that only 100,000 is due to
the plaintiff. In this case, the court will render judgment only for 100,000 in favor of the plaintiff,
but the court should not dismiss the complaint.

5. Doctrine of primary jurisdiction

There are cases which the court will not handle at first because jurisdiction belongs to an
administrative or quasi judicial agency. For example tenancy (DARAB), agrarian reform case
(DAR), rates for electricity (Energy Dept.)

6. Doctrine of adherence of jurisdiction (the doctrine of continuity of jurisdiction)

Once the court acquires jurisdiction by virtue of a valid complaint, that jurisdiction shall
continue up to the end of the case. Intervening facts will not deprive the courts of jurisdiction.

Suppose an action for a sum of money, 1 million, was filed in the RTC. During the trial of the
case it was convincingly established that the liability of the defendant was only 100, 000
cognizable at first instance by the MTC. Can the defendant move to dismiss on the ground of
lack of jurisdiction? No, the court already acquired jurisdiction by virtue of the allegations of a
valid complaint. Its jurisdiction will not be ousted by contrary evidence. The court should
continue with the case and render judgment for 100, 000. This is adherence of jurisdiction
doctrine.
Even the existence of a new law will not divest the court of jurisdiction already acquired unless
the law itself orders that such court be divested of jurisdiction.

There was this official of the government with a salary range of grade 27, he was sued in the
Sandiganbayan, and while the case was pending he resigned from office and said that the SB no
longer had jurisdiction over him in lieu of his resignation. He was wrong. Jurisdiction has
already attached and once attached it shall continue until the end of the proceedings by virtue of
the doctrine of adherence.

7. Objections to jurisdiction over the subject matter

The court may on its own initiative object to an erroneous jurisdiction and may ex mero motu
take cognizance of lack of jurisdiction at any point in the case and has a clearly recognized right
to determine its own jurisdiction. The court’s authority however is only to dismiss the complaint
and not to make any other order like forwarding the case to the proper court.

8. Effect of estoppel on objections to jurisdiction

Estoppel does not confer jurisdiction. It will only prevent you from questioning the lack of
jurisdiction. The ancient case of Tijam vs. Sibunghanoy is the perfect example of estoppel by
latches, as used in that case. One litigant in that case knew that the court has no jurisdiction over
the case beforehand; when the case was dragging 15 years and he realized he was losing the case
only then did he question the court’s jurisdiction. The SC said he was gambling on the results of
the litigation; estoppel by latches was born and he was precluded from questioning the
jurisdiction of the court. The jurisdiction of the court was left untouched. But estoppel is not the
GR, it should be applied only in cases strictly analogous to Tijam vs. Sibunghanoy. The rule still
is: the lack of jurisdiction can be questioned in any stage of the proceeding even for the first time
on appeal. This is the general rule established in Calimlim vs. Ramirez.

C. Jurisdiction over the issues

When is an issue created? 1. When a material allegation is specifically denied an issue is


created. Then the court has a reason for trial to determine which interpretation is right, to
determine who is telling the truth. A material allegation not specifically denied is deemed
admitted and there is no issue.

If the issue on a case is possession, the court has no jurisdiction to render judgment on
ownership. If the only issue is ownership without the parties talking about possession, the court
cannot motu proprio include possession in its judgment. To rule on possession would be to do so
without jurisdiction on the issue.

To have an issue, a denial must be specific. Memorize Sec. 10 of Rule 8.

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

If the provisions above are not followed, you are making a general denial even if you are
denying and what is the effect of a general denial? It is an admission. Failure to follow the
denials mandated in Sec. 10 would render it no longer specific but general. There are 3 types of
denials specified.

Blanket denial or general denial where the defendant denies all the allegations of all the
paragraphs in the complaint; it is deemed an admission.

When you deny, deny every paragraph, every allegation of the complaint or of the pleading.

Suppose that par(4) of the complaint alleged that the defendant borrowed 1 million from the
plaintiff. The first way of denying it is mentioning the paragraph where it is alleged. Deny it by
saying that you never borrowed money from the plaintiff. The truth of the matter being that it
was a donation. It is an absolute denial of the allegation. Another way is saying that “I admit I
borrowed 1 million but the due date is till 5 years from now so it is not yet due.” You admit it but
by way of avoidance you say something by way of a defense. The third way is to say that you
have no sufficient knowledge of the debt. This is a disavowal that must be done in good faith
because it is equivalent to admission if done in bad faith as a penalty for such bad faith.
Memorize this concept. Be familiar with the words and the meanings of the words.

The pleadings actually will tell us the issues of the case. They will tell the controverted matters
meaning those which are denied. 2. When the opposing counsel offers evidence not within the
issue of the case, you object. You cannot object if you do not know the issues of the case. But
sometimes there are issues being created not because of the pleading but because evidence on a
matter was offered in court that was not objected to, it is as if an issue was created by the consent
of the parties even if it is not in the pleadings. Sec. 5 of Rule 10. If an issue was 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. This has been the subject of many bar exams.

Suppose an evidence for ownership was presented in a case for possession. If it is not objected
to, the court will treat the same as if raised in the pleadings and the court may now rule on the
issue of ownership as well. This is the concept of implied amendment of the pleading.

Bar: There was an action to collect a sum of money. The plaintiff in the complaint did not even
state that he made a prior demand for payment. If there is no prior demand, there is a failure to
state a cause of action because as a rule no demand, no delay unless the exceptions of 1169
apply. During the trial of the case, the plaintiff presented in evidence exhibit A, a written
extrajudicial demand to pay. The defendant did not object to that. Can the court admit exhibit A
in evidence? Yes. There was no objection, it is as if the issue of a demand has been tried by the
parties impliedly and it is as if the pleadings included a demand. What can the other party do? He
can move to amend the pleading to incorporate the evidence in the pleading. Suppose the party
did not do so, can the court still try to include the admission of exhibit A? Yes, as if it is raised in
the pleading.

Bar: An action for ejectment did not mention a demand to vacate. During the trial there was offer
of evidence of a demand to vacate. Can the pleading be amended to conform to the evidence?
Yes. There was no objection from the defendant. Dean is of the opinion that the question was
wrong as there is no trial in an ejectment case the same being a summary procedure.

The question should be this was. The demand was for a debt of 2 million. If the plaintiff offers
evidence for 3 million, which the defendant did not object to, then the evidence was admitted.
Can the court admit the evidence? Yes because the court cannot motu proprio object in behalf of
the defendant. Inadmissible evidence will be admitted because of waiver and that waiver is
because of the failure to object. Inadmissibility can be waived by the failure to object. Can the
court consider the 3 million? Yes, it is as if it was raised in the pleading which is deemed
amended. So, as the counsel for defendant, object as to the excess of 2 million because the issue
is only 2 million. Remember this concept!

Advice: offer evidence not in issue in the pleadings because the adverse party may not object to
it and so such evidence may be admitted by the court. This doctrine however is not applicable to
a criminal proceeding. This rule has been incorporated in the rules of criminal procedure
effective December 2000, Sections 8 and 9 in Rule 110. The life and liberty of an accused is not
made to depend upon the skill of his counsel to object.

Sometimes issues could be created not because of the pleadings or on the failure to object. 3. It
could be created by stipulations like in the pre-trial conference where parties limit the issues.
And sometimes even during the trial the parties could already agree on the issues to be tried.
Agreement could also create issues.

Sec. 6 of Art. 30 – 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.

In sum, jurisdiction over the issue can be obtained thru specific denial, failure to object to new
evidence, and by agreement of the parties.

D. Jurisdiction over the res or property in litigation

This jurisdiction is mandatory in actions in rem and quasi in rem because the object of these
actions is the thing which could either be a property or the status of the parties. The court
acquires jurisdiction upon the thing or the res depending on the nature of the case. For instance,
in an action for a sum of money there is yet no jurisdiction over the property, but if you apply for
a writ of preliminary attachment and such writ is issued by the court, the court now acquires
jurisdiction over the property of the defendant which is now in custodia legis. The court acquires
jurisdiction over the res. But there are cases where jurisdiction over the res is acquired by simply
filing of the proper complaint. For instance, when you file an action to foreclose a real estate
mortgage with the proper allegations in the complaint, then the court will acquire jurisdiction
over that thing. Now if it is a foreclosure of a chattel mortgage, then the court will acquire
jurisdiction over the property if replevin or attachment of the property is made.

So jurisdiction over the res or the property is mandatory and very important in an accion
in rem and in quasi in rem. While jurisdiction over the defendant is mandatory in an action
in personam. Do not forget this because this is very relevant when we talk about summons.

Highlights of FE and UD
Forcible entry

- Demand is not necessary; the defendant has occupied the premises illegally from the
beginning; but there is one instance when jurisprudence requires a demand: if the occupation of
the premises was effected by stealth; there should be a demand upon discovery; because stealth
is somewhat clandestine, this is the only instance in jurisprudence where demand is necessary in
a forcible entry case, otherwise demand is not necessary.

- There must be an allegation in the complaint that the plaintiff was in prior actual physical
possession. That’s a part of the statement of the cause of action. He was actually in possession of
the premises, NOT de jure possession. And such actual possession was taken away from him by
force, or intimidation, or by threat, or by strategy, or by stealth.

- File within the 1 year period from the accrual of the cause of action.

From what point do you count the 1 year period? From the actual entry. Except for stealth, where
it will be counted from the time of demand or notice to vacate.

If filed beyond the 1 year period, you cannot file it as a FE case anymore; but an ordinary action
that is not summary may not be verified (action interdictal).

- Petition must be verified

- No permissive counterclaim allowed.

Unlawful detainer
- Demand is required as a rule unless there is stipulation to the contrary because 1169 of the Civil
code where although demand is required, one exception is where there is stipulation to the
contrary. Second instance is when the ground is expiration of the lease. But remember this, as
found in past examinations, where the ground for unlawful detainer is non-payment of rentals, or
non-compliance of the conditions of the lease, your allegations must contain a demand to vacate.

- NB: in Legal forms exams, you may be asked to write an unlawful detainer complaint; put a
demand to vacate.

- Such an allegation of prior actual physical possession is not required in unlawful detainer.
Why? Because the plaintiff is not in possession. The one in possession is the lessee or the person
tolerated to occupy the premises. What makes his detention or holding of the property unlawful
or illegal? It is the demand to vacate and the failure to vacate which transforms his legal
possession into an unlawful possession.

How should the demand be made? Rule 70 Section 2. Not every demand to vacate is a correct
demand giving rise to an action of UD. If the nature of the demand is wrong, it may not give rise
into an UD case. Non-payment of rentals. Non-compliance with the conditions of lease. The
demand should be to pay and to vacate or to vacate and to pay. Demands to comply and to
vacate are conditions of unlawful detainer.

In Barazona vs. City of Baguio (April 27, 2006) àrentals in arrears was 900k, after the demand
went unheeded, an action was filed in the RTC entitled “an action to collect a sum of money”;
but the allegation in the complaint was to pay and to vacate (a nature of UD); defendant filed
motion to dismiss on the ground of lack of jurisdiction because “to pay and to vacate” are is not
characteristic of collection of a sum of money but for UD cognizable by the MTC; denied;
defendant went directly to the SC on the ground that the RTC’s denial was patently null and
void; SC agreed with him.

To convert the action to recovery of a sum of money, just change “and” to OR; to pay or to
vacate.

If demand is to comply with the conditions of the lease OR to vacate, no longer UD but an action
for specific performance incapable of pecuniary estimation; go to RTC.

- Filed within the 1 year period from the accrual of the cause of action.

From what point do you count the 1 year period? From the last demand to vacate or the notice to
quit. If ground is expiration of the lease, from the point of expiration of the lease because there is
no need to demand.

- If filed beyond the 1 year period, you cannot file it as UD case anymore; but an ordinary action
that is not summary

- Petition must be verified.


- No permissive counterclaim allowed.