Civil Procedure
ESGUERRA NOTES
CIVIL PROCEDURE
Rule 1
General Provisions
I. Rule Making Power of the Supreme Court
¤ 1987 Constitution Art. VIII, Sec. 5 (5)
The Supreme Court shall have the power to promulgate
rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure
in all courts, the admission to the practice of law, the
integrated bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless disapproved
by the Supreme Court.
¤ 1987 Constitution Article VI, Section 30
No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this
Constitution without its advice and concurrence.
At present, the laws governing jurisdiction of the courts
are B.P. Blg. 129 and R.A. No. 296 insofar as it has not
been repealed by B.P. Blg. 129.
II. Distinction between procedural and
substantive rules
Substantive law creates, defines and regulates rights
and duties regarding life, liberty or property which when
violated gives rise to a cause of action (Bustos v.
Lucero, 81 Phil. 640).
Procedural law prescribes the methods of enforcing
those rights and obligations created by substantive law
by providing a procedural system for obtaining redress
for the invasion of rights and violations of duties and by
prescribing rules as to how suits are filed, tried and
decided by the courts.
As applied to civil law, substantive law is that
which declares the rights and obligations of parties who
enter into contracts, while procedural law provides or
regulates the steps to be taken by a person whose rights
under the contract was breached.
III. Force and effect of Rules of Court
Rules of Court, promulgated by authority of
law, have the force and effect of law, if not in conflict
with positive law (Inchausti & Co. vs. De Leon [1913],
24 Phil., 224.) The Rules of Court is subordinate to the
statute, and, in case of conflict, the statute will prevail.
An instance is where Congress expressly
enabled the courts to establish all necessary rules for
the orderly conduct of business, provided such rules
were not repugnant to the laws of the United States, in
the great case of Wayman vs. Southard ([1825], 10
Wheat., 1), made the remark that "these section give
the court full power over all matters of practice. . . ."
Recurring now to section 28 of the Judiciary
Law, and section 6 of the Code of Civil Procedure, which
constitute the legislative authority for the promulgation
of rules by the Supreme Court of the Philippine Islands,
it is to be noted, in the first place, that the court is given
the power to make all necessary rules for orderly
procedure in the court, and for regulating the conduct of
business in the court. We apprehend that within this
language would be included regulations having to do
with the preparation and filing of briefs. The law also
provides that such rules shall be binding and must be
observed. The general limitation is, that the rules must
not be in conflict with laws of the United States or of the
Philippine Islands. The specific limitation is that no
judgment shall be reversed by reason of the failure of
the court to comply with such rules, unless the
substantial rights of the party have been impaired buy
such failure. (Shioji v. Harvey, G.R. No. 18940, 27 April
1922)
IV. Power of Supreme Court to suspend the
Rules of Court
The Supreme Court may suspend the effectivity or apply
with leniency the Rules of Court in the following
circumstances:
1. When compelling reasons so warrant or when
the purpose of justice requires it. What constitutes and
good and sufficient cause that would merit suspension of
the rules is discretionary upon courts (CIR v. Migrant
Pagbilao Corp., G.R. No. 159593, 12 October 2006).
Among the reasons that would warrant the suspension
of the Rules are:
a. the existence of special or compelling
circumstances
b. merits of the case
c. cause not entirely attributable to the fault
or negligence of the party favored by the
suspension of rules
d. a lack of ay showing that the review
sought is merely frivolous and dilatory
e. the other party will not be unjustly
prejudiced thereby (Sarmiento v. Zaratan,
G.R. No. 167471, 5 February 2007).
2. To relieve a litigant of an injustice
commensurate with his failure to comply with the
prescribed procedure and the mere invocation of
substantial justice is not a magical incantation that will
automatically compel the Court to suspend procedural
rules. (Cu-Unjieng v. Court of Appeals, G.R. No. 139596,
24 January 2006)
3. Where substantial and important issues await
resolution. (Migrant Pagbilao Corp., supra)
4. When transcendental matters of life, liberty or
state security are involved (Mindanao Savings Loan
Asso. V. Vicenta Vda. De Flores, 469 SCRA 416).
Page 1
 Civil Procedure
ESGUERRA NOTES
5. The constitutional power of the Supreme Court
to promulgate rules of practice and procedure
necessarily carries with it the power to overturn judicial
precedents on points of remedial law through the
amendment of the Rules of Court (Pinga vs. Heirs of
Santiago, G.R. No. 170354, 30 June 2006).
V. Compliance with, amendment to, or
waiver of the Rules of Court provisions
Justice Moran points out that rules of
procedure are matters of public interest (Sanidad v.
Cabotaje, 5 Phil. 204; Castaño v. Lobingier, 7 Phil 91,
94; Arzadon v. Arzadon, 15 Phil. 77) and cannot be
changed by agreement of parties (Banco Español-Filipino
v. Palanca, 37 Phil. 921; Yangco v. Herrera, 11 Phil 402-
404).
When, however, the Rules themselves allow
the parties to agree on a procedure different from that
provided therein, the agreement is valid. Thus, Rule 4,
Section 3 provides that parties may agree to change or
transfer the venue from one province to another.
Moreover, Rule 24, Section 14 allows the parties to
agree as to the procedure for taking depositions which
will be deemed valid as other dispositions.
It must be noted, upon the other hand, that
there are matters of procedure which may be waived if
public interest is not affected thereby. If, for instance,
the defendant fails to file his answer within fifteen (15)
days, but plaintiff refuses to as for judgment in default,
he thereby waives a right given him by the Rules. Since
the Court cannot declare defendant in default without a
motion to that effect by plaintiff, the latter’s right to file
the motion is exclusively his; which he may waive while
public interest is unaffected. When, however, plaintiff’s
silence is so long that it amount to a failure to prosecute
his case for an unreasonable length of time, the Court
may stop his inaction by dismissing the case. And,
again, mistakes of procedure which do not affect the
merits of the case or substantial rights of the parties are
not grounds for revising orders or judgments (I Moran,
1979 ed.).
JURISDICTION
In General
1. Definition of jurisdiction
Jurisdiction is the power and authority of the court to
hear, try and decide a case (Cuenca v. PCGG, 535 SCRA
102). It has also been referred to as the power or
capacity given by law to a court or tribunal to entertain,
hear, and determine certain controversies (De la Cruz v.
Court of Appeals, 510 SCRA 103).
a. Jurisdiction over the Subject Matter
i. Jurisdiction over the subject matter is
referred to as the power of a particular
court to hear the type of case that is then
before it. The term also refers to the
jurisdiction of the court over the class of
cases to which a particular case belongs.
It is the power or authority to hear and
determine cases of the general class to
which the proceeding in question belongs
(Reyes v. Diaz, 73 Phil. 484).
ii. The term “subject matter” also refers to
the item with respect to which the
controversy has arisen, or concerning
which the wrong has been done, and it is
ordinarily the right, the thing, or the
contract under dispute (De la rama v.
Mendiola, 401 SCRA 704).
iii. Jurisdiction over the subject matter is
conferred by law which may be either the
Constitution or a statute (Guinhawa v.
People of the Philippines, 468 SCRA 278).
Since jurisdiction is a matter of
substantive law, the established general
rule is that the statute in force at the time
of the commencement of the action
determines jurisdiction of the court (Cang
v. Court of Appeals, 296 SCRA 128).
iv. Since jurisdiction over the subject matter
is conferred only by the Constitution or by
law, it cannot be: (a) granted by
agreement of the parties; (b) acquired,
waived, enlarged, or diminished by any
act or omission of the parties; or (c)
conferred by the acquiescence of the
courts (Republic v. Estipular, 336 SCRA
333). Neither can jurisdiction over the
subject matter be conferred by the
administrative policy of any court or a
court’s unilateral assumption of
jurisdiction.
v. Jurisdiction over the subject matter is
determined by the allegations in the
complaint which comprise a concise
statement of ultimate facts constituting
the plaintiff’s cause of action. The nature
of the action, as well as which court or
body has jurisdiction over it, is
determined based on the allegations
contained in the complaint of the plaintiff,
irrespective of whether or not the plaintiff
is entitled to recover upon all or some of
the claims asserted therein (City of
Dumaguete v. Philippine Ports Authority,
G.R. No. 168973, 24 August 2011).
vi. The court’s jurisdiction over the subject
matter cannot be made to depend upon
defenses set up in the answer or in a
motion to dismiss (Tomas Claudio
Memorial College, Inc. v. Court of
Appeals, 316 SCRA 502). The settled rule
is that jurisdiction is based on the
allegations in the initiatory pleading and
the defenses in the answer are deemed
irrelevant and immaterial in its
determination (De la Cruz v. Court of
Appeals, 510 SCRA 103).
vii. The general rule is that the objection for
want of jurisdiction of the controversy or
the subject matter may be made at any
time and at any stage of the proceedings.
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 in any
Page 2
Civil Procedure
ESGUERRA NOTES
proceeding (Fabian v. Desierto, 295 SCRA
470). Lack of jurisdiction is one of those
excepted grounds where the court may
dismiss a claim or a case at any time
when it appears from the pleadings or the
evidence on record that any of those
ground exists, even if they were not
raised in the answer or in a motion to
dismiss (Geonzon Vda. De Barrera v. Heirs
of Vicente Legaspi, 565 SCRA 192).
viii. However, while it is true that jurisdiction
over the subject matter may be raised at
any stage of the proceedings since it is
conferred by law, it is nevertheless settled
that a party may be barred from raising it
on the ground of estoppel (La’o v.
Republic, 479 SCRA 439). In Tijam v.
Sibonghanoy, the Supreme Court barred a
belated objection to jurisdiction that was
raised only after an adverse decision was
rendered by the court against the party
raising the issue of jurisdiction and after
seeking affirmative relief from the court
and after participating in all stages of the
proceedings. The doctrine of estoppel by
laches in this case according to the
Supreme Court is based upon grounds of
public policy and is principally a question
of inequity or unfairness of permitting a
right or claim to be enforced or asserted.
ix. It must, however, be noted that the ruling
in Tijam is the exception rather than the
rule. Estoppel by laches may be invoked
to bar the issue of lack of jurisdiction only
in cases in which the factual milieu is
analogous to that in Tijam. In such
controversies, laches should have been
clearly present; that is, lack of jurisdiction
must have been raised so belatedly as to
warrant the presumption that the party
entitled to assert it had abandoned or
declined to assert it (Regalado v. Go, 514
SCRA 616).
b. Jurisdiction over the res or property
i. Jurisdiction over the res refers to the
court’s jurisdiction over the thing or the
property which is the subject of the
action. This type of jurisdiction is
necessary when the action is an action in
rem or quasi in rem. When the action is
one in personam, jurisdiction over the res
is not sufficient to authorize the court to
render a judgment against the defendant.
ii. Jurisdiction over the res may be acquired
by the court by placing the property or
thing under its custody or constructive
seizure (Example: attachment of
property). It may also be acquired by the
court through statutory authority
conferring upon it the power to deal with
the property or thing within the court’s
territorial jurisdiction (Example: suits
involving the status of the parties or suits
involving the property in the Philippines of
non-resident defendants).
iii. Any relief granted in actions in rem or
quasi in rem must be confined to the res,
and the court cannot lawfully render a
judgment against the defendant (Banco
do Brasil v. Court of Appeals, 333 SCRA
545). For instance, if an action to
foreclose a real estate mortgage, where
the jurisdiction acquired by the court is
only over the res and not over the person
of the defendant because the debtor-
mortgagor is a non-resident who is also
outside of the Philippines, the relief of the
creditor extends only to the property
foreclosed. If in the foreclosure sale, there
arises a deficiency, a deficiency judgment
authorized by Section 6, Rule 68 against
the debtor-mortgagor would not be
feasible because a collection of the
deficiency is a proceding in personam
which requires jurisdiction over the person
of the debtor-mortgagor.
c. Jurisdiction over the Issues
i. Jurisdiction over the issue is the power of
the court to try and decide issues raised in
the pleadings of the parties (Reyes v.
Diaz, 73 Phil. 484).
ii. An issue is a disputed point or question to
which parties to an action have narrowed
down their several allegations and upon
which they are desirous of obtaining a
decision.
iii. Jurisdiction over the issues is conferred
and determined by the pleadings of the
parties. The pleadings present the issues
to be tried and determine whether or not
the issues are of fact or of law. With
respect to an issue raised by the
pleadings, an issue arises because a
material allegation of a claiming party is
specifically denied by the defending party.
iv. Jurisdiction over the issues may also be
determined and conferred by stipulation of
the parties as when in the pre-trial, the
parties enter into stipulations of facts and
documents or enter into an agreement
simplifying the issues of the case.
v. Jurisdiction over the issues may also be
conferred by waiver or failure to object to
the presentation of evidence on a matter
not raised in the pleadings.
d. Jurisdiction over the Parties
i. Jurisdiction over the parties is the legal
power of the court to render personal
judgment against a party to an action or
proceedings.
ii. The manner by which the court acquires
jurisdiction over the parties depends on
whether the party is the plaintiff or the
defendant. Jurisdiction over the plaintiff is
acquired by his filing of the complaint or
petition. By doing so, he submits himself
to the jurisdiction of the court (Davao
Page 3
Civil Procedure
ESGUERRA NOTES
Light & Power Co., Inc. v. Court of
Appeals, 204 SCRA 343). On the other
hand, jurisdiction over the defendant in
civil cases is acquired either by his
voluntary appearance in court and his
submission to its authority, or by service
of summons (Ang Ping v. Court of
Appeals, 310 SCRA 343).
iii. To constitute voluntary appearance, it
must be the kind that amounts to a
voluntary submission to the jurisdiction of
the court. Submission to the court’s
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.
iv. Jurisprudence states that jurisdiction over
the person of the defendant is required
only in action in personam. Jurisdiction
over the person of the defendant is not a
prerequisite in an action in rem and quasi
in rem. However, despite the fact that
jurisdiction over the person is not required
in actions in rem and quasi in rem,
summons must still be served upon the
defendant not for the purpose of vesting
the court with jurisdiction but merely for
satisfying the due process requirement
(Asiavest Limited v. Court of Appeals, 296
SCRA 539).
v. An objection to the jurisdiction over the
person of the defendant may be raised as
a ground for a motion to dismiss. If the
objection is not raised either in a motion
to dismiss or in the answer, the objection
to the jurisdiction over the person is
deemed waived by virtue of the provisions
of Section 1, Rule 9 of the Rules of Court.
vi. A party contesting the court’s lack of
jurisdiction over the person of the
defendant may also raised other defenses.
The rule allows the raising of defenses in
addition to lack of jurisdiction over the
person of the defendant without creating
an inference of a voluntary submission to
the jurisdiction of the court. Section 20,
Rule 14 provides:
Voluntary Appearance—The
defendant’s voluntary
appearance in the action shall
be equivalent to service of
summons. The inclusion in a
motion to dismiss of other
grounds aside from lack of
jurisdiction over the person of
the defendant shall not be
deemed a voluntary
appearance.
2. ESTOPPEL TO DENY JURISDICTION
Heirs of Hinog v. Melicor (2005)
Facts: In May 1991, Custodio, Rufo, Tomos and
Honorio, all surnamed Balane (the “Balane’s”) filed a
complaint for Recovery of Ownership and Possession,
Removal of Construction and Damages against Bertuldo
Hinog (“Bertuldo”). In July 1991, Bertuldo filed his
answer alleging ownership of the disputed property by
virtue of a Deed of Absolute Sale dated 2 July 1980,
executed by one Tomas Pahac with the knowledge and
conformity of private respondents. Pre-trial and trial
ensued. In November 1997, the Balane’s rested their
case and Bertuldo started his direct examination.
However, in June 1998, Bertuldo died without
completing his evidence. Bertuldo was later substituted
by his heirs, who, through counsel, filed a motion to
expunge the complaint from the record and nullify all
court proceedings on the ground that private
respondents failed to specify in the complaint the
amount of damages claimed so as to pay the correct
docket fees. The trial court granted the motion to
expunge. In May 1999, the heirs of Betuldo filed their
supplemental pleading, appending therein a Deed of
Sale dated 15 November 1982. After paying the
deficiency in the docket fees, the trial court granted the
Balane’s prayer for reinstatement of the case. On 14
July 1999, Bertuldo’s heirs manifested that the trial
court having expunged the complaint and nullified all
court proceedings, there is no valid case and the
complaint should not be admitted for failure to pay the
correct docket fees; that there should be no case to be
reinstated and no case to proceed as there is no
complaint filed.
Issue: Whether the heirs of Bertuldo can question the
jurisdiction of the trial court over the case
Held: No. After recognizing the jurisdiction of the trial
court by seeking affirmative relief in their motion to
serve supplemental pleading upon the Balane’s, the
heirs of Bertuldo are effectively barred by estoppel from
challenging the trial court’s jurisdiction. If a party
invokes the jurisdiction of a court, he cannot thereafter
challenge the court’s jurisdiction in the same case. To
rule otherwise would amount to speculating on the
fortune of litigation, which is against the policy of the
Court.
It is also worth noting that when Bertuldo filed
his Answer on 2 July 1991, he did not raise the issue of
lack of jurisdiction for non-payment of correct docket
fees. Instead, he based his defense on a claim of
ownership and participated in the proceedings before the
trial court. It was only on 22 September 1998 or more
than seven years after filing the answer, and under the
auspices of a new counsel, that the issue of jurisdiction
was raised for the first time in the motion to expunge by
Bertuldo’s heirs.
After Bertuldo vigorously participated in all
stages of the case before the trial court and even
invoked the trial courts authority in order to ask for
affirmative relief, petitioners, considering that they
merely stepped into the shoes of their predecessor, are
effectively barred by estoppel from challenging the trial
court’s jurisdiction. Although the issue of jurisdiction
may be raised at any stage of the proceedings as the
same is conferred by law, it is nonetheless settled that a
party may be barred from raising it on ground of laches
or estoppel.
Page 4
 Civil Procedure
ESGUERRA NOTES

3. JURISDICTION AT THE TIME OF FILING OF i. Petitions for certiorari, prohibition or

ACTION mandamus against the RTC
(Section 5 (1), Article 8, 1987
Cang v. Court of Appeals (1998) Constitution; Section 9(1), B.P.
Facts: Herbert Cang (“Cang”) and Anna Marie Clavano Blg. 129); and
(“Anna Marie”) were married in 1973 and begot three ii. Petitions for a Writ of Kalikasan (A.M.
(3) children. Later, Cang was able to secure a divorce No. 09-6-8-SC).
decree from Anna Marie in the United States (US). The
US court issued the divorce decree that also granted c. With the RTC and CA:
sole custody of the three minor children to Anna Marie, i. Petitions for Habeas Corpus (Section
reserving "rights of visitation at all reasonable times and 5 (1), Article 8, 1987
places" to Cang. While in the US, Cang remitted a Constitution; Section 9(1), B.P.
portion of his salary to the Philippines for his children's Blg. 129; and Section 21(a), B.P.
expenses and another, deposited in the bank in the Blg. 129);
name of his children. Meanwhile, in September 1987, ii. Petitions for Quo Warranto (Section 5
Anna Marie’s brother and sister-in-law filed an action for (1), Article 8, 1987 Constitution;
the adoption of Cang and Anna Marie’s three (3) minor Section 9(1), B.P. Blg. 129; and
children. Attached to the application was Anna Marie’s Section 21(a), B.P. Blg. 129);
consent to the adoption. Upon knowing this, Cang and
returned to the Philippines and opposed the adoption. iii. Petitions for certiorari, prohibition or
mandamus against inferior
However, the trial court granted the petition courts and other bodies (Section
for adoption, and which ruling was affirmed by the Court 5 (1), Article 8, 1987
of Appeals. The trial court and the Court of Appeals Constitution; Section 9(1), B.P.
ruled that Anna Marie’s consent was sufficient Blg. 129; and Section 21(a), B.P.
compliance with the requisites of Article 188 of the Blg. 129).
Family Code, considering that Cang had already
abandoned his children Cang elevated his case to the d. With the RTC, CA & Sandiganbayan
Supreme Court, alleging that the petition for adoption i. Petitions for a Writ of Amparo (A.M.
was fatally defective as it did not have his written No. 07-9-12-SC); and
consent as a natural father as required by Article 31 (2) ii. Petitions for a Writ of Habeas Data
of Presidential Decree No. 603, the Child and Youth (A.M. No. 08-1-16-SC).
Welfare Code, and Article 188 (2) of the Family Code.
3. Appellate jurisdiction
Issue: Whether the Child and Youth Welfare Code or a. By way of Appeal by Certiorari (Rule 45)of
the Family Code should govern the petition for adoption the decisions of the:
of Cang’s three (3) children i. CA;
ii. Sandiganbayan;
Held: Jurisdiction being a matter of substantive law, the iii. RTC on pure questions of law;
established rule is that the statute in force at the time of iv. In cases involving the
the commencement of the action determines the constitutionality or validity of a
jurisdiction of the court. As such, when private law or treaty, international
respondents filed the petition for adoption on September agreement or executive
25, 1987, the applicable law was the Child and Youth agreement, law, presidential
Welfare Code, as amended by Executive Order No. 91. decree, proclamation, order,
instruction, ordinance or
regulation, legality of a tax,
VI. JURISDICTION OF COURTS IN CIVIL impost, assessment, toll or
CASES penalty, jurisdiction of a lower
court (Sec. 5, Art. VIII,
A. SUPREME COURT (SC) Constitution); and
1. Exclusive original jurisdiction over v. Court of Tax Appeals en banc.
a. Petitions for certiorari, prohibition or
mandamus against the:
i. Court of Appeals (CA) (Section 17,
R.A. No. 296; Rule 65);
ii. Commission on Elections (COMELEC)
(Rule 64);
iii. Commission on Audit (COA) (Rule
64); and
iv. Sandiganbayan.

2. Concurrent jurisdiction, subject to the

hierarchy of courts with:
a. With the Regional Trial Court (RTC), in
cases affecting ambassadors, other public
ministers and consuls (Section 17, R.A.
No. 296 in relation to Section 21(b), B.P.
Blg. 129).

b. With the CA, in

Page 5
Civil Procedure
ESGUERRA NOTES

B. COURT OF APPEALS C. REGIONAL TRIAL COURTS and MUNICIPAL

(B.P. Blg. 129 as amended by R.A. No. 7902) TRIAL COURTS
(B.P. Blg. 129 as amended by R.A. No. 7691)
1. Exclusive original jurisdiction over actions for
annulment of judgments of the RTC (Section
REGIONAL MUNICIPAL
9(2), B.P. Blg. 129). CIVIL
TRIAL COURTS TRIAL COURTS
CASES
2. Concurrent jurisdiction with: If the gross value,
a. The SC: If the gross value,
claim, or demand
claim, or demand
i. Petitions for certiorari, prohibition or does not exceed
exceeds P300,000
mandamus against the RTC; P300,000 (outside
(outside Metro
ii. Petitions for a Writ of Kalikasan; and Metro Manila), or
Manila), or
iii. Petitions for certiorari, prohibition or does not exceed
exceeds P400,000
mandamus against the NLRC P400,000 (Metro
(Metro Manila):
(but according to the SC in Manila):
St. Martin Funeral Homes v. CA 1. Actions involving personal property
(G.R. No. 130866, September depending on the value;
16, 1998), all such petitions 2. Admiralty and maritime cases
should be initially filed in the CA depending on the amount of demand
in strict observance of the rule or claim;
on hierarchy of courts. The 3. Probate proceedings (testate or
concurrent original jurisdiction of intestate) depending on the gross
the SC can be availed of only value of the estate;
under compelling and 4. Demand for money depending on the
exceptional circumstances amount.
(Regalado, p. 40).
NOTE: Exclusive of Interest, Damages
b. The SC and RTC: of whatever kind, Attorney’s fees,
i. Petitions for Habeas Corpus; Litigation Expenses, and Costs
ii. Petitions for Quo Warranto; and (IDALEC), the amount of which must
iii. Petitions for certiorari, prohibition or be specifically alleged, but the filing
mandamus against inferior fees thereon shall be paid.
courts and other bodies.
NOTE: The exclusion of the term
c. With the RTC, SC and Sandiganbayan: “damages of whatever kind” applies to
i. Petitions for a Writ of Amparo; and cases where the damages are merely
ii. Petitions for a Writ of Habeas Data. incidental to or a consequence of the
main cause of action. However, in
d. Appellate jurisdiction (Section 9(3), B.P. Exclusive
cases where the claim for damages is
Blg. 129): Original
the main cause of action, the amount
i. By way of Ordinary Appeal from the of such claim shall be considered in
RTC and the Family Courts; determining the jurisdiction of the court
ii. By way of Petition for Review from (Administrative Circular No. 09-94).
the RTC rendered in the exercise If the assessed If the assessed
of its appellate jurisdiction; value or interest value or interest
iii. By way of Petition for Review from in the real in the real
the final judgments, decisions, property exceeds property does
resolutions, orders or awards of P20,000 (outside not exceed
any quasi-judicial agency in the Metro Manila), or P20,000 (outside
exercise of its quasi-judicial exceeds P50,000 Metro Manila), or
functions, such as the: (Metro Manila): does not exceed
- Securities and Exchange P50,000 (Metro
Commission; Manila):
- Social Security Commission; 5. Actions involving title to or
- Employees Compensation possession of real property, or any
Commission; interest therein depending on the
- Civil Service Commission; assessed value.
- Office of the Ombudsman in 6. Actions the 6. Inclusion and
administrative disciplinary subject matter exclusion of
cases; and of which is voters (BP 881,
- Other bodies mentioned in incapable of Sec.138);
Rule 43; and pecuniary
iv. Exclusive appellate jurisdiction over estimation. 7. Those covered
decisions of the MTCs in by the Rules on
cadastral or land registration The basic issue in Summary
cases pursuant to its delegated an action Procedure
jurisdiction. incapable of
pecuniary
estimation is one a. Forcible
other than the Entry and

Page 6
Civil Procedure
ESGUERRA NOTES

recovery of Unlawful controversies

money. In this Detainer ;
kind of action, the c. Controversies
money claim is in the
merely incidental NOTE: With elections or
(Singsong v. jurisdiction to appointments
Isabela Sawmill, resolve issue of of directors,
G.R. No. L- ownership to trustees,
27343, February determine only officers or
28, 1979), the issue of managers of
possession; corporations,
NOTE: Annulment partnerships
of judgments of NOTE: or
the RTC is also an Irrespective of associations;
action which is the amount of d. Petitions of
incapable of damages or corporations,
pecuniary unpaid rentals partnerships
estimation but is sought to be or
cognizable by the recovered; associations
CA by express to be
mandate of BP NOTE: Where declared in a
129. In other attorney’s fees state of
words, all actions are awarded, the suspension of
which are same shall not payments.
incapable of exceed P20,000. SC may designate Petition for Habeas
pecuniary certain branches Corpus or
estimation is b. Other civil of RTC to try application for bail
cognizable by the cases, except exclusively in criminal cases
RTC except the probate criminal cases, in the absence of
annulment of proceedings, juvenile and all RTC judges in
judgments of the where the domestic relations the province or
RTC. total amount cases, agrarian city.
of the Special cases, urban land
7. Cases not plaintiff’s reform cases not
within the claim does falling w/in the
exclusive not exceed jurisdiction of any
jurisdiction of PhP100,000 quasi-judicial
any court, or does not body and other
tribunal, person exceed special cases in
or body PhP200,000 the interest of
exercising in Metro justice.
judicial or Manila,
quasi-judicial exclusive of With the SC
functions interests and Actions affecting
(General costs (as ambassadors,
Jurisdiction of amended by public ministers
RTC); A.M. No. 02- and consuls.
11-09-SC,
8. Under Sec. 5.2 effective With the SC and
of the November CA
Securities and 25, 2002).
Regulations a. Petitions for
Code to hear Habeas Corpus
and decide: ;
a. Devices or b. Petitions for
schemes Concurrent Quo Warranto; --------
employed by
or any acts c. Petitions for
of the board certiorari,
of directors, prohibition or
business mandamus
associates, against inferior
its officers or courts and
partnership, other bodies.
amounting to
fraud and
misrepresent
ation;
b. Intra-
corporate

Page 7
Civil Procedure
ESGUERRA NOTES

With the SC, CA pertain to the ancillary remedy that may be

and availed of in conjunction with a petition for
Sandiganbayan custody of minors under Rule 99 of the Rules
a. Petitions for a of Court. In other words, the issuance of the
Writ of Amparo; writ is merely ancillary to the custody case
b. Petitions for a pending before the family court. The writ must
Writ of Habeas be issued by the same court to avoid splitting
Data. of jurisdiction, conflicting decisions,
interference by a co-equal court and judicial
instability. – Madrian v. Madrian, G.R. No.
159374, 12 July 2007. See also In the Matter
With the of Application for the Issuance of a Writ of
Insurance Habeas Corpus Richard Brian Thornton v.
Commissioner Adelfa Thornton, G.R. No. 154598, 16 August
Claims not 2004)
exceeding
PhP100,000. b. Petitions for adoption of children and the
All cases decided revocation thereof;
by the lower c. Complaints for annulment and declaration of
courts in their nullity of marriage, matters relating to marital
respective status and property relations of husband & wife
territorial or those living together under different status
Appellate jurisdiction except --------- or agreement, and petitions for dissolution of
decisions of lower conjugal partnership of gains;
courts in the d. Support and/or acknowledgment;
exercise of e. Summary judicial proceedings under the
delegated Family Code; and
jurisdiction. f. Petition for declaration of status of children,
May be assigned voluntary or involuntary commitment of
by the SC to hear children, matters relating to parental authority
cadastral or land and other cases cognizable under PD 603, EO
registration cases 56 (series of 1996) and other related laws.
where there is no
Delegated ------ controversy or 2. Special provisional remedies:
opposition over a. In cases of violence among the family
the land or in case members living in the same domicile or
of contested lands, household, the Family Court may issue a
the value does not restraining order against the accused or
exceed P100,000. defendant upon verified application by the
complainant or the victim for relief from abuse.
N.B. Under Section 5, R.A. No. 7691 (approved on 25 b. The court may order the temporary custody of
March 1994), the amounts which determine the children in all civil actions for their custody,
jurisdiction of the RTC under Section 19 (3), (4) and (8) support pendente lite, including deduction from
of B.P. Blg. 129 were as follows: the salary, and use of conjugal home and other
a. From 25 March 1994 to 25 March 1999: properties in all civil actions for support.
exceeds P100,000 – outside Metro Manila, and
exceeds P200,000 – inside Metro Manila; E. Special Courts
b. From 26 March 1999 to 26 March 2004:
exceeds P200,000 – outside Metro Manila, and a. Sandiganbayan
exceeds P400,000 – inside Metro Manila; and (P.D. No. 1616, as amended by R.A. No. 7975
c. From 27 March 2004 to present: exceeds and R.A. No. 8249)
P300,000 – outside Metro Manila, and exceeds
P400,000 – inside Metro Manila. 1. Exclusive original jurisdiction over civil cases
filed pursuant to and in connection with E.O
Accordingly, if the amount of the claim does not No. 1, 2 14 and 14-A (Sequestration cases)
exceed the abovementioned amounts during the issued in 1986.
relevant periods, the MTC shall have jurisdiction.
2. Concurrent jurisdiction with:
D. FAMILY COURTS (R.A. No. 8369) RTC, CA and SC in:
i. Petitions for a Writ of Amparo;
1. Exclusive original jurisdiction and
a. Petitions for guardianship, custody of children, ii. Petitions for a Writ of Habeas
habeas corpus in relation to the custody of Data.
children;
3. Original jurisdiction over petitions for the
N.B. The SC and the CA have not issuance of the writs of mandamus,
been deprived of their original jurisdiction to prohibition, certiorari, habeas corpus,
issue writs of habeas corpus. Writs of habeas injunction and other ancillary writs and
corpus which may be issued exclusively by processes in aid of its appellate jurisdiction
family courts under Section 5(b) of RA 8369 and over petition of similar nature, including
quo warranto, arising or that may arise in

Page 8
Civil Procedure
ESGUERRA NOTES
cases file or which may be filed under E.O.
Nos. 1, 2 14 and 14-A, issued in 1986
PROVIDED, that the jurisdiction over these
petitions shall not be exclusive of the supreme
Court.
b. Court of Tax Appeals R.A. No. 9282
1. Exclusive appellate jurisdiction to review by
appeal, as herein provided:
a. Decisions of the Commissioner of Internal
Revenue in cases involving disputed
assessments, refunds of internal revenue
taxes, fees or other charges, penalties in
relation thereto, or other matters arising
under the National Internal Revenue or
other laws administered by the Bureau of
Internal Revenue;
b. Inaction by the Commissioner of Internal
Revenue in cases involving disputed
assessments, refunds of internal revenue
taxes, fees or other charges, penalties in
relations thereto, or other matters arising
under the National Internal Revenue Code
or other laws administered by the Bureau
of Internal Revenue, where the National
Internal Revenue Code provides a specific
period of action, in which case the inaction
shall be deemed a denial;
c. Decisions, orders or resolutions of the
Regional Trial Courts in local tax cases
originally decided or resolved by them in
the exercise of their original or appellate
jurisdiction;
d. Decisions of the Commissioner of Customs
in cases involving liability for customs
duties, fees or other money charges,
seizure, detention or release of property
affected, fines, forfeitures or other
penalties in relation thereto, or other
matters arising under the Customs Law or
other laws administered by the Bureau of
Customs;
e. Decisions of the Central Board of
Assessment Appeals in the exercise of its
appellate jurisdiction over cases involving
the assessment and taxation of real
property originally decided by the
provincial or city board of assessment
appeals;
f. Decisions of the Secretary of Finance on
customs cases elevated to him
automatically for review from decisions of
the Commissioner of Customs which are
adverse to the Government under Section
2315 of the Tariff and Customs Code;
g. Decisions of the Secretary of Trade and
Industry, in the case of nonagricultural
product, commodity or article, and the
Secretary of Agriculture in the case of
agricultural product, commodity or article,
involving dumping and countervailing
duties under Section 301 and 302,
respectively, of the Tariff and Customs
Code, and safeguard measures under
Republic Act No. 8800, where either party
may appeal the decision to impose or not
to impose said duties.
F. Quasi-judicial bodies
a. Securities Exchange Commission (SEC)
(Sec. 5.2, RA 8799, Securities Regulation
Code)
The SEC’s jurisdiction over all cases
enumerated under Section 5 of Presidential Decree No.
902-A has been transferred to the Courts of general
jurisdiction or the appropriate Regional Trial Court. The
cases covered by this provision have been included in
the table above.
b. Civil Service Commission
Magpale vs. CSC (1992)
Facts : Magpale is an employee of the Philippine Ports
Authority (PPA). A formal charge for Dishonesty, Pursuit
of Private Business without permission as required by
Civil Service Rules and Regulations, Frequent and
Unauthorized Absences and Neglect of Duty was filed
against him. A Decision was rendered by the Secretary
of the DOTC finding him guilty of Gross Negligence on
two counts: (a) for his failure to account for the forty-
four (44) assorted units of equipment, among them a
Sony Betamax and a TV Camera, and (b) for failing to
render the required liquidation of his cash advances
amounting to P44,877.00 for a period of four years. He
was also found guilty of frequent and unauthorized
absences. Accordingly, he was meted the penalty of
dismissal from the service with the corresponding
accessory penalties. When petitioner's motion for
reconsideration of the aforesaid Decision was denied in
the DOTC's Order, he appealed to the Merit System and
Protection Board (MSPB) of Civil Service Commission.
The MSPB rendered a Decision reversing the Decision of
the DOTC. The PPA filed an appeal with the Civil Service
Field Office-PPA, and the latter office indorsed the
appeal to respondent CSC. Magpale filed a Motion to
Dismiss the PPA’s appeal claiming among others that the
CSC has no jurisdiction over said appeal.
Issue: Whether a decision exonerating a government
employee from administrative liability and reinstating
him to his former position is appealable to the to the
CSC
Held: No. While it is true, as contended by respondent
Civil Service Commission that under Section 12 (par.
11), Chapter 3, Subtitle A, Book V of Executive Order
292, the CSC does have the power to —
Hear and decide
administrative cases instituted by or
brought before it directly or on
appeal, including contested
appointments, and review decisions
and actions of its offices and of the
agencies attached to it. . . .
The exercise of the power is qualified by and should be
read together with the other sections of the same sub-
title and book of Executive Order 292, particularly
Page 9
Civil Procedure
ESGUERRA NOTES
Section 49 which prescribes the following requisites for
the exercise of the power of appeal, to wit:
a. the decision must be appealable;
b. the appeal must be made by the
party adversely affected by the
decision;
c. the appeal must be made within
fifteen days from receipt of the
decision, unless a petition for the
reconsideration is seasonably filed;
and
d. the notice of appeal must be filed
with the disciplining office, which
shall forward the records of the case,
together with the notice of appeal to
the appellate authority within fifteen
days from filing of the notice of
appeal, with its comments, if any.
Under Section 47 of the same Code, the CSC
shall decide on appeal all administrative disciplinary
cases involving the imposition of:
a. a penalty of suspension for more
than thirty days; or
b. fine in an amount exceeding thirty
days salary; or
c. demotion in rank or salary or
transfer; or
d. removal or dismissal from office.
The 5 February 1990 decision of the MSPB did
not involve dismissal or separation from office, rather,
the decision exonerated Magpale and ordered him
reinstated to his former position. Consequently, in the
light of our pronouncements in the aforecited cases
of Mendez v. Civil Service Commission and Paredes
vs. Civil Service Commission, the MSPB decision was not
a proper subject of appeal to the CSC.
e. Housing and Land Use Regulatory Board
(HLURB)
Delos Santos vs. Sps. Sarmiento (2007)
Facts: Spouses Sarmiento agreed to sell to
Santos a residential lot. Of the P842,000.00 purchase
price, P300,000.00 shall be paid by Santos at the time
of the execution of the Contract to Buy and Sell and the
remaining balance to be paid within five (5) years at a
monthly amortization. Before the purchase price could
be paid in full, Santos and Spouses Sarmiento entered
into a Cancellation of Contract to Buy and Sell of
wherein Spouses Sarmiento agreed to refund Santos the
P584,355.10 remitted by the latter, while Santos agreed
to surrender possession of the lot to former. On 14 July
1999, Santos wrote Spouses Sarmiento, demanding
refund of P760,000.00 with interest. Spouses
Sarmiento wrote back that they intend to refund the
amount within 90 days. When Spouses Sarmiento failed
to refund Santos, the latter filed with the HLURB a
Complaint, to enforce the cancellation of contract and
demand payment of the refund plus interest and
damages. Arbiter San Vicente issued an Order dated 7
June 2000, declaring respondents therein in default for
failure to file an answer despite notice. It is noted,
however, that the respondent named in the 7 June
2000 Order is IA-JAN Sarmiento Realty, Inc. (IJSRI), not
Spouses Sarmiento.
Issue: Does the HLURB have jurisdiction over all
cancellations of contracts of sale involving a parcel of
residential land?
Held: No. The scope and limitation of the jurisdiction of
the HLURB is well-defined. Its precursor, the National
Housing Authority (NHA), was vested under Presidential
Decree (P.D.) No. 957 with exclusive jurisdiction to
regulate the real estate trade and business, specifically
the registration of subdivision or condominium
projects and dealers, brokers and salesmen of
subdivision lots or condominium units; issuance and
suspension of license to sell; and revocation of
registration certificate and license to sell. Its jurisdiction
was later expanded under Presidential Decree (P.D.) No.
1344 of April 2, 1978, to include adjudication of the
following cases:
Sec. 1. In the exercise of its function
to regulate the real estate trade and
business and in addition to its powers
provided for in Presidential Decree
No. 957, the National Housing
Authority shall have exclusive
jurisdiction to hear and decide cases
of the following nature:
A. Unsound real estate business practices;
B. Claims involving refund and any other claims filed
by subdivision lot or condominium unit buyer
against the project owner, developer, dealer,
broker or salesman; and
C. Cases involving specific performance of contractual
and statutory obligations filed by buyers of
subdivision lot or condominium unit against the
owner, developer, broker or salesman. (Emphasis
ours.)
………
At present, therefore, it is clear that the
jurisdiction of the HLURB to hear and decide cases is
determined by the nature of the cause of action, the
subject matter or property involved and the parties.
The cases over which HLURB has jurisdiction
are those arising from either unsound real estate
business practices, or claims for refund or other claims
filed by subdivision lot or condominium unit buyers
against the project owner, developer, dealer, broker or
salesman, or demands for specific performance of
contractual and statutory obligations filed by buyers
of subdivision lots or condominium units against the own
er, developer, broker or salesman.
In addition, these cases must involve a
subdivision project, subdivision lot, condominium project
or condominium unit. A subdivision project or
subdivision lot is defined under Sec. 2 of P.D. No. 957,
thus:
Section 2 x x x
D. Subdivision project Subdivision
project shall mean a tract or a parcel
of land registered under Act No. 496
which is partitioned primarily for
residential purposes into individual
lots with or without improvements
thereon, and offered to the public for
Page 10
Civil Procedure
ESGUERRA NOTES

sale, in cash or in installment terms. VII. KINDS OF ACTION

It shall include all residential,
commercial, industrial and An “action” is the legal and formal demand of
recreational areas as well as open one’s right from another person made and insisted upon
spaces and other community and in a court of justice (Hermanos v. de la Riva, G.R. No. L-
public areas in the project. 19827, 6 April 1923). A “civil action” is one by which a
party sue another for the enforcement or protection of a
E. Subdivision lot. Subdivision lot right, or the prevention or redress of a wrong (Rule 1,
shall mean any of the lots, whether Section 3(a)).
residential, commercial, industrial, or
recreational, in a subdivision project. 1. As to cause or foundation
a. Personal
In quite a number of cases, we declared the i. An action which is not founded upon
HLURB without jurisdiction where the complaint filed did the privity of real rights or real
not allege that the property involved is a subdivision or property.
condominium project or a subdivision lot or
condominium unit. ii. In a personal action, the plaintiff
Going back to the jurisdictional requirements, generally seeks the recovery of
it is also important that, with reference to cases arising personal property, the enforcement
from a claim for refund or specific performance, said of a contract or the recovery of
cases must be filed by the subdivision lot or damages.
condominium unit buyer or owner against the
subdivision or condominium project owner, developer, iii. Personal action is one brought for the
broker or salesman. Cases filed by buyers or owners recovery of personal property, for the
of property which is not alleged to be a subdivision or enforcement of some contract or
condominium property do not fall within the jurisdiction recovery of damages for its breach,
of the HLURB for the complainants in said cases are or for the recovery of damages for
treated as ordinary real estate buyers or owners, not the commission of an injury to the
subdivision or condomium buyers or owners. person or property (Go v. United
Coconut Planters Bank, G.R. No.
What about cases filed by subdivision or 156187, 11 November 2004).
condominium project owners or developers against their
buyers? The rules on this matter differ. b. Real

The general rule is stated in Pilar Development i. An action is “real” when it affects title
Corporation v. Villarand Suntay v. Gocolay where we to or possession of real property, or
held that the HLURB has no jurisdiction over cases filed an interest therein. All other actions
by subdivision or condominium owners or developers are personal.
against subdivision lot or condominium unit buyers or
owners. The rationale behind this can be found in the ii. An action is real when it is founded
wordings of Sec. 1, P.D. No. 1344, which expressly upon the privity of real estate. That
qualifies that the cases cognizable by the HLURB are means that realty, or an interest
those instituted by subdivision or condomium buyers or therein is the subject matter of the
owners against the project developer or owner. This action.
rationale is also expressed in the preambles of P.D. No.
957 and P.D. No. 1344 which state that the policy of the iii. Not every action, however, involving
law is to curb unscrupulous practices in real estate trade a real property is a real action
and business.[52] because the realty may only be
incidental to the subject matter of the
The only instance that HLURB may take suit. To be a real action it is not
cognizance of a case filed by the developer is when said enough that the action must deal
case is instituted as a compulsory counterclaim to a with real property. It is important
pending case filed against it by the buyer or owner of a that the matter in litigation must also
subdivision lot or condominium unit. We allowed this involve any of the following issues:
in Francel Realty Corporation v. Sycip in order to title to, ownership, possession,
forestall splitting of causes of action. partition, foreclosure of mortgage, or
any interest in real property.
To summarize, not every case involving buyers
and sellers of real estate may be filed with the
HLURB. Its jurisdiction is limited to those cases filed by
the buyer or owner of a subdivision or condominium and
based on any of the causes of action enumerated under
Section 1 of P.D. No. 1344, and which jurisdictional facts
must be clearly alleged in the complaint.

Page 11
Civil Procedure
ESGUERRA NOTES
Importance of distinction between personal action
and real action
 The distinction between a real action and a personal
action is important for the purpose of determining
the venue of the action. Questions involving the
propriety or impropriety of a particular venue are
resolved by initially determining the nature of the
action.
 A real action is local, i.e., its venue depends upon
the location of the property involved in the
litigation.
 A personal action is transitory, i.e., its venue
depends upon the residence of the plaintiff or the
defendant. A personal action 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.
2. As to object
a. In rem
i. An action in rem is an action against
the thing itself instead of against the
person.
ii. A judgment in rem is binding upon
the whole world, such as a judgment
in a land registration case or probate
of will.
iii. In an action in rem jurisdiction over
the person of the defendant is not a
prerequisite to confer jurisdiction on
the court provided that the court
acquires jurisdiction over the res.
b. In personam
i. An proceeding in personam is a
proceeding to enforce personal rights
and obligations brought against the
person and is based on the
jurisdiction of the person, although it
may involve his right to, or the
exercise of ownership of, specific
property, or seek to compel him to
control or dispose of it in accordance
with the mandate of the court.
ii. The purpose of a proceeding in
personam is to impose through the
judgment of a court, some
responsibility or liability directly upon
the person of the defendant
(Domagas v. Jensen, 448 SCRA 663).
iii. An action in personam is an action
against a person on the basis of his
personal liability.
iv. An action in personam is said to be
one which has for its object a
judgment against the person.
c. Quasi in rem
i. An action quasi in rem is one wherein
an individual is named as defendant
and the purpose of the proceeding is
to subject his interest therein to the
obligation or lien burdening the
property. (Asiavest Limited v. Court
of Appeals, 296 SCRA 539).
ii. The object of an action quasi in rem
is the sale or disposition of the
property whether by attachment,
foreclosure or any other form of
remedy (Banco Español-Filipino v.
Palanca, 37 Phil 921). A proceeding
quasi in rem is one brought against
persons seeking to subject the
property of such persons to the
discharge of the claims assailed. In
an action quasi in rem, an individual
is named as defendant and the
purpose of the proceeding is to
subject his interests therein to the
obligation or loan burdening the
property.
iii. Actions quasi in rem deal with the
status, ownership or liability of a
particular property but which are
intended to operate on these
questions only as between the
particular parties to the proceedings
and not to ascertain or cut-off the
rights or interests of all possible
claimants (Domagas v. Jensen, 448
SCRA 663).
Significance of distinction between actions in rem,
in personam and quasi in rem
 The distinction is important to determine whether
or not jurisdiction over the person of the defendant
is required and consequently to determine the type
of summons to be employed.
 Jurisdiction over the person of the defendant is
necessary for the court to validly try and decide a
case against said defendant where the action is one
in personam but not where the action in in rem or
quasi in rem.
 In a proceeding in rem or quasi in rem, jurisdiction
over the person of the defendant is not a
prerequisite to confer jurisdiction on the court
provided that the court acquires jurisdiction over
the res. In said action, the court is not concerned
with the acquisition of jurisdiction over the person
of the defendant. In these actions, it is the
acquisition by the court of jurisdiction over the res
which principally matters.
 Although summons is not required in actions in rem
and quasi in rem, nonetheless, summons must be
served upon the defendant not for the purpose of
vesting the court with jurisdiction but merely fore
satisfying the due process requirement.
Page 12
Civil Procedure
ESGUERRA NOTES
VIII.COMMENCEMENT OF ACTION
Civil actions are commenced upon filing of the
Complaint (Section 5, Rule 1, Rules of Court). Civil
actions are deemed commenced from the date of the
filing and docketing of the Complaint, without taking into
account the issuance and service of summons (Cabrera
v. Tiano, G.R. No. L-17299, July 31, 1963).
1. Condition Precedent
KATARUNGANG PAMBARANGAY LAW
Under Sections 399-422, Chapter 7, Title One, Book
III, Republic Act No. 7160 otherwise known as the Local
Government Code, all disputes may be subject of
barangay proceedings for amicable settlement 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 disputes relates to the
performance of his judicial functions;
c. xxx xxx xxx
d. 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 agrees to submit their
differences to amicable settlement by an
appropriate lupon;
e. Such other classes or disputes which the
president may determine in the interest of
justice or upon the recommendation of the
Secretary of Justice;
f. Where the disputes involve real properties
located in different cities or municipalites
unless the parties thereto agree to submit
their differences to amicable settlement
by an appropriate lupon; and
g. xxx xxx xxx
h. Sec, 1, Rule VI, Katarungang
Pambarangay Rules provide for additional
exception which is any complaint by or
against corporations, partnerships or
juridical entities.
Lumbuan v. Ronqullo (2006)
The Supreme Court held that although there
was no Pangkat Tagapamayapa constituted to hear the
parties’ claims, as required under R.A. No. 7160, there
was already substantial compliance of the required
conciliation proceedings before the barangay, when the
parties met before the Barangay Chairman to discuss
the possibility of amicable settlement.
Barangay conciliation is a condition precedent to
the filing of an action (Uy v. Contreras, G.R. No.
111416 , 26 September 1994). While failure to
comply with a condition precedent is not
jurisdictional, it may be a ground to dismiss under
Section 1 (j), Rule 16, Rules of Court.
 Non-compliance with the condition precedent of
barangay conciliation does not prevent a court of
competent jurisdiction from exercising its power of
adjudication over a case where the defendants fail
to object to such exercise of jurisdiction. But such
objection should be seasonably made before the
court first taking cognizance of the complaint, and
must be raised in the Answer, or in such other
pleading allowed under the Rules of Court. (Espino
v. Legarda, G.R. No. 149266, 17 March 2006;
Sabay v. People of the Philippines. (G.R. No.
192150, 1 October 2014).
 Barangay conciliation is a condition precedent for
filing a claim, and compliance of the same must be
alleged in the pleading. Failure to resort to
conciliation is a ground for motion to dismiss for
non-compliance of condition precedent. (Willard
Riano, Civil Procedure 2009 ed., p. 97)
 It is true that the precise technical effect of failure
to comply with the requirement on barangay
conciliation is much the same effect produced by
non-exhaustion of administrative remedies -- the
complaint becomes afflicted with the vice of pre-
maturity; and the controversy there alleged is not
ripe for judicial determination. The complaint
becomes vulnerable to a motion to dismiss. (Aquino
v. Aure, G.R. No. 153567, February 18, 2008)
Parties may go directly to court without need of
prior barangay conciliation under Section 412 of
R.A. No. 7110 in the following instances:
a. When the accused is under detention;
b. Where a person has otherwise been
deprived of personal liberty calling for
habeas corpus proceedings;
c. Where actions are coupled with
provisional remedies such as preliminary
injunction, attachment, delivery of
personal property and support pendente
lite; and
d. Where action may otherwise be barred by
the statute of limitations.
2.PAYMENT OF DOCKET FEES
Heirs of Bertuldo Hinog v. Melicor (2005)
reiterating Sun Insurance Office, Ltd. v. Asuncion
(1989)
 While the payment of the prescribed docket fee
is a jurisdictional requirement, even its non-
payment at the time of filing does not
automatically cause the dismissal of the case,
as long as the fee is paid within the applicable
prescriptive or reglementary period, more so
when the party involved demonstrates a
willingness to abide by the rules prescribing
such payment.
 Guidelines regarding the payment of filing
fees:
- It is not simply the filing of the complaint
or appropriate initiatory pleading, but the
payment of the prescribed docket fee, that
vests a trial court with jurisdiction over
the subject-matter or nature of the action.
Where the filing of the initiatory pleading
is not accompanied by payment of the
docket fee, the court may allow payment
of the fees within a reasonable time but in
no case beyond the applicable prescriptive
or reglementary period.
- The same rule applies to permissive
counterclaims, third-party claims and
Page 13
Civil Procedure
ESGUERRA NOTES
similar pleadings, which shall not be
considered filed until and unless the filing
fee prescribed therefor is paid. The court
may also allow payment of said fee within
a reasonable time but also in no case
beyond its applicable prescriptive or
reglementary period.
- Where the trial court acquires jurisdiction
over a claim by the filing of the
appropriate pleading and payment of the
prescribed filing fee but, subsequently,
the judgment awards a claim not specified
in the pleading, or if specified the same
has been left for determination by the
court, the additional filing fee therefor
shall constitute a lien on the judgment. It
shall be the responsibility of the Clerk of
Court or his duly authorized deputy to
enforce said lien and assess and collect
the additional fee.
Rule 2
Causes of Action
I. Causes of Action (Sections 1 and 2)
Section 1 of Rule 2 of the Revised Rules of
Court requires that every ordinary civil action must be
based on a cause of action. Section 2 of the same rule
defines a cause of action as an act or omission by which
a party violates the right of another.
In order that one may claim to have a cause of
action, the following elements must concur:
1) a right in favor of the plaintiff by whatever
means and under whatever law it arises or is
created;
2) an obligation on the part of the named
defendant to respect or not to violate such
right; and
3) an act or omission on the part of such
defendant in violation of the right of the
plaintiff or constituting a breach of the
obligation of the defendant to the plaintiff for
which the latter may maintain an action for
recovery of damages or other appropriate
relief. In other words, "a cause of action arises
when that should have been done is not done,
or that which should not have been done is
done. (Anchor Savings Bank v. Furigay, G.R.
No. 191178, 13 March 2013)
Heirs of Tomas Dolleton vs. Fil-Estate
Management, Inc. (2009)
Facts: Petitioner-heirs filed for quieting of title and/or
recovery of ownership and possession with preliminary
injunction/restraining order and damages against
respondents Fil-Estate Management Inc. They claimed
that they have been in open, exclusive, and notorious
possession of parcels of land for more than 90 years
until Fil-Estate forcibly ousted them. Fil-Estate
contended that that have in their possession numerous
certificates covering the parcels of land and can only be
attacked collaterally pursuant to PD 1529. The
respondents also filed a motion to dismiss on the
grounds that the petitioners do not have a cause of
action the RTC dismissed the complaint filed by the
petitioner.
Issue: Whether or not petitioners’ Complaints state a
cause of action.
Held: Yes. The Supreme Court ruled that each of the
Complaints filed by petitioners sufficiently stated a cause
of action. The Complaints alleged that petitioners are
the owners of the subject properties by acquisitive
prescription. As owners thereof, they have the right to
remain in peaceful possession of the said properties and,
if deprived thereof, they may recover the same. The
petitioners are in open, continuous and notorious
possession of the disputed parcels of land for more than
90 years.
The elementary test for failure to state a cause of action
is whether the complaint alleges facts which if true
would justify the relief demanded. The inquiry is into the
sufficiency, not the veracity, of the material allegations.
If the allegations in the complaint furnish sufficient basis
on which it can be maintained, it should not be
dismissed regardless of the defense that may be
presented by the defendant. The rule of civil procedure
provides the elements of a cause of action ; 1) a right in
favor of a plaintiff. 2) An obligation on the part of the
defend ant to violate such right. 3) an act or omission
on the part of defendant of the right of the plaintiff
which constitutes such right.
II. Distinguished from Right of Action
Right of Action is the right to commence and
prosecute an action to obtain the relief sought. (Herrera,
Vol. 1, p. 285, citing 1 C.J.S. 988).
The term "cause of action" has been held to be
synonymous with "right of action” but in the law of
pleading one is distinguished from the other in that a
right of action is a remedial right belonging to some
person, while a cause of action is a formal statement of
the operative facts that give rise to such remedial right.
The one is a matter of right and depends on the
substantive law, while the other is a matter of statement
and is governed by the law of procedure. (L.G. Marquez
v. Varela, G.R. No. L-4845, 24 December 1952)
The right of action accrues when there exists a
cause of action. (Espanol vs. Chairman, Philippine
Veterans Administration, 137 SCRA 314).
The elements of a right of action are: (a) the
existence of a cause of action; (b) the performance of all
conditions precedent to the brining of the action; and (c)
the right to bring and maintain the action must be in the
person instituting it.
III. Splitting a cause of action (Secs. 3-4)
Splitting a single cause of action is the act of
dividing a single or indivisible cause of action into
several parts or claims and instituting two or more
actions upon them. (Perez v. Court of Appeals, G.R. No.
No. 157616, 22 July 2005)
A party may not institute more than one suit
for a single cause of action. (Section 3, Rule 2, Rules of
Court)
Page 14
Civil Procedure
ESGUERRA NOTES

If two or more suits are instituted on the basis

of the same cause of action, the filing of one or a PDCP appealed to the Court of Appeals, which
judgment upon the merits in any one is available as a reversed the RTC. It opined that PDCP was not barred
ground for the dismissal of the others. (Section 4, Rule from exercising its right to foreclose on the property of
2, Rules of Court) petitioners despite suing Sammy for violation of BP 22.

The rule against splitting a cause of action is intended: Issue: Whether or not the subsequent foreclosure of the
a. to prevent repeated litigation between the mortgaged property was barred by the previous filing of
same parties in regard to the same subject of the complaint for violation of B.P. 22.
controversy;
b. to protect the defendant from unnecessary Held: No. The Supreme Court ruled that the filing of the
vexation; and complaint for violation of B.P. 22. did not bar the
c. to avoid the costs and expenses incident to subsequent foreclosure of the mortgaged property.
numerous suits. It comes from the old
maxim nemo debet bis vexari, pro una et Petitioners anchor their position on Supreme
eadem causa (no man shall be twice vexed for Court Circular 57-97, which provides for the rules and
one and the same cause). (Chua v. Metrobank, guidelines in the filing and prosecution of criminal cases
G.R. No. 182311, 19 August 2009, citing under BP 22. Pertinent portions of Circular 57-97
Bachrach Motor Co., Inc. v. Icarangal, 68 Phil provide:
287)
1.The criminal action for
violation of [BP] 22 shall be
Sps Yap vs. First E-Bank Corporation (2009)
deemed to necessarily
include the corresponding
Facts: Sammy Yap (“Sammy”) obtained a P2 million
civil action, and no
loan from PDCP Development Bank, Inc. (“PDCP”). As
reservation to file such civil
security, Sammy’s parents, petitioners Simon Yap and
action separately shall be
Milagros Guevarra, executed a third-party mortgage on
allowed or recognized.
their land and warehouse standing on it, which
mortgage agreement allowed PDCP to extrajudicially
Circular 57-97 has been institutionalized as
foreclose the property in case Sammy failed to pay the
Section 1(b), Rule 111 of the Rules of Court:
loan.
Section
1. Institution of criminal and
Sammy issued a promissory note and six
civil actions.—xxx
postdated checks in favor of PDCP as additional
securities for the loan. When Sammy defaulted on the
(b) The criminal action for violation of [BP] 22
payment of his loan, PDCP presented the six checks to
shall be deemed to include the corresponding
the drawee bank but the said checks were dishonored.
civil action. No reservation to file such civil
This prompted PDCP to file a complaint against Sammy
action separately shall be allowed.
for six counts of violation of BP 22 (Bouncing Checks
Law).
However, Circular 57-97 (and, it goes without
saying, Section 1(b), Rule 111 of the Rules of Court)
Therafter, PDCP filed an application for
was not yet in force when PDCP sued Sammy for
extrajudicial foreclosure of mortgage on the property of
violation of BP 22 and when it filed a petition for
petitioners which served as principal security for
extrajudicial foreclosure on the mortgaged property of
Sammy’s loan.
petitioners on February 8, 1993 and May 3, 1993,
respectively. In Lo Bun Tiong v. Balboa, Circular 57-97
Subsequently, on motion of Sammy and
was not applied because the collection suit and the
without objection from the public prosecutor and PDCP,
criminal complaints for violation of BP 22 were filed prior
the BP 22 cases were provisionally dismissed.
to the adoption of Circular 57-97. The same principle
applies here.
Petitioners filed in the Regional Trial Court
(RTC) of San Carlos City, Pangasinan (the “lower court”)
Thus, prior to the effectivity of Circular 57-97,
a complaint for injunction (with prayer for the issuance
the alternative remedies of foreclosure of mortgage and
of a temporary restraining order/preliminary injunction),
collection suit were not barred even if a suit for BP 22
damages and accounting of payments against PDCP. The
had been filed earlier, unless a judgment of conviction
complaint sought to stop the foreclosure sale on the
had already been rendered in the BP 22 case finding the
ground that PDCP waived its right to foreclose the
accused debtor criminally liable and ordering him to pay
mortgage on their property when it filed the BP 22 cases
the amount of the check(s).
against Sammy.
In this case, no judgment of conviction (which
The lower court ruled in favor of petitioners. It
could have declared the criminal and civil liability of
held that PDCP had three options when Sammy
Sammy) was rendered because Sammy moved for the
defaulted in the payment of his loan: enforcement of the
provisional dismissal of the case. Hence, PDCP could
promissory note in a collection case, enforcement of the
have still foreclosed on the mortgage or filed a collection
checks under the Negotiable Instruments Law and/or BP
suit.
22, or foreclosure of mortgage. The remedies were
alternative and the choice of one excluded the others.
Furthermore, it is undisputed that the BP 22
Thus, PDCP was deemed to have waived its right to
cases were provisionally dismissed at Sammy’s instance.
foreclose on the property of petitioners when it elected
In other words, PDCP was prevented from recovering
to sue Sammy for violation of BP 22.
the whole amount by Sammy himself. To bar PDCP from

Page 15
Civil Procedure
ESGUERRA NOTES
foreclosing on petitioners’ property for the balance of
the indebtedness would be to penalize PDCP for the act
of Sammy. That would not only be illogical and absurd
but would also violate elementary rules of justice and
fair play. In sum, PDCP has not yet effectively availed of
and fully exhausted its remedy.
Note:
The Supreme Court stated the present rule in
this case. If the debtor fails (or unjustly refuses) to pay
his debt when it falls due and the debt is secured by a
mortgage and by a check, the creditor has three options
against the debtor and the exercise of one will bar the
exercise of the others. He may pursue either of the
three but not all or a combination of them.
First, the creditor may file a collection suit
against the debtor. This will open up all the properties of
the debtor to attachment and execution, even the
mortgaged property itself. Second, the creditor may opt
to foreclose on the mortgaged property. In case the debt
is not fully satisfied, he may sue the debtor for
deficiency judgment (not a collection case for the whole
indebtedness), in which case, all the properties of the
debtor, other than the mortgaged property, are again
opened up for the satisfaction of the deficiency. Lastly,
the creditor may opt to sue the debtor for violation of BP
22 if the checks securing the obligation bounce. Circular
57-97 and Section 1(b), Rule 111 of the Rules of Court
both provide that the criminal action for violation of BP
22 shall be deemed to necessarily include the
corresponding civil action, i.e., a collection suit. No
reservation to file such civil action separately shall be
allowed or recognized.
Del Rosario vs Far East Bank and Trust Company
(2007)
Facts: Petitioners a Complaint for sum of money against
Private Development Corporation of the Philippines
(PDCP) and Far East Bank and Trust Company
(FEBTC) before the RTC, Makati, Branch 132, docketed
as Civil Case No. 94-1610, mainly to recover the
payment of P5.3 million – P4.335 million to PDCP,
and P965,000 to FEBTC (the “Civil Case No. 94-1610”).
After the trial, the RTC-Makati rendered a Decision
ordering PDCP to pay petitioners the sum of P4.035
million, to bear interest at 12% per annum from April
25, 1994 until fully paid. As regards FEBTC, the trial
court dismissed it for lack of cause of action. The parties
appealed to the Court of Appeals (CA), which ruled that
the party bound to refund the excess payment of P5
million was FEBTC as it received the overpayment.
Noting, however, that DATICOR claimed in its complaint
only the amount of P965,000 from FEBTC, the CA held
that it could not grant a relief different from or in excess
of that prayed for. The CA Decision became final and
executory.
Subsequently, petitioners filed before the RTC
of Makati a Complaint against FEBTC to recover the
balance of the excess payment of P4.335 million. The
case was docketed as Civil Case No. 00-540, the
precursor of the present case and raffled to Branch 143
of the RTC, which dismissed the complaint on the
ground of res judicata and splitting of cause of action. It
recalled that petitioners had filed Civil Case No. 94-1610
to recover the alleged overpayment both from PDCP and
FEBTC and to secure the cancellation and release of
their mortgages on real properties, machinery and
equipment; that when said case was appealed, the CA,
in its Decision, ordered PDCP to release and cancel the
mortgages and FEBTC to pay P965,000 with interest,
which Decision became final and executory on November
23, 1999; and that a Notice of Satisfaction of Judgment
between petitioners and FEBTC was in fact submitted on
August 8, 2000, hence, the issue between them was
finally settled under the doctrine of res judicata.
Issue: Whether or not the second Complaint docketed
as Civil Case No. 00-540 was correctly dismissed on the
ground of splitting of causes of action.
Held: Yes. There is a splitting of causes of action in this
case. The Supreme Court noted that in the two cases,
petitioners imputed to FEBTC the same alleged wrongful
act of mistakenly receiving and refusing to return an
amount in excess of what was due it in violation of their
right to a refund. The same facts and evidence
presented in the first case, Civil Case No. 94-1610, were
the very same facts and evidence that petitioners
presented in Civil Case No. 00-540.
Notably, the same facts were also pleaded by
the parties in support of their allegations for, and
defenses against, the recovery of the P4.335 million.
Petitioners, of course, plead the CA Decision as basis for
their subsequent claim for the remainder of their
overpayment. It is well established, however, that a
party cannot, by varying the form of action or adopting
a different method of presenting his case, or by pleading
justifiable circumstances as herein petitioners are doing,
escape the operation of the principle that one and the
same cause of action shall not be twice litigated.
The Supreme Court finds well-taken then the
pronouncement of the court a quo that to allow the re-
litigation of an issue that was finally settled as between
petitioners and FEBTC in the prior case is to allow the
splitting of a cause of action, a ground for dismissal
under Section 4 of Rule 2 of the Rules of Court reading:
SEC. 4. Splitting of a single cause of
action; effect of. – If two or more suits are
instituted on the basis of the same cause of
action, the filing of one or a judgment
upon the merits in any one is available as
a ground for the dismissal of the others.1
This rule proscribes a party from dividing a
single or indivisible cause of action into several parts or
claims and instituting two or more actions based on
it. Because the plaintiff cannot divide the grounds for
recovery, he is mandated to set forth in his first action
every ground for relief which he claims to exist and upon
which he relies; he cannot be permitted to rely upon
them by piecemeal in successive actions to recover for
the same wrong or injury.
Clearly then, the judgment in Civil Case No.
94-1610 operated as a bar to Civil Case No. 00-540,
following the above-quoted Section 4, Rule 2 of the
Rules of Court.
Petitioners were sternly reminded that both the
rules on res judicata and splitting of causes of action are
based on the salutary public policy against unnecessary
multiplicity of suits – interest reipublicae ut sit finis
litium. Re-litigation of matters already settled by a
1 Emphasis supplied.
Page 16
Civil Procedure
ESGUERRA NOTES
court's final judgment merely burdens the courts and
the taxpayers, creates uneasiness and confusion, and
wastes valuable time and energy that could be devoted
to worthier cases.
CGR Corporation vs. Treyes, Jr. (2007)
Facts: Petitioners claimed to have occupied 37.3033
hectares of public land in Barangay Bulanon, Sagay City,
Negros Occidental even before the notarized separate
Fishpond Lease Agreements in their respective favor
were approved in October 2000 by the Secretary of
Agriculture for a period of twenty-five (25) years or until
December 31, 2024.
Respondent Ernesto L. Treyes, Jr. allegedly
forcibly and unlawfully entered the leased properties and
once inside barricaded the entrance to the fishponds, set
up a barbed wire fence along the road going to
petitioners’ fishponds, and harvested several tons of
milkfish, fry and fingerlings owned by petitioners.
Petitioners was thus prompted to file with the
Municipal Trial Court (MTC) in Sagay City separate
complaints for Forcible Entry With Temporary
Restraining Order And/Or Preliminary Injunction And
Damages, docketed as Civil Case Nos. 1331, 1332 and
1333, against respondent.
In a separate move, petitioners filed in March
2004 with the Bacolod RTC a complaint for
damages against respondent, docketed as Civil Case No,
04-12284. The Bacolod RTC dismissed petitioners’
complaint for damages on the ground of prematurity.
Issue: Whether or not the dismissal of the petitioner’s
complaint for damages, filed after the ejectment case, is
correct.
Held: No. The Court ruled that petitioners’ claim for
damages have no direct relation to their loss of
possession of the premises. It had to do with
respondents alleged harvesting and carting away several
tons of milkfish and other marine products in their
fishponds,ransacking and destroying of a chapel built by
petitioner CGR Corporation, and stealing religious
icons and even decapitating the heads of some of
them, after the act of dispossession had occurred.
Surely, one of the elements of litis pendentia -
that the identity between the pending actions, with
respect to the parties, rights asserted and reliefs prayed
for, is such that any judgment rendered on one action
will, regardless of which is successful, amount
to res judicata in the action under consideration - is not
present, hence, it may not be invoked to dismiss
petitioners complaint for damages.
Res judicata may not apply because the court
in a forcible entry case has no jurisdiction over claims
for damages other than the use and occupation of the
premises and attorneys fees.
Neither may forum-shopping justify a dismissal
of the complaint for damages, the elements
of litis pendentia not being present, or where a final
judgment in the forcible entry case will not amount
to res judicata in the former.
Petitioners filing of an independent action for
damages other than those sustained as a result of their
dispossession or those caused by the loss of their use
and occupation of their properties could not thus be
considered as splitting of a cause of action.
Joseph v. Bautista (1989)
Facts: Petitioner filed a complaint for damages against
respondent Patrocinio Perez, as owner of the cargo
truck, based on a breach of contract of carriage and
against respondents Antonio Sioson and Lazaro
Villanueva, as owner and driver, respectively, of the
pick-up truck, based on quasi-delict.
Consequently, respondents Sioson, Pagarigan,
Cardeno and Villanueva filed a Motion to Exonerate and
Exclude Defs/ Cross defs. Alberto Cardeno, Lazaro
Villanueva, Antonio Sioson and Jacinto Pagarigan on the
Instant Case, alleging that respondents Cardeno and
Villanueva already paid P 7,420.61 by way of damages
to respondent Perez, and alleging further that
respondents Cardeno, Villanueva, Sioson and Pagarigan
paid P 1,300.00 to petitioner by way of amicable
settlement.
Thereafter, respondent Perez filed his motion
to dismiss premised on the fact that the release of claim
executed by petitioner in favor of the other respondents
inured to his benefit, considering that all the
respondents are solidarity liable to herein petitioner.
RTC dismissed the case against Perez. Hence, this
petition.
Issue:WON the judgment on the compromise
agreement under the cause of action based on quasi-
delict is a bar to the cause of action for breach of
contract of carriage
Held: YES. The trial court was, therefore, correct in
holding that there was only one cause of action involved
although the bases of recovery invoked by petitioner
against the defendants therein were not necessarily
Identical since the respondents were not identically
circumstanced. However, a recovery by the petitioner
under one remedy necessarily bars recovery under the
other. This, in essence, is the rationale for the
proscription in our law against double recovery for the
same act or omission which, obviously, stems from the
fundamental rule against unjust enrichment.
A cause of action is understood to be the delict
or wrongful act or omission committed by the defendant
in violation of the primary rights of the plaintiff. It is
true that a single act or omission can be violative of
various rights at the same time, as when the act
constitutes juridically a violation of several separate and
distinct legal obligations. However where there is only
one delict or wrong, there is but a single cause of action
regardless of the number of rights that may have been
violated belonging to one person.
The singleness of a cause of action lies in the
singleness of the- delict or wrong violating the rights of
one person. Nevertheless, if only one injury resulted
from several wrongful acts, only one cause of action
arises. In the case at bar, there is no question that the
petitioner sustained a single injury on his person. That
vested in him a single cause of action, albeit with the
Page 17
Civil Procedure
ESGUERRA NOTES
correlative rights of action against the different
respondents through the appropriate remedies allowed
by law.
The respondents having been found to be
solidarity liable to petitioner, the full payment made by
some of the solidary debtors and their subsequent
release from any and all liability to petitioner inevitably
resulted in the extinguishment and release from liability
of the other solidary debtors, including herein
respondent Patrocinio Perez.
Progressive Development Corporation, Inc., v. CA
(1999)
Facts: Petitioner leased to private respondent Westin
Seafood Market, Inc., a parcel of land with a commercial
building. Private respondent failed to pay rentals despite
several demands by petitioner. This constituted breach
of their contract; thus, pursuant to the express authority
granted under the lease agreement, petitioner
repossessed the leased premises. Private respondent
filed with the MeTC of QC a complaint against petitioner
for forcible entry with damages and a prayer for a
temporary restraining order and/or writ of
preliminary injunction. At the continuation of the hearing
on the issuance of a writ preliminary mandatory
injunction, the parties agreed, among others, that
private respondent would deposit money to guarantee
the payment of its back rentals. This agreement was
incorporated in the order of the court which in effect
terminated for all intents and purposes the incident on
the issuance of a preliminary writ of injunction.
Private respondent did not comply with its
undertaking to deposit. Instead, with the forcible entry
case still pending with the MeTC, private respondent
instituted another action for damages against petitioner
with the RTC of QC.
Petitioner filed a motion to dismiss the damage
suit on the ground of litis pendencia and forum
shopping. Instead of ruling on the motion, RTC issued
an order archiving the case pending the outcome of the
forcible entry case being heard at the MeTC for the
reason that "the claim for damages is principally
anchored on whether or not the defendants (petitioner
herein) have committed forcible entry.
Before petitioner's motion to dismiss could be
resolved, private respondent filed with the RTC an
amended complaint for damages and an Urgent Ex-Parte
Motion for the Issuance of a TRO and Motion for the
Grant of a Preliminary Prohibitory and Preliminary
Mandatory Injunction. On the very same day, Judge
Santiago issued an order (a) denying petitioner's motion
to dismiss, (b) admitting private respondent's amended
complaint, and (c) granting private respondent's
application for a temporary restraining order against
petitioner.
Thus, petitioner filed with the Court of Appeals a
special civil action for certiorari. But the Court of
Appeals dismissed the petition due to the failure of
petitioner to file a motion for reconsideration. It also
found that the elements of litis pendencia were lacking
to justify the dismissal of the action for damages with
the RTC because despite the pendency of the forcible
entry case with the MeTC the only damages recoverable
thereat were those caused by the loss of the use and
occupation of the property and not the kind of damages
being claimed before the RTC which had no direct
relation to loss of material possession. It clarified that
since the damages prayed for in the amended complaint
with the RTC were those caused by the alleged high-
handed manner with which petitioner reacquired
possession of the leased premises and the sale of
private respondents movables found therein, the RTC
and not the MeTC had jurisdiction over the action of
damages.[7]
Petitioner filed the instant petition for review
on certiorari against the CA claiming that that the trial
judge did not act with grave abuse of discretion in taking
cognizance of the action for damages and injunction
despite the pendency of the forcible entry case with the
MeTC; and, (c) ruling that private respondent did not
commit forum shopping since the causes of action
before the RTC and MeTC were not identical with each
other.
Issue: WON the action for damages filed with the RTC
should be dismissed on the ground of pendency of
another action for forcible entry and damages earlier
filed by the same lessee against the same lessor before
the MeTC.
Held: YES. The restoration of possession and demand
for actual damages in the case before the MeTC and the
demand for damages with the RTC both arise from the
same cause of action, i.e., the forcible entry by
petitioner into the leased premises.
Section 1 of Rule 70 of the Rules of Court provides
that any person deprived of the possession of any land
or building by force, indimidation, threat, strategy or
stealth, or against whom the possession of any land or
building is unlawfully withheld, may bring an action in
the proper Municipal Trial Court against the person or
persons unlawfully withholding or depriving of
possession, together with damages and costs. The
mandate under this rule is categorical: that all cases for
forcible entry or unlawful detainer shall be filed before
the Municipal Trial Court which shall include not only the
plea for restoration of possession but also all claims for
damages and costs arising therefrom. Otherwise
expressed, no claim for damages arising out of forcible
entry or unlawful detainer may be filed separately and
independently of the claim for restoration of possession.
This is consistent with the principle laid down in
Sec. 1, par. (e), of Rule 16 of the Rules of Court which
states that the pendency of another action between the
same parties for the same cause is a ground for
dismissal of an action.
Res adjudicata requires that there must be
between the action sought to be dismissed and the other
action the following elements:
a. identity of parties or at least such as
representing the same interest in both
actions;
b. identity of rights asserted and relief prayed for,
the relief being founded on the same facts;
and,
c. the identity in the two (2) preceding particulars
should be such that any judgment which may
be rendered on the other action will,
regardless of which party is successful,
amount to res adjudicata in the action under
consideration.
Page 18
Civil Procedure
ESGUERRA NOTES
It is likewise basic under Sec. 3 of Rule 2 of the
Revised Rules of Court, as amended, that a party may
not institute more than one suit for a single cause of
action. Under Sec. 4 of the same Rule, if two or
more suits are instituted on the basis of the same cause
of action, the filing of one or a judgment upon the
merits in any one is available as a ground for the
dismissal of the other or others. "Cause of action" is
defined by Sec. 2 of Rule 2 as the act of omission by
which a party violates a right of another. These premises
obtaining, there is no question at all that private
respondent's cause of action in the forcible entry
case and in the suit for damages is the alleged illegal
retaking of possession of the leased premises by the
lessor, petitioner herein, from which all legal reliefs
arise.
Restated in its bare essentials, the forcible
entry case has one cause of action, namely, the alleged
unlawful entry by petitioner into the leased premises out
of which three (3) reliefs (denominated by private
respondent as its causes of action) arose:
a. the restoration by the lessor (petitioner herein)
of the possession of the leased
premises to the lessee;
b. the claim for actual damages due to the losses
suffered by private respondent such as the
deterioration of perishable foodstuffs stored
inside the premises and the deprivation of the
use of the premises causing loss of expected
profits; and,
c. the claim for attorney's fees and costs of suit.
On the other hand, the complaint
for damages prays for a monetary award consisting of
(a) moral damages of P500,000.00 and exemplary
damages of another P500,000.00; (b) actual damages
ofP20,000,000.00 and compensatory damages
of P1,000,000.00 representing unrealized profits; and,
(c) P200,000.00 for attorney's fees and costs, all based
on the alleged forcible takeover of the leased premises
by petitioner. Since actual and compensatory damages
were already prayed for in the forcible entry case before
the MeTC, it is obvious that this cannot be relitigated in
the damage suit before the RTC by reason of res
adjudicata.
The other claims for moral and exemplary
damages cannot also succeed considering that these
sprung from the main incident being heard before the
MeTC. Jurisprudence is unequivocal that when a single
delict or wrong is committed - like the unlawful taking or
detention of the property of another - there is but one
single cause of action regardless of the number of rights
that may have been violated, and all such rights should
be alleged in a single complaint as constituting one
single cause of action. In a forcible entry case, the real
issue is the physical possession of the real property. The
question of damages is merely secondary or incidental,
so much so that the amount thereof does not affect
the jurisdiction of the court. In other words, the unlawful
act of a deforciant in taking possession of a piece of land
by means of force and intimidation against the rights of
the party actually in possession thereof is a delict or
wrong, or a cause of action that gives rise to two (2)
remedies, namely, the recovery of possession and
recovery of damages arising from the loss of possession,
but only to one action. For obvious reasons, both
remedies cannot be the subject of two (2) separate and
independent actions, one for recovery of possession
only, and the other, for the recovery of damages. That
would inevitably lead to what is termed in law as
splitting up a cause of action. In David v. de la Cruz we
observed -
Herein tenants have but one cause of action
against their landlord, their illegal ejectment or removal
from their landholdings, which cause of action however
entitles them to two (2) claims or remedies - for
reinstatement and damages. As both claims arise from
the same cause of action, they should be alleged in a
single complaint.
A claim cannot be divided in such a way that a part
of the amount of damages may be recovered in one case
and the rest, in another. In Bachrach v. Icarangal we
explained that the rule was aimed at preventing
repeated litigations between the same parties in regard
to the same subject of the controversy and to protect
the defendant from unnecessary vexation. Nemo debet
bis vexari pro una et eadem causa.
What then is the effect of the dismissal of the
other action? Since the rule is that all such rights should
be alleged in a single complaint, it goes without
saying that those not therein included cannot be the
subject of subsequent complaints for they are barred
forever. If a suit is brought for a part of a claim, a
judgment obtained in that action precludes the plaintiff
from bringing a second action for the residue of the
claim, notwithstanding that the second form of action is
not identical with the first or different grounds for relief
are set for the second suit. This principle not only
embraces what was actually determined, but also
extends to every matter which the parties might have
litigated in the case. This is why the legal basis upon
which private respondent anchored its second claim for
damages, i.e., Art. 1659 in relation to Art. 1654 of the
Civil Code, not otherwise raised and cited by private
respondent in the forcible entry case, cannot be
used as justification for the second suit for damages. We
note, not without some degree of displeasure, that by
filing a second suit for damages, private respondent was
not only able to press a claim for moral and exemplary
damages which by its failure to allege the same in its
suit before the MeTC foreclosed its right to sue on it, but
it was also able to obtain from the RTC, by way
of another temporary restraining order, a second
reprieve from an impending public auction sale of its
movables which it could not anymore secure from the
MeTC before which the matter of the issuance of a
preliminary writ of injunction was already closed.
The foregoing discussions provide sufficient
basis to petitioner's charge that private respondent and
its counsel in the trial courts
committed forum shopping. In Crisostomo v. Securities
and Exchange Commission we ruled -
There is forum-shopping whenever, as a result of an
adverse opinion in one forum, a party seeks a favorable
opinion (other than by appeal or certiorari) in
another. The principle applies x x x with respect to suits
filed in the courts x x x in connection with litigations
commenced in the court x x x in anticipation of an
unfavorable x x x ruling and a favorable case where the
court in which the second suit was brought, has no
jurisdiction.
Page 19
Civil Procedure
ESGUERRA NOTES
This Court likewise elucidated in New Pangasinan
Review, Inc. v. National Labor Relations
Commission that there is forum shopping when the
actions involve the same transactions, the same
essential facts and circumstances. The reason behind
the proscription of forum shopping is obvious. This
unnecessarily burdens
our courts with heavy caseloads, unduly taxes the
manpower and financial resources of the judiciary and
trifles with and mocks our judicial processes, thereby
adversely affecting the efficient administration of
justice. This condemnable conduct has prompted the
Court to issue circulars ordering among others that a
violation thereof shall be cause for the dismissal of the
case or cases without prejudice to the taking of
appropriate action against the counsel or party
concerned.
IV. Remedies against splitting a single cause
of action
There are two remedies against splitting a single cause
of action, namely:
(a) by filing a motion to dismiss on the
ground of litis pendentia (Section 1(e),
Rule 16, Rules of Court), or res judicata
(Section 1(f), Rule 16, Rules of Court);
and
(b) by filing an answer alleging either of the
aforementioned grounds as affirmative
defense.
V. Joinder of Causes of Action
By a joinder of actions, or more properly, a
joinder of causes of action is meant the uniting of two or
more demands or rights of action in one action, the
statement of more than one cause of action in a
declaration. It is the union of two or more civil causes of
action, each of which could be made the basis of a
separate suit, in the same complaint, declaration or
petition. A plaintiff may under certain circumstances join
several distinct demands, controversies or rights of
action in one declaration, complaint or petition. (Ada v.
Baylon, G.R. No. 182435, 13 August 2012)
The objectives of the rule or provision are to
avoid a multiplicity of suits where the same parties and
subject matter are to be dealt with by effecting in one
action a complete determination of all matters in
controversy and litigation between the parties involving
one subject matter, and to expedite the disposition of
litigation at minimum cost. The provision should be
construed so as to avoid such multiplicity, where
possible, without prejudice to the rights of the
litigants.(Id.)
Nevertheless, while parties to an action may
assert in one pleading, in the alternative or otherwise,
as many causes of action as they may have against an
opposing party, such joinder of causes of action is
subject to the condition, inter alia, that the joinder shall
not include special civil actions governed by special
rules. (Id.)
VI. Requisites for Joinder of Causes of Action:
1. The party joining the causes of action must
comply with the rules on joinder of parties.
Note: The following are elements for
a joinder parties (Sec. 6, rule 3):
a. A right to relief in respect to
or arising out of the same
transaction or series of
transaction; and
b. A common question of law
or fact.
2. The joinder shall not include special civil action
or actions governed by special rules.
3. Where the causes of action are between the
same parties but pertain to a different venues
or jurisdiction is with the regional trial court,
provided that:
a. One of the causes of
action falls within the
jurisdiction of the RTC;
and
b. The venue lies thereon.
4. Where the claims in the causes of action are
principally for recovery of money, the
aggregate amount claimed shall be the test of
jurisdiction (Totality Rule)
Sps. Perez vs. Hermano (2005)
Facts: Petitioners filed a civil case for Enforcement of
Contract and Damages with Prayer for the Issuance of a
Temporary Restraining Order (TRO) and/or Preliminary
Injunction against Zescon Land, Inc. and/or its President
Zenie Sales-Contreras, Atty. Perlita Vitan-Ele and
against respondent Antonio Hermano before the
Regional Trial Court (RTC) of Quezon City, Branch
224. Respondent filed his Answer with Compulsory
Counterclaim. Thereafter, respondent Hermano filed a
"Motion with Leave to Dismiss the Complaint or Ordered
Severed for Separate Trial" which was granted by the
trial court in an Order dated 28 February 2000.
Issue: Whether or not the trial court correctly ordered
that petitioners’ causes of action be severed.
Held: No. The Supreme Court ruled that the trial court
committed grave abuse of discretion in severing from
the complaint petitioners’ cause of action against
respondent.
While joinder of causes of action is largely left
to the option of a party litigant, Section 5, Rule 2 of our
present Rules allows causes of action to be joined in one
complaint conditioned upon the following requisites: (a)
it will not violate the rules on jurisdiction, venue and
joinder of parties; and (b) the causes of action arise out
of the same contract, transaction or relation between
the parties, or are for demands for money or are of the
same nature and character.
In this case, petitioners have adequately
alleged in their complaint that after they had already
agreed to enter into a contract to sell with Zescon Land,
Inc., through Sales-Contreras, the latter also gave them
other documents to sign, to wit: A Deed of Absolute Sale
Page 20
Civil Procedure
ESGUERRA NOTES
over the same properties but for a lower consideration,
two mortgage deeds over the same properties in favor
of respondent Hermano with accompanying notes and
acknowledgment receipts for Ten Million pesos
(P10,000,000) each. Petitioners claim that Zescon Land,
Inc., through Sales-Contreras, misled them to mortgage
their properties which they had already agreed to sell to
the latter.
From the averments in the complaint, it
becomes reasonably apparent that there are questions
of fact and law common to both Zescon Land, Inc., and
respondent Hermano arising from a series of transaction
over the same properties. There is the question of fact,
for example, of whether or not Zescon Land, Inc.,
indeed misled petitioners to sign the mortgage deeds in
favor of respondent Hermano. There is also the question
of which of the four contracts were validly entered into
by the parties. Note that under Article 2085 of the Civil
Code, for a mortgage to be valid, it is imperative that
the mortgagor be the absolute owner of the thing
mortgaged. Thus, respondent Hermano will definitely be
affected if it is subsequently declared that what was
entered into by petitioners and Zescon Land, Inc., was a
Contract of Sale (as evidenced by the Deed of Absolute
Sale signed by them) because this would mean that the
contracts of mortgage were void as petitioners were no
longer the absolute owners of the properties mortgaged.
Finally, there is also the question of whether or not
Zescon Land, Inc., as represented by Sales-Contreras,
and respondent Hermano committed fraud against
petitioners as to make them liable for damages.
Sps. Decena, v. Sps. Piquero (2005)
Facts: Spouses Danilo and Cristina Decena were the
owners of a house and lot in Parañaque City. The
petitioners and the respondents, the Spouses Pedro and
Valeria Piquero, executed a Memorandum of Agreement
in which the former sold the property to the latter for
P940,250.00 payable in six (6) installments via
postdated checks. The vendees forthwith took
possession of the property. It appears in the MOA that
the petitioners obliged themselves to transfer the
property to the respondents upon the execution of the
MOA with the condition that if two of the postdated
checks would be dishonored by the drawee bank, the
latter would be obliged to reconvey the property to the
petitioners. On May 17, 1999, the petitioners, then
residents of Malolos, Bulacan, filed a Complaint against
the respondents with the RTC Malolos, Bulacan, for the
annulment of the sale/MOA, recovery of possession of
the property, and damages.
The respondents filed a motion to dismiss on
the ground the said court had no jurisdiction over the
property subject matter of the action because it was
located in Paranaque City. They averred that the
principal action of the petitioners for the rescission of
the MOA, and the recovery of the possession of the
property is a real action and not a personal one; hence,
it should have been brought in the RTC of Paraaque City,
where the property subject matter of the action was
located, and not in the RTC of Malolos, Bulacan, where
the petitioners resided.
In opposition, the petitioners insisted that their
action for damages and attorneys fees is a personal
action and not a real action; hence, it may be filed in the
RTC of Bulacan where they reside. They averred that
while their second cause of action for the recovery of the
possession of the property is a real action, the same
may, nevertheless, be joined with the rest of their
causes of action for damages, conformably with Section
5(c), Rule 2 of the Rules of Court.
By way of reply, the respondents averred that
Section 5(c), Rule 2 of the Rules of Court applies only
when one or more of multiple causes of action falls
within the exclusive jurisdiction of the first level courts,
and the other or others are within the exclusive
jurisdiction of the RTC, and the venue lies therein.
RTC denied the motion to dismiss finding that
Section 5(c), Rule 2 was applicable. Upon motion for
reconsideration however, the court granted the motion
to dismiss and ordered the dismissal of the complaint. It
ruled that the principal action of the petitioners was a
real action and should have been filed in the RTC of
Paranaque City where the property subject matter of the
complaint was located. However, since the case was
filed in the RTC of Bulacan where the petitioners reside,
which court had no jurisdiction over the subject matter
of the action, it must be dismissed.
Issue: WON Section 5 (c) Rule 2 of the ROC is
applicable.
Held:No. After due consideration of the foregoing, we
find and so rule that Section 5(c), Rule 2 of the Rules of
Court does not apply. This is so because the petitioners,
as plaintiffs in the court a quo, had only one cause of
action against the respondents, namely, the breach of
the MOA upon the latter’s refusal to pay the first two
installments in payment of the property as agreed upon,
and turn over to the petitioners the possession of the
real property, as well as the house constructed thereon
occupied by the respondents. The claim for damages for
reasonable compensation for the respondents’ use and
occupation of the property, in the interim, as well as
moral and exemplary damages suffered by the
petitioners on account of the aforestated breach of
contract of the respondents are merely incidental to the
main cause of action, and are not independent or
separate causes of action. The action of the petitioners
for the rescission of the MOA on account of the
respondents’ breach thereof and the latter’s failure to
return the premises subject of the complaint to the
petitioners, and the respondents’ eviction therefrom is a
real action. As such, the action should have been filed in
the proper court where the property is located, namely,
in Parañaque City, conformably with Section 1, Rule 4 of
the Rules of Court. Since the petitioners, who were
residents of Malolos, Bulacan, filed their complaint in the
said RTC, venue was improperly laid; hence, the trial
court acted conformably with Section 1(c), Rule 16 of
the Rules of Court when it ordered the dismissal of the
complaint.
VII. Totality Rule
“Totality rule" under Section 33 (1) of B.P. Blg.
129 states 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."
Determination of Jurisdictional Amount in Relation to the
Totality Rule
Page 21
Civil Procedure
ESGUERRA NOTES
Under BP 129, as amended, and under R.A
7691, the jurisdictional amount excludes the following:
a. Interest
b. Damages of whether kind
c. Attorney’s Fees
d. Litigation expenses and cost
These matters, however, shall be included in
determining the fililng fees (Riano, p. 179)
“Damages of whatever kind” applies to cases
where the damages are merely incidental to or
consequence of the main cause of action (Adm. Circ. No.
09-94, June 14, 1994). Thus , if the main cause of
action is the recovery of damages, the amount of
damages should not be excluded in determining the
jurisdictional amount (Sante v. Claravall, G.R 173915,
February 22, 2010).
Flores vs. Mallare-Phillipps (1986)
Facts: Petitioner Remedio Flores (“petitioner”) filed a
Complaint against respondents Ignacio Binongcal
(“Binongcal”) and Fernando Calion (“Calion”) with the
Regional Trial Court, Baguio and Benguet Province (the
“lower court”). Said Complaint consists of two (2)
causes of action: (a) the first cause of action alleged in
the complaint was against respondent Ignacio Binongcal
for refusing to pay the amount of P11,643.00
representing cost of truck tires which he purchased on
credit from petitioner on various occasions from August
to October, 1981; and (b) the second cause of action
was against respondent Fernando Calion for allegedly
refusing to pay the amount of P10,212.00 representing
cost of truck tires which he purchased on credit from
petitioner on several occasions from March, 1981 to
January, 1982.
Respondent Binongcal filed a Motion to Dismiss
on the ground of lack of jurisdiction since the amount of
the demand was only P11,643.00 and under Section
19(8) of BP129 the regional trial court shall exercise
exclusive original jurisdiction if the amount of the
demand is more than twenty thousand pesos
(P20,000.00), and although another person, Calion, was
allegedly indebted to petitioner in the amount of
P10,212.00, his obligation was separate and distinct
from that of Calion, who joined Binongcal’s Motion to
Dismiss on the ground of lack of jurisdiction.
The lower court ordered the dismissal of
petitioner’s complaint. Hence, the appeal.
Issue: Whether or not the RTC dismissed for lack of
jurisdiction.
Held: Yes. The lower court correctly dismissed
petitioner’s Complaint for lack of jurisdiction. In cases of
permissive joinder of parties, whether as plaintiffs or as
defendants, under Section 6 of Rule 3, the total of all
the claims shall now furnish the jurisdictional test. If the
causes of action are separate and independent, their
joinder in one complaint is permissive and not
mandatory, and any cause of action where the amount
of the demand is twenty thousand pesos or less may be
the subject of a separate complaint filed with a
metropolitan or municipal trial court.
In the case at bar, the lower court correctly
held that the jurisdictional test is subject to the rules on
joinder of parties pursuant to Section 5 of Rule 2 and
Section 6 of Rule 3 of the Rules of Court and that, after
a careful scrutiny of the complaint, it appears that there
is a misjoinder of parties for the reason that the claims
against respondents Binongcal and Calion are separate
and distinct and neither of which falls within its
jurisdiction.
VII. Estoppel to Question Jurisdiction
Heirs of Bertuldo Hinog vs. Melicor (2005)
Facts: Private respondents own a parcel of land. They
allowed Bertuldo Hinog to use a portion of the said
property for a period of ten years and construct thereon
a small house. After the expiration of the ten-year
period, they demanded the return of the occupied
portion and removal of the house constructed thereon
but Hinog refused and instead claimed ownership.
Private respondents filed a complaint for “Recovery of
Ownership and Possession, Removal of Construction and
Damages”against Hinog. Trial ensued but Hinog died
without completing his evidence. New counsel appeared
for the deceased and filed a motion to expunge the
complaint from the record and nullify all court
proceedings on the ground that private respondents
failed to specify the amount of damages claimed so as to
pay the correct docket fees and further alleged that the
private respondents failed to pay the correct docket fee
since the main subject matter of the case cannot be
estimated as it is for recovery of ownership, possession
and removal of construction. Private respondents
opposed. While the trial court ordered the complaint to
be expunged from the records, it held however that
upon the complete payment of such fees, the Court may
take appropriate action in the light of the ruling in the
case of Manchester Development Corporation vs. Court
of Appeals.
Thereafter, the private respondents, upon
payment of deficiency docket fee, filed a manifestation
with prayer to reinstate the case. Despite petitioners’
opposition, the trial court issued the assailed Order
reinstating the case.
Issue: Whether or not the trial court correctly
reinstated the complaint upon the payment of deficiency
docket fees.
Held: Yes. The Supreme Court ruled that the
reinstatement of the complaint was just and proper
considering that the cause of action of private
respondents, being a real action, prescribes in thirty
years, and private respondents did not really intend to
evade the payment of the prescribed docket fee but
simply contend that they could not be faulted for
inadequate assessment because the clerk of court made
no notice of demand or reassessment. They were in
good faith and simply relied on the assessment of the
clerk of court.
While the payment of the prescribed docket fee
is a jurisdictional requirement, even its non-payment at
the time of filing does not automatically cause the
dismissal of the case, as long as the fee is paid within
the applicable prescriptive or reglementary period, more
so when the party involved demonstrates a willingness
to abide by the rules prescribing such payment. Thus,
when insufficient filing fees were initially paid by the
plaintiffs and there was no intention to defraud the
government, the Manchester rule does not apply.
Page 22
Civil Procedure
ESGUERRA NOTES

The Supreme Court held that the Manchester (c) Corporations, partnerships
rule has been modified in Sun Insurance Office, Ltd. and associations for private
(SIOL) vs. Asuncion, which defined the following interest or purpose to which
guidelines involving the payment of docket fees: the law grants a juridical
personality, separate and
1. It is not simply the filing of the complaint or distinct from that of each
appropriate initiatory pleading, but the shareholder, partner or
payment of the prescribed docket fee, which member.
vests a trial court with jurisdiction over the
subject-matter or nature of the action. Where 3. Entities authorized by law
the filing of the initiatory pleading is not
accompanied by payment of the docket fee, o One need not be or juridical person to be
the court may allow payment of the fees within a party to a civil action. As long as an
a reasonable time but in no case beyond the entity is authorized by law to be a party,
applicable prescriptive or reglementary period. such entity may sue or be sued or both.

2. The same rule applies to permissive o The following are examples of entities
counterclaims, third-party claims and similar authorized by law to be parties (W. B.
pleadings, which shall not be considered filed Riano, Civil Procedure: A Restatement for
until and unless the filing fee prescribed the Bar, 2009 ed., p. 212):
therefor is paid. The court may also allow
payment of said fee within a reasonable time a. Under Sec. 21 of the Corporation
but also in no case beyond its applicable Code of the Philippines, a
prescriptive or reglementary period. corporation by estoppel is
precluded from denying its existence
3. Where the trial court acquires jurisdiction over and the members thereof can be
a claim by the filing of the appropriate pleading sued and be held liable as general
and payment of the prescribed filing fee but, partners.
subsequently, the judgment awards a claim
not specified in the pleading, or if specified the b. A contract of partnership having a
same has been left for determination by the capital of three thousand pesos
court, the additional filing fee therefor shall or more but which fails to comply
constitute a lien on the judgment. It shall be with the registration
the responsibility of the Clerk of Court or his requirements is nevertheless liable
duly authorized deputy to enforce said lien and as a partnership to third persons (Art.
assess and collect the additional fee. 1772 in relation to Art. 1768 of the
New Civil Code).

Rule 3 Articles 1772 and 1768 of the New Civil Code

PARTIES TO CIVIL ACTIONS provide:

Article 1772. Every

I. WHO MAY BE PARTIES
 Only natural or juridical persons, or entities
authorized by law may be parties in a civil
action (Rule 3, Sec. 1).
1. Natural Persons
o A natural person is a human
being, which is a product of
procreation (Jurado, Civil Law
Reviewer, 21st ed., p. 62).
2. Juridical Persons
o A juridical person exists only in
contemplation of law, and is a
product of legal fiction (Jurado,
supra.).
o The juridical persons who may
be parties to a civil action are
those enumerated in Article 44
of the New Civil Code, namely:
(a) The State and its political
subdivisions;
(b) Other corporations,
institutions and entities for
public interest or purpose,
created by law; and
contract of partnership having a
capital of three thousand pesos or
more, in money or property, shall
appear in a public instrument, which
must be recorded in the Office of the
Securities and Exchange Commission.
Article 1768. The
partnership has a juridical personality
separate and distinct from that of
each of the partners, even in case of
failure to comply with the
requirements of Article 1772, first
paragraph.
c. The estate of a deceased person may be a
party to an action (Limjoco v. Intestate Estate
of Fragante, 8 Phil. 776; Nazareno v. Court of
Appeals, 343 SCRA 637).
d. A legitimate labor organization may sue
and be sued in its registered name (Labor
Code, Article 242[e]).
e. The Roman Catholic Church may be a party
and as to its properties, the archbishop or
diocese to which they belong may be a party
(Barlin v. Ramirez, 7 Phil. 47; Versoza v.
Fernandez, 49 Phil. 627).

Page 23
Civil Procedure
ESGUERRA NOTES
f. A dissolved corporation may prosecute and
defend suits by or against it provided that the
suits (i) occur within three (3) years after its
dissolution, and (ii) the suits are in connection
with the settlement and closure of its affairs
(Corporation Code, Sec. 122).
 The term "plaintiff" may refer to the claiming
party, the counter-claimant, the cross-
claimant, or the third (fourth, etc.) — party
plaintiff (Rule 3, Sec. 1).
 The term "defendant" may refer to the
original defending party, the defendant in a
counter-claim, the cross-defendant, or the
third (fourth, etc.) — party defendant (Rule 3,
Sec. 1).
 Remedy when a party impleaded is not
authorized to be a party (Riano, supra.)
o Where the plaintiff is not a natural or
a juridical person or an entity
authorized by law, a motion to
dismiss may be filed on the ground
that “the plaintiff has no legal
capacity to sue” (Rule, 16, Sec.1[d]).
o Where it is the defendant who is not
any of the above, the complaint may
be dismissed on the ground that the
“pleading asserting the claim states
no cause of action” (Rule 16, Sec.
1[g]), because there cannot be a
cause of action against one who
cannot be a party to a civil action.
o If the plaintiff has capacity to sue but
he is not the “real party in interest,”
he ground for dismissal is “failure to
state a cause of action” (Aguila v.
Court of Appeals, 319 SCRA 246;
Balagtas v. Court of Appeals, 317
SCRA 69), not “lack of legal capacity
to sue.”
II. CLASSIFICATION OF PARTIES
A.Real Party in Interest
Definition - 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 (Rule 3, Section 2).
Unless otherwise authorized by law or the Rules of
Court, every action must be prosecuted or defended
in the name of the real party in interest (Rule 3,
Section 2).
The determination of who the real party-in-interest
is requires going back to the elements of a cause of
action. A cause of action involves the existence of a
right and a violation of such right. Evidently, the
owner of the right violated stands to be the real
party in interest as plaintiff and the person
responsible for the violation is the real party in
interest as defendant (Lee v. Romillo, 161 SCRA
589).
a. Lack of Personality to Sue
Evangelista vs. Santiago (2005)
Facts: Petitioners filed with the trial court an action for
declaration of nullity of respondents certificates of the
title of parcels of land which Petitioners allegedly
occupied and possessed. They claimed that the OCT was
fake and spurious. Respondent filed his Answer and
claimed that the petitioners had no legal capacity to
file the Complaint since such an action will result in the
reversion of the ownership of the Subject Property to
the State and hence it is the State which must bring the
action; thus, the Complaint stated no cause of action.
The trial court decided against the Petitioners. The
trial court ratiocinated that the Petitioners did not have
the legal standing to sue because it is the State who
must file the corresponding case of annulment of illegal
title through the Office of the Solicitor General. The
Court of Appeals affirmed the Order of the trial court
and denied petitioners Motion for Reconsideration.
ISSUE: WON the petitioners had the legal personality to
file the action?
HELD: No, they had no legal personality to sue. The
Court believes that the trial court rightfully dismissed
petitioners Complaint, but for reasons different from
those relied upon by the RTC and the CA.
No legal capacity v. No COA
Before anything else, it should be clarified that the
plaintiff has no legal capacity to sue and the pleading
asserting the claim states no cause of action are two
different grounds for a motion to dismiss or are two
different affirmative defenses.
Columbia Pictures, Inc. v. CA: Lack of legal
capacity to sue means that the plaintiff is not in the
exercise of his civil rights, or does not have the
necessary qualification to appear in the case, or does
not have the character or representation he claims. On
the other hand, a case is dismissible for lack of
personality to sue upon proof that the plaintiff is not the
real party-in-interest, hence grounded on failure to state
a cause of action. The term "lack of capacity to sue"
should not be confused with the term "lack of
personality to sue." While the former 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, the latter refers to the fact that the plaintiff is not
the real party- in-interest. Correspondingly, the first can
be a ground for a motion to dismiss based on the ground
of lack of legal capacity to sue; whereas the second can
be used as a ground for a motion to dismiss based on
the fact that the complaint, on the face thereof,
evidently states no cause of action.
Despite the allegation of the respondent that
petitioners had no legal capacity to sue, this Court
may assume that the respondent is raising the
affirmative defense that the Complaint filed by the
petitioners before the trial court stated no cause of
action because the petitioners lacked the personality to
sue, not being the real party-in-interest. It is the
respondent’s contention that only the State can file an
action for annulment of his certificates of title, since
Page 24
Civil Procedure
ESGUERRA NOTES
such an action will result in the reversion of the
ownership of the Subject Property to the State.
In their instant Petition, petitioners further averred
that rather than an action for nullity of respondent’s
certificates of title, theirs was more appropriately an
action to remove a cloud on or to quiet their title over
the Subject Property.
No legal or equitable title
Even as this Court agrees with the petitioners that
their action was one for removal of a cloud on or
quieting of title, it does arrive at the same conclusion as
the RTC and the CA that petitioners had no personality
to file the said action, not being the parties-in-interest.
The plaintiff, in an action to remove a cloud on or
to quiet title, must have legal or equitable title to, or
interest in, the real property which is the subject matter
of the action. Petitioners failed to establish in their
Complaint that they had any legal or equitable title to,
or legitimate interest in, the Subject Property so as to
justify their right to file an action to remove a cloud on
or to quiet title.
Therefore, without legal or equitable title to the
Subject Property, the petitioners lacked the personality
to file an action for removal of a cloud on, or quieting of,
title and their Complaint was properly dismissed for
failing to state a cause of action.
Excellent Quality Apparel, Inc. v. Win Multi Rich
Builders, Inc. (2009)
Facts: This case involves a claim for a sum of money
which arose from a construction dispute.
Petitioner Excellent Quality Apparel, Inc. entered into a
contract with Multi-Rich Builders (Multi-Rich)
represented by Wilson G. Chua (Chua), its President and
General Manager, for the construction of a garment
factory. The construction of the factory building was
completed on 27 November 1996.
Respondent Win Multi-Rich Builders, Inc. (Win) was
incorporated with the Securities and Exchange
Commission (SEC) on 20 February 1997 with Chua as its
President and General Manager. On 26 January 2004,
Win filed a complaint for a sum of money against
petitioner and Mr. Ying amounting to P8,634,448.20
Petitioner also denied owing anything to Win, as it had
already paid all its obligations to it.
In the hearing held on 10 February 2004, the counsel of
Win moved that its name in the case be changed from
"Win Multi-Rich Builders, Inc." to "Multi-Rich Builders,
Inc." In the Reply filed by petitioner, it moved to dismiss
the case since Win was not the contractor and neither a
party to the contract, thus it cannot institute the case.
Petitioner obtained a Certificate of Non-Registration of
Corporation/Partnership from the SEC which certified
that the latter did not have any records of a "Multi-Rich
Builders, Inc." Moreover, Win in its Rejoinder did not
oppose the allegations in the Reply. Win admitted that it
was only incorporated on 20 February 1997 while the
construction contract was executed on 26 March 1996.
Likewise, it admitted that at the time of execution of the
contract, Multi-Rich was a registered sole proprietorship
and was issued a business permit by the Office of the
Mayor of Manila.
RTC granted the motion of Win for EQA to deposit the
amount. Upon deposit, Win move for the release of the
garnished money, which was vehemently objected to by
the Petitioners but nevertheless granted by the RTC.
Petitioner filed a petition for certiorari before the CA. CA
annulled the two orders of the RTC but ruled that the
RTC has jurisdiction over the case.
Issue:WON Win has a legal personality to institute the
present case.
Held:No, Win is NOT a real party in interest. A suit may
only be instituted by the real party in interest as defined
in Section 2, Rule 3 of the Rules of Court.
Win admitted that the contract was executed
between Multi-Rich and petitioner. It further admitted
that Multi-Rich was a sole proprietorship with a business
permit issued by the Office of the Mayor of Manila. A
sole proprietorship is the oldest, simplest, and most
prevalent form of business enterprise.31 It is an
unorganized business owned by one person. The sole
proprietor is personally liable for all the debts and
obligations of the business. In the case of Mangila v.
CA, we held that: … In fact, there is no law authorizing
sole proprietorships to file a suit in court…. A sole
proprietorship does not possess a juridical personality
separate and distinct from the personality of the owner
of the enterprise.
The original petition was instituted by Win,
which is a SEC-registered corporation. It filed a
collection of sum of money suit which involved a
construction contract entered into by petitioner and
Multi-Rich, a sole proprietorship. The counsel of Win
wanted to change the name of the plaintiff in the suit to
Multi-Rich. The change cannot be countenanced. The
plaintiff in the collection suit is a corporation. The name
cannot be changed to that of a sole proprietorship.
Again, a sole proprietorship is not vested with juridical
personality to file or defend an action.34
In order for a corporation to be able to file suit
and claim the receivables of its predecessor in business,
in this case a sole proprietorship, it must show proof
that the corporation had acquired the assets and
liabilities of the sole proprietorship. Win could have
easily presented or attached any document e.g., deed of
assignment which will show whether the assets,
liabilities and receivables of Multi-Rich were acquired by
Win. Having been given the opportunity to rebut the
allegations made by petitioner, Win failed to use that
opportunity. Thus, we cannot presume that Multi-Rich is
the predecessor-in-business of Win and hold that the
latter has standing to institute the collection suit.
b.Standing to Sue
He who is directly affected and whose interest is
immediate and substantial has the standing to sue.
Thus, a party must show a personal stake in the
outcome of the case or an injury to himself that can be
redressed by a favorable decision in order to warrant an
invocation of the court’s jurisdiction and justify the
Page 25
Civil Procedure
ESGUERRA NOTES

exercise of judicial power on his behalf. (Domingo vs. Judicial power is the power to hear and decide
Carague, 456 SCRA 450, 2005) cases pending between parties who have the right to
sue in courts of law and equity. Corollary to this dictum
is the principle of locus standi of a litigant. He who is
Domingo v. Carague (2005)
directly affected and whose interest is immediate and
Facts: Assailed in this petition for certiorari is the
substantial has the standing to sue. Thus, a party must
constitutionality or legality of Resolution No. 2002-05 of
show a personal stake in the outcome of the case or an
the Commission on Audit (COA) providing for
injury to himself that can be redressed by a favorable
Organizational Restructuring Plan.
decision in order to warrant an invocation of the court’s
jurisdiction and justify the exercise of judicial power on
Petitioners are retired Commissioners of COA his behalf.
and incumbent officers or employees of COA. The retired
Commissioners claim "to maintain a deep-seated abiding
Petitioners’ reliance upon our rulings
interest in the affairs of COA while these officers and
in Chavez, Agan, Jr., and Information Technology
employees claim that they were unceremoniously
Foundation is flawed:
divested of their designations/ranks as Unit Head, Team
Supervisor, and Team Leader upon implementation of
the COA Organizational Restructuring Plan without just  Chavez, we ruled that the petitioner has
cause and without due process, in violation of Civil legal standing since he is a taxpayer and
Service Law. Moreover, they were deprived of their his purpose in filing the petition is to
respective Representation and Transportation compel the Public Estate Authority (PEA)
Allowances (RATA), thus causing them undue financial to perform its constitutional duties. We
prejudice. held that these matters are of
transcendental public importance.
 Agan, Jr., we held that petitioners have
PETITIONERS: invoke Chavez v. Public Estates
legal standing as they have a direct and
Authority, Agan, Jr. v. Philippine International Air
substantial interest to protect. By the
Terminals Co., Inc., and Information Technology
implementation of the PIATCO contracts,
Foundation of the Philippines v. Commission on Elections
they stand to lose their source of
the subject matter of a case is a matter of public
livelihood, a property right zealously
concern and imbued with public interest, then this fact
protected by the Constitution.
alone gives them legal standing to institute the instant
 Information Technology Foundation, the
petition. Petitioners contend that the COA Organizational
nation’s political and economic future
Restructuring Plan is not just a mere reorganization but
virtually hangs in the balance, pending the
a revamp or overhaul of the COA, with a "spillover
outcome of the 2004 elections.
effect" upon its audit performance. This will have an
Accordingly, the award for the automation
impact upon the rest of the government bodies subject
of the electoral process was a matter of
to its audit supervision, thus, should be treated as a
public concern, imbued with public
matter of transcendental importance.
interest. Second, the individual
petitioners, as taxpayers, asserted a
OSG: Petitioners have no legal standing to file as they material interest in seeing to it that public
have not shown "a personal stake in the outcome of the funds are properly used.
case" or an actual or potential injury that can be
redressed by our favorable decision. Petitioners
As re the employees’, Matib, Pacpaco,
themselves admitted that "they do not seek any
Sanchez, and Sipi-An, allegations that they were
affirmative relief nor impute any improper or
demoted and unceremoniously divested of their previous
improvident act against the said respondents". Nor may
designations, deprived of their RATA; that they were
petitioners claim that as taxpayers, they have legal
relegated to being mere Team Members, entitled to only
standing since nowhere in their petition do they claim
a reimbursable transportation allowance; and that they
that public funds are being spent in violation of law or
were denied due process:
that there is a misapplication of the taxpayers’ money.

 Such averments lack merit. Actually, they

Issue:WON the petitioners have the legal standing to
were not demoted. Under the
impugn the validity of the COA Resolution
Administrative Code of 1987, a demotion
is the movement from one position to
Held: NO. Petitioners have not shown any direct and another involving the issuance of an
personal interest in the COA Organizational appointment with diminution in duties,
Restructuring Plan. There is no indication that they have responsibilities, status, or rank which may
sustained or are in imminent danger of sustaining some or may not involve reduction in salary.
direct injury as a result of its implementation. In fact, Here, there have been no new
they admitted that "they do not seek any affirmative appointments issued under the COA
relief nor impute any improper or improvident act Organizational Restructuring Plan.
against the respondents" and "are not motivated by any  Moreover, the change in their status from
desire to seek affirmative relief from COA or from COA auditors cannot be attributed to the
respondents that would redound to their personal COA Organizational Restructuring Plan but
benefit or gain." Clearly, they do not have any legal to the implementation of the Audit Team
standing to file the instant suit. Approach (ATAP), pursuant to COA
Resolution No. 96-305 dated April 16,
1996.

Page 26
Civil Procedure
ESGUERRA NOTES

 Matib, Pacpaco, Sanchez, and Sipi-An are Compulsory joinder of Indispensable Parties - The
not qualified to be Audit Team Leaders or joinder of indispensable parties is mandatory. Without
to receive fixed monthly RATA since none the presence of indispensable parties to the suit, the
of them holds the rank or position of State judgment of the court cannot attain real finality.
Auditor IV. But this does not mean that Strangers to a case are not bound by the judgment
they are not entitled to receive rendered by the court (Lucman v. Malawi, G.R. No.
reimbursable RATA if they are designated 159794, 19 December 2006).
as Audit Team Leaders. It is clear from
the text of the said COA Memorandum Dismissal For Failure To Implead an Indispensable
that the principle of non-diminution of Party
benefits has been upheld.
o Since the joinder of indispensable parties is
compulsory, the action should be dismissed
B.Representative Parties
when indispensable parties are not impleaded
of are not before the court. The absence of
Where the action is allowed to be prosecuted and
indispensable parties renders all subsequent
defended by a representative or someone acting in a
actions of the trial court null and void for want
fiduciary capacity, the beneficiary shall be included in
of authority to act not only as to the absent
the title of the case and shall be deemed to be the
parties but even as to those present (MWSS v.
real property in interest (Rule 3, Sec. 3).
Court of Appeals, 297 SCRA 287).
A representative may be a trustee of an expert trust,
o An outright dismissal of the action when
a guardian, an executor or administrator, or a party
indispensable parties are not impleaded is a
authorized by law or these Rules. An agent acting in
procedural error. Instead, parties may be
his own name and for the benefit of an undisclosed
dropped or added by the court on motion of
principal may sue or be sued without joining the
any party or on its own initiative at any stage
principal except when the contract involves things
of the action and on such terms as are just
belonging to the principal (Rule 3, Sec. 3).
(Rule 3, Sec. 11). It is when the order of the
court to implead an indispensable party goes
Oposa v. Factoran(1993)
unheeded may the case be dismissed. The
court is fully clothed with the authority to
Facts: This is a class suit brought by 44 children,
dismiss a complaint due to the fault of the
through their parents, claiming that they bring the case
plaintiff as when, among others, he does not
in the name of “their generation as well as those
comply with any order of the court (Rule 17,
generations yet unborn.” Aiming to stop deforestation, it
Sec. 3; Plasabas v. Court of Appeals, G.R. No.
was filed against the Secretary of the Department of
166519, 31 March 2009).
Environment and Natural Resources, seeking to have
him cancel all the timber license agreements (TLAs) in
Pascual v. Robles: In the Matter of the Heirship
the country and to cease and desist from accepting and
(Intestate Estates) of the Rodriguezes (2010)
approving more timber license agreements. The children
Facts: A petition for Declaration of Heirship and
invoked their right to a balanced and healthful ecology
Appointment of Administrator and Settlement of the
and to protection by the State in its capacity as parens
Estates of the Late Rodriguez (Hermogenes) and Antonio
patriae.. The petitioners claimed that the DENR
Rodriguez (Antonio) was filed before the RTC of Iriga
Secretary's refusal to cancel the TLAs and to stop
City.
issuing them was "contrary to the highest law of
humankind-- the natural law—and violative of plaintiffs'
right to self-preservation and perpetuation." The case Since nobody opposed the petition, the RTC
was dismissed in the lower court, invoking the law on entered a general default against the whole world,
non-impairment of contracts, so it was brought to the except the Republic of the Philippines. Thereafter, the
Supreme Court on certiorari. RTC rendered a Partial declaring Henry, Certeza and
Rosalina Rodriguez as heirs in the direct descending line
Issue:Did the children have the legal standing to file of the late Antonio.
the case?
Subsequently, six groups of oppositors entered
Held:Yes. The Supreme Court in granting the petition
their appearances, including respondent Jaime Robles
ruled that the children had the legal standing to file the
(Robles). The RTC issued an Order declaring Robles to
case based on the concept of “intergenerational
be an heir. However, the RTC flipped-flopped in its
responsibility”. Their right to a healthy environment
subsequent decisions but the latest decision reinstated
carried with it an obligation to preserve that
the original order declaring Henry, Certeza, and Rosalina
environment for the succeeding generations. In this, the
Rodriguez as the heirs.
Court recognized legal standing to sue on behalf of
future generations. Also, the Court said, the law on non-
impairment of contracts must give way to the exercise Robles then appealed but RTC denied the
of the police power of the state in the interest of public appeal. Robles filed a petition for review on certiorari
welfare. with the SC. SC referred the petition to the CA. The CA
rendered judgment annulling the Amended Decision of
C.Indispensable Parties the RTC. Nevertheless, Robles filed an appeal with this
Court assailing a portion of the CA Decision. SC denied
Definition – An indispensable party is a real party-in- the petition of Robles and the said Resolution became
interest without whom no final determination can be had final and executory.
of an action (Rule 3, Sec. 7).

Page 27
Civil Procedure
ESGUERRA NOTES
A petition for certiorari was filed before the SC
by petitioner Rene B. Pascual but Robles was not
impleaded. Thereafter, the SC rendered a decision.
Hence this petition assailing the decision which
was rendered without him being impleaded. Robles
contends that he is a party-in-interest who stands to be
adversely affected or injured or benefited by the
judgment in the instant case. Hence, the failure of
service upon him of a copy of the instant petition as well
as petitioner's memorandum, and the fact that he was
not required or given the opportunity to file his comment
or answer to the said petition nor served with any order,
resolution or any other process issued by this Court in
the instant petition, is a clear denial of his right to due
process.
In his Comment and Opposition, Pascual
contends that Robles has no legal standing to participate
in the instant petition. Petitioner argues that in an
original action for certiorari, the parties are the
aggrieved party against the lower court and the
prevailing party. Robles was never impleaded, because
he was not the prevailing party in the assailed Decision
of the CA as well as the questioned Order of the RTC.
Issue: WON Robles is an indispensable party in the
Petion for Certiorari before the SC.
Held: YES. Robles is an indispensable party. Petitioner
admitted in his Comment and Opposition to Robles'
Motion that in the instant petition he filed, only the CA
and the RTC were impleaded as respondents.
Section 5, Rule 65 of the Rules of Court provides:
Section 5. Respondents and costs in certain
cases. – When the petition filed relates to the acts or
omissions of a judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person, the
petitioner shall join as private respondent or
respondents with such public respondent or
respondents, the person or persons interested in
sustaining the proceedings in the court; and it
shall be the duty of such private respondents to
appear and defend, both in his or their own behalf
and in behalf of the public respondent or
respondents affected by the proceedings, and the
costs awarded in such proceedings in favor of the
petitioner shall be against the private respondents only,
and not against the judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person impleaded
as public respondent or respondents.
In Lotte Phil. Co., Inc. v. Dela Cruz,5 this Court
ruled as follows:
An indispensable party is a party-in-interest
without whom no final determination can be had of an
action, and who shall be joined either as plaintiffs or
defendants. The joinder of indispensable parties is
mandatory. The presence of indispensable parties is
necessary to vest the court with jurisdiction, which is
"the authority to hear and determine a cause, the right
to act in a case." Thus, without the presence of
indispensable parties to a suit or proceeding, judgment
of a court cannot attain real finality. The absence of an
indispensable party renders all subsequent actions 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.6
In the case at bar, Robles is an indispensable
party. He stands to be injured or benefited by the
outcome of the petition. Robles is interested in
sustaining the assailed CA Decision, considering that he
would benefit from such judgment. As such, his non-
inclusion would render the petition for certiorari
defective. Petitioner, thus, committed a mistake in
failing to implead Robles as respondent.
The rule is settled that the non-joinder of
indispensable parties is not a ground for the dismissal of
an action. The remedy is to implead the non-party
claimed to be indispensable. Parties may be added by
order of the court on motion of the party or on its own
initiative at any stage of the action and/or at such times
as are just. If petitioner refuses to implead an
indispensable party despite the order of the court, the
latter may dismiss the complaint/petition for the
plaintiff’s/petitioner's failure to comply therewith.
Based on the foregoing, and in the interest of
fair play, the Court finds it proper to set aside its
decision and allow Robles to file his comment on the
petition.
Limos v. Spouses Odones (2010)
Facts: Private respondents Sps Odones filed a complaint
for Annulment of Deed, Title and Damages against
petitioners Limos, Rosa delos Reyes and Sps Delos
Reyes before Tarlac RTC. The complaint alleged that
they are the owners of a 940 sq m land by virtue of an
Extrajudicial Succession of Estate and Sale dated Jan 29,
2004, executed by the surviving heirs of Donata
Lardizabal, in whom the original title was vested. After
registering the document of conveyance, they found out
that the OCT was cancelled and replaced by a TCT in the
petitioners’ name. Respondents sought the cancellation
of said TCTs on the ground that the Sps Lardizabal’s
signatures were forgeries.
In response, petitioners filed a Motion for Bill
of Particulars, which was denied, and in their answer
pleaded affirmative defenses one of which was the non-
joinder of the other heirs of Donata as
indispensable parties .
RTC & CA denied Motion to Set for Preliminary
Hearing on the Special and Affirmative Defenses
because respondents had already replied, hence this
petition for certiorari.
Issue: WON the affirmative defense of non-joinder of
indispensable parties is a ground for dismissal of action
Held: No. Non-joinder of indispensable parties is not a
ground for dismissal of an action. The remedy is to
implead the non-party claimed to be indispensable.
Parties may be added by order of the court on motion of
the party or on its own initiative at any stage of the
action and/or such times as are just. It is only when the
plaintiff refuses to implead an indispensable party
despite the order of the court, that the latter may
dismiss the complaint. In this case, no such order was
issued.
Page 28
Civil Procedure
ESGUERRA NOTES

On March 14, 2002, an Alias Writ of

Uy v. CA (2006) Execution was issued by CIAC and on the following day,
a Notice of Garnishment was served on private
Facts: The Heritage Memorial Park is a flagship project respondent.
of the Bases Conversion Development Authority (BCDA)
Private respondent HPMC then filed a petition
in Fort Bonifacio. To implement the project, the BCDA,
for Injunction/Prohibition before the Court of Appeals on
on September 9, 1994, entered into an agreement
the ground that CIAC had no jurisdiction over the
denominated as the Pool Formation Trust
subject matter since HPMC was not impleaded as a party
Agreement (PFTA) with the Philippine National Bank
thereby depriving it of its right to be heard. The
(PNB) and the Public Estates Authority (PEA). The BCDA
appellate court ruled in favor of respondent,
was designated as the Project Owner; PEA, the Project
Manager; and PNB as the Trustee.
Petitioners contention is that private
respondent HPMC is not a party-in-interest to the case
As project owner, the BCDA was tasked to sell
since it is a mere trustee of the construction and
the Heritage Park Investment Certificates to the public
development funds and would not be directly benefited
and buyers become certificate holders. The certificate
or injured by the outcome of the case.
gives the PNB the absolute legal and beneficial title
to Heritage Park in trust for the certificate holders. The
Private respondent contends that upon its
PNB, as trustee, shall protect the values of the assets in
incorporation and election of its Board of Trustees, it
the trust, receive and have custody over the proceeds
assumed ownership of the Heritage Park
from the sale of the certificates, administer the various
Project. Further, since it is a non-stock, non-profit
funds, including disbursements for project costs and
corporation, with the certificate holders as its members,
related expenses, turnover the Perpetual Care Fund to
any claim against the PEA is in reality a claim against all
the Successor Trustee, turnover custody over
the parties who pooled and contributed their resources
documents pertaining to the Heritage Park and the
for the project; hence, it is an indispensable party.
residual funds to BCDA, and turnover all the documents
and records to the Board of Trustees after completion of
Issue: WON HPMC a real party-in-interest or an
the project.
indispensable party
PEA, as project manager, is tasked to
Held: An indispensable party is one whose interest will
implement and complete the various engineering works
be affected by the courts action in the litigation, and
and improvements of Heritage Park.
without whom no final determination of the case can be
had. The partys interest in the subject matter of the suit
On November 20, 1996, PEA and the
and in the relief sought are so inextricably intertwined
petitioner, a single proprietorship doing business under
with the other parties that his legal presence as a party
the name and style of Edison Development and
to the proceeding is an absolute necessity.
Construction, executed a Landscaping and Construction
Agreement whereby the petitioner undertook to do all
Based on the Construction Agreement, PEA
the landscaping, including the construction of
entered into it in its capacity as Project Manager,
a terrasoleum of the Heritage Park. The Heritage Park
pursuant to the PFTA. According to the provisions of the
Executive Committee approved the agreement on May
PFTA, upon the formation of the HPMC, the PEA would
29, 1997.
turn over to the HPMC all the contracts relating to
the Heritage Park. At the time of the filing of the CIAC
Pursuant to Section 11.01 of the PFTA, in April
Case on May 31, 2001, PEA ceased to be the Project
1999, the certificate holders of the project organized
Manager of the Heritage Park Project, pursuant to
themselves into a non-stock, non-profit corporation, the
Section 11 of the PFTA. Through a Deed of
Heritage Park Management Corporation (HPMC), now
Assignment, PEA assigned its interests in all the existing
the private respondent herein.
contracts it entered into as the Project Manager
for Heritage Park to HPMC. As early as March 17, 2000,
In October 1999, alleging delay in the PEA officially turned over to HPMC all the documents and
construction of the projects and huge discrepancy equipment in its possession related to the Heritage Park
between the Accomplishment Report and the actual Project. Petitioner was duly informed of these incidents
physical accomplishment of petitioners construction firm, through a letter dated March 13, 2000. Apparently, as of
the Heritage Park Executive Committee terminated the the date of the filing of the CIAC Case, PEA is no longer
two construction contracts namely, the landscaping and a party-in-interest. Instead, it is now private respondent
nursery works, and the construction of the terrasoleum. HPMC, as the assignee, who stands to be benefited or
injured by the judgment in the suit. In its absence, there
cannot be a resolution of the dispute of the parties
On March 17, 2000, pursuant to the terms of before the court which is effective, complete or
the PFTA, HPMC assumed all the functions, duties and equitable.[ We thus reiterate that HPMC is an
responsibilities of the PEA, including those under an indispensable party.
assailed contract.
Does CIAC have jurisdiction over the dispute?
Section 4 of Executive Order No. 1008] is pertinent. It
On May 31, 2001, petitioner filed a
provides that the jurisdiction of the CIAC over the
complaint against the PEA before the Construction
parties is dependent on the agreement and consent of
Industry Arbitration Commission (CIAC) where it sought
the parties to the construction contract, to submit their
to recover payment for its progress billings on the said
dispute for arbitration. Absent such consent, the CIAC
projects.
cannot validly proceed against a party for lack of
jurisdiction.

Page 29
Civil Procedure
ESGUERRA NOTES
In this instance, both parties agreed to submit
the dispute for arbitration. However, the CIAC should
have dismissed the same on the ground that the private
respondent was not impleaded, it being an indispensable
party to the case.
Indispensable parties must be joined either as
plaintiffs or defendants. Whenever it appears to the
court in the course of a proceeding that an indispensable
party has not been joined, it is the duty of the court to
stop the trial and to order the inclusion of such
party. 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.
It has come to the Courts attention that from
the inception of the case, PEA informed the CIAC that
pursuant to the PFTA and the Deed of Assignment, all its
rights and obligations under the contract have already
been assigned to private respondent.
The responsibility of impleading all the
indispensable parties rests on the plaintiff. The
defendant does not have the right to compel the plaintiff
to prosecute the action against a party if he does not
wish to do so, but the plaintiff will have to suffer the
consequences of any error he might commit in
exercising his option.
 Where obligation of the parties is solidary,
either of the parties is indispensable
Cerezo v.Tuazon (2004)
Facts: A passenger bus collided with a tricycle
somewhere in Pampanga. The tricycle driver Tuazon
filed a complaint for damages against Mrs. Cerezo, as
owner of the bus line, and her husband Attorney
Juan Cerezo. However, the summons issued by the trial
court was returned unserved as the Cerezo spouses no
longer held office nor resided in Makati. The trial court
issued alias summons against the Cerezo spouses at
their address in Camiling, Tarlac.
Mrs. Cerezon brings this present petition lack
of jurisdiction. Mrs. Cerezo asserts that the trial court
could not validly render judgment since it failed to
acquire jurisdiction over Foronda. Mrs. Cerezo points out
that there was no service of summons on Foronda.
Moreover, Tuazon failed to reserve his right to institute
a separate civil action for damages in the criminal
action.
Held:Such contention betrays a faulty foundation. Mrs.
Cerezos contention proceeds from the point of view of
criminal law and not of civil law, while the basis of the
present action of Tuazon is quasi-delict under the Civil
Code, not delict under the Revised Penal Code.
The same negligent act may produce civil
liability arising from a delict under Article 103 of the
Revised Penal Code, or may give rise to an action for a
quasi-delict under Article 2180 of the Civil Code. An
aggrieved party may choose between the two remedies.
An action based on a quasi-delict may proceed
independently from the criminal action. There is,
however, a distinction between civil liability arising from
a delict and civil liability arising from a quasi-delict. The
choice of remedy, whether to sue for a delict or a quasi-
delict, affects the procedural and jurisdictional issues of
the action.
Tuazon chose to file an action for damages
based on a quasi-delict. In his complaint, Tuazon alleged
that Mrs. Cerezo, without exercising due care and
diligence in the supervision and management of her
employees and buses, hired Foronda as her driver.
Tuazon became disabled because of Forondas
recklessness, gross negligence and imprudence,
aggravated by Mrs. Cerezos lack of due care and
diligence in the selection and supervision of her
employees, particularly Foronda.
The trial court thus found Mrs. Cerezo liable
under Article 2180 of the Civil Code. Article 2180 states
in part:
Employers shall be liable for the damages
caused by their employees and household helpers acting
within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
Contrary to Mrs. Cerezos assertion, Foronda is
not an indispensable party to the case. An indispensable
party is one whose interest is affected by the courts
action in the litigation, and without whom no final
resolution of the case is possible. However, Mrs. Cerezos
liability as an employer in an action for a quasi-delict is
not only solidary, it is also primary and direct. Foronda
is not an indispensable party to the final resolution of
Tuazons action for damages against Mrs. Cerezo.
The responsibility of two or more persons who
are liable for a quasi-delict is solidary. Where there is a
solidary obligation on the part of debtors, as in this
case, each debtor is liable for the entire obligation.
Hence, each debtor is liable to pay for the entire
obligation in full. There is no merger or renunciation of
rights, but only mutual representation. Where the
obligation of the parties is solidary, either of the parties
is indispensable, and the other is not even a necessary
party because complete relief is available from either.
Therefore, jurisdiction over Foronda is not even
necessary as Tuazon may collect damages from Mrs.
Cerezo alone.
Moreover, an employers liability based on a
quasi-delict is primary and direct, while the employers
liability based on a delict is merely subsidiary.The words
primary and direct, as contrasted with subsidiary, refer
to the remedy provided by law for enforcing the
obligation rather than to the character and limits of the
obligation. Although liability under Article 2180
originates from the negligent act of the employee, the
aggrieved party may sue the employer directly. When an
employee causes damage, the law presumes that the
employer has himself committed an act of negligence in
not preventing or avoiding the damage. This is the fault
that the law condemns. While the employer is civilly
liable in a subsidiary capacity for the employees criminal
negligence, the employer is also civilly liable directly and
separately for his own civil negligence in failing to
exercise due diligence in selecting and supervising his
employee. The idea that the employers liability is solely
subsidiary is wrong.
The action can be brought directly against the person
responsible (for another), without including the author
of the act. The action against the principal is accessory
in the sense that it implies the existence of a prejudicial
act committed by the employee, but it is not subsidiary
in the sense that it can not be instituted till after the
judgment against the author of the act or at least, that
it is subsidiary to the principal action; the action for
responsibility (of the employer) is in itself a principal
action.
Page 30
Civil Procedure
ESGUERRA NOTES
Thus, there is no need in this case for the trial
court to acquire jurisdiction over Foronda. The trial
courts acquisition of jurisdiction over Mrs. Cerezo is
sufficient to dispose of the present case on the merits.
In contrast, an action based on a delict seeks
to enforce the subsidiary liability of the employer for the
criminal negligence of the employee as provided in
Article 103 of the Revised Penal Code. To hold the
employer liable in a subsidiary capacity under a delict,
the aggrieved party must initiate a criminal action where
the employees delict and corresponding primary liability
are established.[47] If the present action proceeds from
a delict, then the trial courts jurisdiction over Foronda is
necessary. However, the present action is clearly for the
quasi-delict of Mrs. Cerezo and not for the delict of
Foronda.
D.Necessary Party or Proper Party
 Definition – A necessary party is one who is not
indispensable but who ought to be joined as a
party if complete relief is to be accorded as to
those already parties, or for a complete
determination or settlement of the claim subject of
the action (Rule 3, Sec. 8).
 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 (Rule 3, Sec. 9).
o 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 (Rule 3, Sec. 9).
o The failure to comply with the order for his
inclusion, without justifiable cause, shall be
deemed a waiver of the claim against such party
(Rule 3, Sec. 9).
o 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 (Rule 3, Sec. 9).
Laperal Development Corporation, et. al v. CA
(1993)
Facts: Atty. Filoteo T. Banzon sought recovery of
attorney's fees from Oliverio Laperal, Laperal
Development Corporation, and Imperial Development
Corporation for professional services rendered by him in
the various cases. On 1983, the case was thereafter
decided on the basis of a Compromise Agreement. One
of the provisions in the Compromise Agreement stated
that Atty. Banzon was waiving all other claims he may
have against the defendant.
Banzon filed a complaint against Oliverio
Laperal. Laperal Development Corporation. Imperial
Development Corporation, Sunbeams Convenience
Foods, Inc. and Vicente Acsay for the annulment of the
Compromise Agreement and the collection of Atty’s Fees
that was adjudged payable to him as attorney's fees by
Ascario Tuazon in Civil Case No. 3918; and 4) the
payment to him of nominal damages and attorney's
fees.
RTC dismissed the case for lack of jurisdiction
in the annulment of a decision of an equal body. CA
affirmed the RTC but held, however, that attorney's fees
were due Atty. Banzon in the cases of Laperal
Development Corporation v. Ascario Tuazon and Ascario
Tuazon v. Judge Maglalang and Republic v. Sunbeams
Convenience Foods. Inc.. 2
Petitioners now challenges the decision insofar
as it orders them to pay Banzon attorney's fees for his
legal services in the aforementioned cases.
Held: Concerning one of the cases, Republic vs.
Sunbeams Convenience Foods, Inc. (G.R. No. 50464),
this case was also included in the Compromise
Agreement.
Notably, Sunbeams Convenience Foods, Inc.
(Sunbeams, for brevity), referred to in the complaint as
"Mr. Laperal's Corporation," was not joined by name as
a party-defendant. Apparently, the private respondent
believed that Oliverio Laperal, being the president of the
said company, was directly obligated to him for the
attorney's fees due him for his handling of the case for
Sunbeams.
It is settled that a corporation is clothed with a
personality separate and distinct from that of the
persons composing it. 3 It may not generally be held
liable for the personal indebtedness of its stockholders
or those of the entities connected with it. 4 Conversely, a
stockholder cannot be made to answer for any of its
financial obligations even if he should be its president. 5
There is no evidence that Sunbeams and
Laperal are one and the same person. While it is true
that Laperal is a stockholder, director and officer of
Sunbeams, that status alone does not make him
answerable for the liabilities of the said corporation.
Such liabilities include Banzon's attorney's fees for
representing it in the case of Republic v. Sunbeams
Convenience Foods, Inc.
Sunbeams should have been joined as a party-
defendant in order that the judgment of the lower court
could legally affect it. But even if it was not impleaded,
the court could still validly proceed with the case
because Sunbeams was not an indespensable party but
only a proper party. A proper party is one which ought
to be a party if complete relief is to be accorded as
between those already parties. 6 A party is
indespensable if no final determination can be had of an
action unless it is joined either as plaintiff or
defendant. 7
The Compromise Agreement upon which the decision of
the court was based was between plaintiff Atty. Banzon
and the defendants represented by Oliverio Laperal. To
repeat, Sunbeams was not a party to this agreement
and so could not be affected by it.
Page 31
Civil Procedure
ESGUERRA NOTES
III. Permissive Joinder of Parties
1997 Rules on Civil Procedure, Rule 3
Section 6. Permissive joinder of parties. — All
persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law
or fact common to all such plaintiffs or to all such
defendants may arise in the action; but the court may
make such orders as may be just to prevent any plaintiff
or defendant from being embarrassed or put to expense
in connection with any proceedings in which he may
have no interest.
The rule on permissive joinder of parties is that the
parties (plaintiff/defendant) can be joined in a single
complaint and can sue or be sued in separate suits.
Requisites:
i. The right to relief arises out of the same
transaction or series of transactions;
ii. There is a question of law or fact common to
all the plaintiffs or defendants; and
iii. Such joinder is not otherwise proscribed by the
provisions of the Rules on jurisdiction and
venue. (Pantranco North Express, Inc. v.
Standard Insurance)
IV. Effect of Misjoinder and Non-joinder of Parties
1997 Rules on Civil Procedure, 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 the action and
on such terms as are just. Any claim against a misjoined
party may be severed and proceeded with separately.
 An outright dismissal is not the immediate remedy in
case of non-joinder or misjoinder of parties.
Instead, parties may be dropped or added by the
court on motion of any party or on its own initiative.
It is when the order of the court to implead an
indispensable party goes unheeded that the case
may be dismissed.
 The non-joinder of indispensable parties is not a
ground for the dismissal of the action. At any stage
of the judicial proceeding and/or at such times as are
just, parties may be added on the motion of a party
or on the initiative of the tribunal concerned. If the
plaintiff refuses to implead an indispensable party
despite the order of the court, the court may dismiss
the complaint for plaintiff’s failure to comply with the
order. (Pamplona Plantation Co. v. Tinghil)
V. Class Suits
1997 Rules on Civil Procedure, 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 interests 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.
Requisites for a class suit to prosper:
1. The subject matter of the controversy must be of
common or general interest to many persons;
2. The persons are so numerous that it is impracticable
to join all as parties;
3. The parties actually before the court are sufficiently
numerous and representative as to fully protect the
interests of all concerned; and
4. The representatives sue or defend for the benefit of
all. (Berses v. Villanueva, 25 Phil. 473; Sulo ng
Bayan, Inc. v. Araneta, 72 SCRA 347)
Mathay v. Consolidated Bank & Trust Company
(1974)
Facts: Plaintiffs Mathay and other former stockholders
of Consolidated Mines, Inc. (CMI) filed a complaint
denominated as a class suit under Section 12, Rule 3 of
the Rules of Court. The complaint alleged that
plaintiffs and other CMI subscribing stockholders were
entitled to subscribe to the capital stock of the
defendant bank but that they were denied, through the
unlawful acts and manipulation of defendant bank, the
right to subscribe in proportion to their equities. The
complaint further alleged that the individual defendants
who were members of the Board of Directors acquired
stockholdings in excess of what they were lawfully
entitled to. Hence, plaintiffs prayed that these
subscriptions, to the extent that plaintiffs were
deprived of their right to subscribe, be annulled and
transferred to the latter and other CMI subscribing
stockholders.
The trial court granted the motion to dismiss,
holding that a class suit could not be maintained
because there was no showing in the complaint that
plaintiffs were sufficiently numerous and
representative, and that plaintiffs did not have a
common legal interest in the subject matter of the suit.
Issue: Whether or not the instant action could be
maintained as a class suit.
Ruling: No. The necessary elements for the
maintenance of a class suit are accordingly:
(1) that the subject matter of the controversy be
one of common or general interest to many
persons, and
(2) that such persons be so numerous as to make
it impracticable to bring them all to the court.
Page 32
 Civil Procedure
ESGUERRA NOTES

An action does not become a class suit merely  Plaintiff may sue the shipping company and the
because it is designated as such in the pleadings. arrastre operator alternatively for the recovery of
Whether the suit is or is not a class quit depends upon damages to goods shipped through a maritime
the attending facts, and the complaint, or other vessel (Rizal Surety & Insurance Company v.
pleading initiating the class action should allege the Manila, 70 SCRA 187)
existence of the necessary facts, to wit, the existence
of a subject matter of common interest, and the
3. Unknown defendant
existence of a class and the number of persons in the
alleged class, in order that the court might be enabled
to determine whether the members of the class are so 1997 Rules on Civil Procedure, Rule 3
numerous as to make it impracticable to bring them all
before the court, to contrast the number appearing on Section 14. Unknown identity or name of
the record with the number in the class and to defendant. — Whenever the identity or name of a
determine whether claimants on record adequately defendant is unknown, he may be sued as the unknown
represent the class and the subject matter of general owner heir devisee, or by such other designation as the
or common interest. case may require, when his identity or true name is
discovered, the pleading must be amended accordingly.
The complaint in the instant case did not state
the number of said CMI subscribing stockholders so
that the trial court could not infer, much less make
1997 Rules on Civil Procedure, Rule 14
sure, that the parties actually before it were numerous
and representative, so that the interests of the parties
Section 14. Service upon defendant whose identity
concerned might be fully protected, and that it was
or whereabouts are unknown. — In any action where
impracticable to bring such a large number of parties
the defendant is designated as an unknown owner, or
before the court.
the like, or whenever his whereabouts are unknown
and cannot be ascertained by diligent inquiry, service
The statute also requires, as a prerequisite to a
may, by leave of court, be effected upon him by
class suit, that the subject-matter of the controversy
publication in a newspaper of general circulation and in
be of common or general interest to numerous
such places and for such time as the court may order.
persons. The interest that plaintiffs and the CMI
stockholders had in the subject matter of this suit —
the portion of stocks offering of the Bank left
unsubscribed by CMI stockholders who failed to 4. Entity without juridical personality as
exercise their right to subscribe — was several, not defendant
common or general in the sense required by the
statute. Each one of the plaintiffs and the CMI
stockholders had determinable interest; each one had a
right, if any, only to his respective portion of the 1997 Rules on Civil Procedure, Rule 3
stocks. No one of them had any right to, or any
interest in, the stock to which another was entitled Section 15. Entity without juridical personality as
defendant. — When two or more persons not organized
Where it appeared that no sufficient as an entity with juridical personality enter into a
representative parties had been joined, the dismissal of transaction, they may be sued under the name by
the action is in order. which they are generally or commonly known.

In the answer of such defendant, the name and

VI. Defendants
addresses of the persons composing said entity must
all be revealed.
1. Unwilling co-plaintiff

1997 Rules on Civil Procedure, Rule 3

1997 Rules on Civil Procedure, Rule 14
Section 10. Unwilling co-plaintiff. — If the consent
Section 8. Service upon entity without juridical
of any party who should be joined as plaintiff cannot be
personality. — When persons associated in an entity
obtained, he may be made a defendant and the reason
without juridical personality are sued under the name
therefor shall be stated in the complaint.
by which they are generally or commonly known,
service may be effected upon all the defendants by
2. Alternative defendant 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 service shall not bind individually
1997 Rules on Civil Procedure, Rule 3 any person whose connection with the entity has, upon
due notice, been severed before the action was
Section 13. Alternative defendants. — Where the brought.
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.

Page 33
Civil Procedure
ESGUERRA NOTES
VII. Death of party; duty of counsel
1997 Rules on Civil Procedure, 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 his
duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the
appointment of an executor or administrator and the
court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal
representative or representatives to appear and be
substituted within a period of thirty (30) days from
notice.
If no legal representative is named by the counsel
for the deceased party, or if the one so named shall fail
to appear within the specified period, the court may
order the opposing party, within a specified time to
procure the appointment of an executor or administrator
for the estate of the deceased and the latter shall
immediately appear for and on behalf of the deceased.
The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as
costs.
 Upon receipt of the notice of death, the court
shall determine whether or not the claim is
extinguished by such death. If the claim
survives, the court shall order the legal
representative/s of the deceased to be
substituted for the deceased.
 The purpose behind the rule on substitution of
parties is the protection of the right of every
party to due process. (Torres v. Court of
Appeals, 278 SCRA 793)
 General Rule: Non-compliance with the rules on
substitution of a deceased party renders the
proceedings of the trial court infirm because the
court acquired no jurisdiction over the person of
the legal representative of the deceased. (Brioso
v. Rili-Mariano, 396 SCRA 549)
o Exception: In an ejectment case, the non-
substitution of the deceased by his legal
representatives does not deprive the court
of jurisdiction. A judgment in the
ejectment case may be enforced not only
against the defendant, but also against
the members of their family, their
relatives, or privies who derived their right
of possession from the deceased
defendant. (Florendo, Jr. v. Coloma, 129
SCRA 304)
 Formal substitution is not necessary when the
heirs themselves voluntarily appeared in the
action and participated therein. (Vda. De
Salazar v. Court of Appeals, 250 SCRA 305)
 Service of summons is not required to effect
proper substitution. Instead of service of
summons the court shall order the legal
representative of the deceased to appear and
be substituted for said deceased.
 Examples of actions which survive the death of a
party:
1. Actions and obligations arising from
delicts;
2. Actions based on the tortious conduct of
the defendant;
3. Actions to recover real and personal
property;
4. Actions to enforce a lien on such
properties;
5. Actions to recover damages for an injury
to person or property by reason of tort or
delict committed by the deceased;
6. An ejectment case survives the death of
a party and continues until judgment
because the issue concerning the
illegality of the defendant’s possession
continues. (Vda. De Salazar v. Court of
Appeals, 250 SCRA 305)
1997 Rules on Civil Procedure, Rule 3
Section 20. Action and 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.
 Execution shall not issue in 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 under Rule 86, Section 5 of the
Rules of Court.
VIII. EFFECT OF NON-SUBSTITUTION OF A
DECEASED PARTY
Heirs of Bertuldo Hinog v. Hon. Achilles Melicor
(2005)
Facts: Respondents Custodio, Rufo, Tomas and Honorio,
all surnamed Balane, filed a complaint against petitioner
Bertuldo Hinog for the Recovery of the possession and
ownership of their property which was leased to Hinog.
Allegedly, despite the expiration of the ten-year period
lease contract, Hinog refused to vacate. Bertuldo was
able to file his Answer and start his direct examination.
However, he died on 24 June 1998 without completing
his evidence. Atty. Tinampay withdrew as counsel. Atty.
Petalcorin then entered his appearance as new counsel.
Atty. Petalcorin filed a motion to expunge the
complaint from the record and nullify all court
proceedings on the ground that private respondents
failed to pay the correct docket fees. Private
respondents opposed the motion to expunge, raising as
one of its grounds the lack of legal personality of Atty.
Petalcorin to represent the litigants for his non-
compliance with Section 16, Rule 3 of the Rules of
Court.
Page 34
Civil Procedure
ESGUERRA NOTES
The motion was granted but subject to the
payment of the deficiency docket fees. Upon such
payment, the trial court reinstated the complaint. This
order was contested by petitioners. In its 15 October
1999 Order denying petitioners’ MR, the trial court noted
that there has been no substitution of parties following
the death of Bertuldo. Hence, it directed Atty. Petalcorin
to comply with the provisions of Section 16, Rule 3 of
the Rules of Court. On 19 November 1999, Atty.
Petalcorin complied with such directive.
Petitioners filed the present petition for
certiorari and prohibition alleging that the RTC
committed grave abuse of discretion in allowing the case
to be reinstated.
In their Comment, private respondents
assailed Atty. Petalcorin’s lack of legal personality to
appear as counsel for the heirs of Bertuldo for his failure
to comply with Section 16, Rule 3 of the Rules of Court.
Issue: What is the effect of the non-compliance on the
rule on substitution (Section 17) upon the legal
personality to sue of Atty. Petalcorin?
Held: Strictly speaking, before said compliance, Atty.
Petalcorin had no standing in the court a quo when he
filed his pleadings. Be that as it may, the matter has
been duly corrected by the Order of the trial court dated
15 October 1999.
Nevertheless, the court emphasized that the
purpose behind the rule on substitution is the protection
of the right of every party to due process. It is to ensure
that the deceased party would continue to be properly
represented in the suit through the duly appointed legal
representative of his estate. Non-compliance with the
rule on substitution would render the proceedings and
judgment of the trial court infirm because the court
acquires no jurisdiction over the persons of the legal
representatives or of the heirs on whom the trial and the
judgment would be binding. Thus, proper substitution of
heirs must be effected for the trial court to acquire
jurisdiction over their persons and to obviate any future
claim by any heir that he was not apprised of the
litigation against Bertuldo or that he did not authorize
Atty. Petalcorin to represent him.
In this case, formal substitution of the parties
was effected sixteen months after the death of Bertuldo
and only when the trial court directed Atty. Petalcorin to
comply as required by Section 16, Rule 3 of the Rules of
Court.
De la Cruz v. Joaquin (2005)
Facts: Respondent Pedro Joaquin filed against
Petitioners Sps. dela Cruz for recovery of possession and
ownership of his land. Joaquin alleged that he obtained a
loan from dela Cruz. As security, he executed a Deed of
Sale. He alleged that the sale was in fact an equitable
mortgage and he was deprived of his right to
repurchase. On 24 December 1988, Pedro Joaquin died.
In 1990, the RTC decided in favor of Joaquin. On 15
February 2002, before the CA, the daughter of the
deceased Pedro, Lourdes dela Cruz, moved for her
substitution as the party-plaintiff.
The CA resolved in favor of Joaquin. In CA’s
2004 Resolution denying petitioners’ motion for
reconsideration, CA ordered a substitution by legal
representatives. In this present Petition for Review, the
petitioners assert that the trial court lost jurisdiction
over the case upon the death of Pedro Joaquin during
the pendency of the case and having no substitution by
the heirs made.
Issue: WON a formal substitution by the heirs of Pedro
Joaquin is necessary when they themselves actively
participated in the case?
Held:No. As a general rule, the Court nullifies not only
trial proceedings conducted without the appearance of
the legal representatives of the deceased, but also the
resulting judgments since the courts acquired no
jurisdiction over the persons of the legal representatives
or the heirs upon whom no judgment was binding.
Notwithstanding this general rule, a formal substitution
by heirs is not necessary when they themselves
voluntarily appear, participate in the case, and present
evidence in defense of the deceased. These actions
negate any claim that the right to due process was
violated. The alleging party must prove that there was
an undeniable violation of due process.
The Rules require the legal representatives of a
dead litigant to be substituted as parties to a litigation.
Strictly speaking, this requirement is necessitated by
due process and not a matter of jurisdiction. Thus, when
the rights of the legal representatives of a decedent are
actually recognized and protected, noncompliance or
belated formal compliance with the Rules cannot affect
the validity of the promulgated decision. After all, due
process had thereby been satisfied.
The heirs of Pedro Joaquin voluntary appeared
and participated in the case. We stress that the
appellate court had ordered his legal representatives to
appear and substitute for him. The substitution even on
appeal had been ordered correctly. In all proceedings,
the legal representatives must appear to protect the
interests of the deceased. After the rendition of
judgment, further proceedings may be held, such as a
motion for reconsideration or a new trial, an appeal, or
an execution. Considering the foregoing circumstances,
the Motion for Substitution may be deemed to have
been granted; and the heirs, to have substituted for the
deceased, Pedro Joaquin. There being no violation of
due process, the issue of substitution cannot be upheld
as a ground to nullify the trial court’s Decision.
Factual milieu not similar to Chittick v. CA. In
the Chittick case, the children who allegedly substituted
for their mother refused to continue the case against
their father and vehemently objected to their inclusion
as parties. The father also died during the pendency of
the case; thus, the children were bound to substitute for
the defendant also. The substitution effectively merged
the persons of the plaintiff and the defendant and thus
extinguished the obligation being sued upon.
Page 35
Civil Procedure
ESGUERRA NOTES
Charles Limbauan v. Faustino Acosta (2008)
Facts: Respondent Faustino Acosta took possession of a
portion of an unused land which should have been
utilized by the government as a leprosarium. A portion
of the land which Acosta possessed for himself was
occupied by Paulino Calanday who in turn conveyed the
land to Juanita Roces. Roces paid her rentals to Acosta.
Subsequently, she sub-leased it to her nephew Charles
Limbauan. In 1987, Limbauan stopped paying his rentals
claiming the land was government property. Years later,
the government declared the land for the housing
projects for DOH employees. Acosta thereafter filed a
complaint for unlawful detainer against Limbauan. The
MTC, RTC, and CA decided in favor of Acosta. However,
during the pendency of the case before the CA, Acosta
died on 22 October 2000.
The present petition seeks to reverse the CA
ruling, raising as one of its grounds the lack of proper
substitution of a party in compliance with Rule 3,
Section 16 (now 17) of the Rules of Court which
rendered the case moot and academic. The petition
alleges that on account of the failure of Acosta’s counsel
to inform the CA of the death of Acosta during the
pendency of the appeal before it, the proceedings and
judgment should be invalidated.
Issue: WON the failure of the counsel to comply with
his duty under Section 17 will invalidate the proceedings
and the judgment thereon?
Held: No, this kind of action survives the death of
Acosta. Hence, the failure of counsel to comply with his
duty under Section 17 to inform the court of the death
of his client and no substitution of such party is effected
will NOT invalidate the proceedings and the judgment
thereon if the action survives the death of such party.
Moreover, the decision rendered shall bind his
successor-in-interest. The instant action for unlawful
detainer, like any action for recovery of real property, is
a real action and as such survives the death of Acosta.
His heirs have taken his place and now represent his
interests in the instant petition.21 Hence, the present
case cannot be rendered moot despite the death of
respondent.
IX. DEATH OR SEPARATION OF PARTY WHO
IS A PUBLIC OFFICER (SEC. 17)
Requisites for substitution of public officer:
1. Removal/death of public officer and
appointment of successor within 30
days unless otherwise provided.
2. Successor adopts, continues, or
threatens to continue the act sued
against
3. There is substantial need to continue
the action
Substitution is not automatic. Requisites:
1. Notice to the new public officer
2. Opportunity to be heard for the new
officer
(Section 17)
The phrase “in his official capacity”
emphasized that the public officer is a party
in an action in his official capacity, and not
private, capacity. (Herrera, 2000, citing Feria)
X. INCOMPETENCY OR INCAPACITY
(SEC. 18)
1997 Rules on Civil Procedure, 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.
XI. TRANSFER OF INTEREST (SEC. 19)
Where a party to an action filed with the CA a motion
stating that it had sold, transferred, and assigned to a
third person the property subject of the litigation, and
prayed that the latter be substituted as party-defendant-
appellee, although the motion was not acted upon, the
transferee is bound by any judgment which may be
rendered for or against the transferor. The transfer was
made pendent lite, and with notice of lis pendens. As the
new owner of the property, the transferee is the party
with a substantial interest in the property. Hence, it
would be the most interested in terminating the case.
Herrera citing Mayuga v. CA, 154 SCRA 309, 28
September 1987.
Even if the transferee is not a formal party to the case,
the motion for substitution not having been acted upon,
it is nonetheless bound by a compromise agreement,
said transferee being one of the contracting parties.
Persons who are not formal parties to a civil case but
who willingly and voluntarily enter into a compromise
agreement are bound thereby. Supra.
The Supreme Court has declared in a number of
decisions that a transferee pendente lite stands in
exactly the same position as its predecessors-in-
interest, the original defendant, and is bound by the
proceedings has in the case before the property was
transferred to it. It is a proper but not an indispensable
party as it would in any event be bound by the judgment
against his predecessor. This would follow even if it is
not formally included as a defendant through an
amendment of the complaint. Herrera citing Fatalino v.
Sanz, 44 Phil. 691.
The appeal, however, of the original party should also
redound to the transferee’s benefit. As it is the
transferee that may ultimately be required to satisfy the
judgment if it is affirmed on appeal, it is only fair that it
be deemed to have also appealed together with its
predecessor-in-interest, from the decision. To erase all
doubts as to the status of the transferee, the latter may
be deemed impleaded in substitution of the original
defendant. Herrera citing Jocson v. CA, G.R. No. 95446,
16 March 1992.
Page 36
Civil Procedure
ESGUERRA NOTES

Thus, where an assignable right has been transferred
before action is brought, the proceeding ought to be
instituted in the name of the assignee; and where an
assignment is effected pendente lite, it is proper to have
the assignee substituted for the original plaintiff. If such
substitution should not be effected and the transfer of
the right action should not be brought to the attention of
the court, the original plaintiffs, if successful in litigation
would hold the fruits of the action as a sort of trustee for
the use and benefit of his assignee. But it would be
surprising doctrine to hold that where the assignee has
assented to the continued prosecution of the action by
the original plaintiff, the defendant can nullify the
judgment, after litigation has been concluded on the
ground that the interest in litigation has been
transferred. When this feat is attempted, the defendant
can be properly met by the proposition that if any
irregularity was committed in the prosecution of the
case, it was, as to him, error without injury. Certainly it
cannot be contended that the transfer of the right of
action pendente lite affects the jurisdiction of the court.
Herrera citing E.B. Marcha Transport Co., Inc. v. IAC,
147 SCRA 276.
XII. INDIGENT PARTY (SEC. 21)
Under the present rule, the application to litigate as a
pauper may be filed by either the plaintiff or defendant
and hearing to litigate as a pauper may be made ex
parte.
Proof in support of the application need not necessarily
be by affidavits, certificate of the corresponding
provincial, city, or municipal treasurer for as long as the
court is satisfied that the party is one who has no money
or property sufficient and available for food, shelter, and
basic necessities for himself and his family.
The exemption includes transcript of stenographic notes
which the court may order to be furnished for himself
and his family.
Unlike the former rule which creates a lien only for legal
fees, under the present rule, 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. Herrera, 2000.
Compare with Section 19 of Rule 141:
SEC. 19. Indigent litigants exempt from payment of
legal fees. Indigent litigants (a) whose gross income and
that of their immediate family do not exceed an amount
double the monthly minimum wage of an employee and
(b) who do not own real property with a fair market
value as stated in the current tax declaration of more
than three hundred thousand (P300,000.00) pesos shall
be exempt from payment of legal fees.
The legal fees shall be a lien on any judgment rendered
in the case favorable to the indigent litigant unless the
court otherwise provides.
affidavit of a disinterested person attesting to the truth
of the litigants affidavit. The current tax declaration, if
any, shall be attached to the litigants affidavit.
Any falsity in the affidavit of litigant or disinterested
person shall be sufficient cause to dismiss the complaint
or action or to strike out the pleading of that party,
without prejudice to whatever criminal liability may have
been incurred.
If the applicant for exemption meets the salary and
property requirements under Section 19 of Rule 141,
then the grant of the application is mandatory. On the
other hand, when the application does not satisfy one or
both requirements, then the application should not be
denied outright; instead, the court should apply the
indigency test under Section 21 of Rule 3 and use its
sound discretion in determining the merits of the prayer
for exemption. Sps. Algura v. the LGU of Naga, G.R. No.
150135, 30 October 2006.
A party may be allowed to litigate in forma pauperis
only upon a proper showing that he has no means to
that effect by affidavits, certificate of the corresponding
provincial, city, or municipal treasurer, or otherwise.
Thus, every would-be litigant who seeks exemption from
the payment of the fees prescribed for maintaining an
action must establish, not simply allege, his lack of
means. Herrera citing Admin. Matter No. 88-1-646-0, En
Banc, Minute Resolution, 159 SCRA 623.
Where there is a multiplicity of such parties, each must
show lack, in propia persona, as it were. The particular
circumstances or possible consequences of an actual or
contemplated suit are such as to transcend the narrow
personal interests of the immediate parties thereto and
to so impugn upon the wider interests of the people at
large as to assume an aspect of “national importance,”
does not under any existing law or rules justify excusing
such parties from paying the requisite judicial fees or
costs. Supra.
XIII. NOTICE TO SOLICITOR GENERAL
(SEC. 22)
1997 Rules on Civil Procedure, Rule 3
Section 22. Notice to the Solicitor General. — 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 a representative duly designated by him.
Under this new rule, “presidential decree” is now
included and the term “superior” from the term court
has been deleted. Thus this provision is now applicable
to any court and not limited to a superior court. Herrera,
2000.

To be entitled to the exemption herein provided, the

litigant shall execute an affidavit that he and his
immediate family do not earn a gross income
abovementioned, and they do not own any real property
with the fair value aforementioned, supported by an

Page 37
 Civil Procedure
ESGUERRA NOTES

VI. When rule not applicable

Rule 4
VENUE OF ACTIONS 1. Where a specific rule or law provides
otherwise

I. Venue refers to the place where a civil action may

be tried; in civil cases, it essentially concerns a rule Diaz v. Adiong (1993)
of procedure which looks primarily at the
convenience of the litigants. (Gumabon, et al. v. Certain public officers instituted with the Regional Trial
Larin, G.R. No. 142523, 27 November 2001) Court, Marawi City, separate criminal & civil complaints
for libel against Patricio Diaz (“Diaz”), the publisher and
editor of the Mindanao Kris, a newspaper of general
II. Venue and jurisdiction, distinguished. circulation in Cotabato City. Diaz moved for the
dismissal of the action for damages, arguing that venue
was improperly laid since neither respondents hold office
in Marawi nor was the article published there.
Venue Jurisdiction
It is the place where the It refers to the authority of Ruling: An offended party who is at the same time a
cause is instituted, heard the court to hear and decide public official can only institute an action arising from
or tried. a case. libel in two (2) venues: the place where he holds office,
It may be waived. Jurisdiction over the subject and the place where the alleged libelous articles were
matter is conferred by law printed & first published.
and cannot be waived.
It may be changed by the It is fixed by law and cannot In the present case, it is indubitable that venue was
written agreement of the be the subject of agreement improperly laid. However, unless and until the
parties. of the parties. defendant objects to the venue in a motion to
It is not a ground for a Lack of jurisdiction over the dismiss prior to a responsive pleading, the venue
motu proprio dismissal, subject matter may be a cannot truly be said to have been improperly laid
except in summary ground for a motu proprio since, for all practical intents and purposes, the
procedure. dismissal. venue though technically wrong may yet be
Procedural Substantive considered acceptable to the parties for whose
convenience the rules on venue had been devised.
Petitioner Diaz then should have timely challenged the
III. Venue of real actions
venue laid in Marawi City in a motion to dismiss,
pursuant to Sec. 4, Rule 4, of the Rules of Court.
1997 Rules on Civil Procedure, Rule 4 Unfortunately, Diaz had already submitted himself to the
jurisdiction of the trial court when he filed his Answer to
Section 1. Where the action is real, the venue is the Complaint with Counterclaim. His motion to dismiss
local; hence, the venue is the place where the real was therefore belatedly filed and could no longer deprive
property involved, or any portion thereof, is situated. the trial court of jurisdiction to hear and decide the
instant civil action for damages. Well-settled is the rule
that improper venue may be waived and such
IV. Venue of personal actions waiver may occur by laches.

1997 Rules on Civil Procedure, Rule 4
Section 2. If the action is personal, the venue is
transitory; hence, it is the residence of the plaintiff or
defendant at the option of the plaintiff.
V. Venue of actions against non-residents
1. Quasi in rem (action affects personal
status of plaintiff) – residence of plaintiff
Where the defendant does not reside and is
not found in the Philippines, and the action
affects the personal status of the plaintiff,
the action may be commenced and tried in
the court of the place where the plaintiff
resides. (Rule 4, Sec.3)
2. In rem (action affects property of
defendant in Philippines) – location of
property
Where the defendant does not reside and is
not found in the Philippines, and the action
affects any property of said defendant
located in the Philippines, the action may be
commenced and tried where the property or
any portion thereof is situated or found.
(Rule 4, Sec.3)
Withal, objections to venue in civil actions arising from
libel may be waived; it does not, after all, involve a
question of jurisdiction. Indeed, the laying of venue is
procedural rather than substantive, relating as it does to
jurisdiction of the court over the person rather than the
subject matter. Venue relates to trial and not to
jurisdiction.
Finally, Sec. 1 of Rule 16 provides that objections to
improper venue must be made in a motion to dismiss
before any responsive pleading is filed. Responsive
pleadings are those which seek affirmative relief and set
up defenses. Consequently, having already submitted
his person to the jurisdiction of the trial court,
petitioner may no longer object to the venue
which, although mandatory in the instant case, is
nevertheless waivable. As such, improper venue must
be seasonably raised, otherwise, it may be deemed
waived.

Page 38
Civil Procedure
ESGUERRA NOTES

2. Where parties have validly agreed in writing The parties, however, are not precluded
before filing of the action on exclusive venue from agreeing in writing on an exclusive
thereof venue, as qualified by Section 4 of the same
rule. Written stipulations as to venue may
be restrictive in the sense that the suit may
The parties may agree on a specific venue which
be filed only in the place agreed upon, or
could be in a place where neither of them resides
merely permissive in that the parties may
(Universal Robina Corp., vs. Lim, 535 SCRA 95) The
file their suit not only in the place agreed
parties may stipulate on the venue as long as the
upon but also in the places fixed by law. As
agreement is (a) in writing; (b) made before the
in any other agreement, what is essential is the
filing of the action; and (c) exclusive as to the
ascertainment of the intention of the parties
venue. (Rule 4, Sec. 4[b])
respecting the matter.
The mere stipulation on the venue of an action is not
As regards restrictive stipulations on venue,
enough to preclude parties from bringing a case in
jurisprudence instructs that it must be shown
other venues. It must be shown that such stipulation
that such stipulation is exclusive. In the
is exclusive. In the absence of qualifying or
absence of qualifying or restrictive words,
restrictive words, such as "exclusively" and
such as "exclusively," "waiving for this
"waiving for this purpose any other venue,
purpose any other venue," "shall only"
"shall only" preceding the designation of venue,
preceding the designation of venue, "to the
"to the exclusion of the other courts," or words
exclusion of the other courts," or words of
of similar import, the stipulation should be deemed
similar import, the stipulation should be
as merely an agreement on an additional forum, not
deemed as merely an agreement on an
as limiting venue to the specified place. (Auction in
additional forum, not as limiting venue to
Malinta, Inc., vs. Luyaben, G.R. No. 173979, 12
the specified place.
February 2007)
In the present case, the Construction
Legaspi v. Republic (2008) Agreement provides:
Jesusito D. Legaspi, as owner and manager of J.D.
Legaspi Construction (“petitioner”), entered into a ARTICLE XIV – JUDICIAL REMEDIES
Construction Agreement with the Social Security All actions and controversies that
System (“respondent”) in June 1997 for the may arise from this Agreement
construction of a four-storey building in Baguio City involving but not limited to demands
which will serve as respondent's branch office. for the specific performance of the
obligations as specified in the
Petitioner had several meetings with respondent's clauses contained herein and/or as
representatives during which he informed them of his resolved or interpreted by the
difficulty in meeting his obligations under the contract CLIENT pursuant to the third
due to the devaluation of peso. After several failed paragraph of Article I hereof may be
meetings, petitioner sent a letter to respondent brought by the parties before the
requesting an adjustment in the contract price, which proper courts in Quezon City where
was denied by respondent. This constrained petitioner the main office of the CLIENT is
to file a complaint for payment of sum of money plus located, the CONTRACTOR hereby
damages with the Regional Trial Court (RTC) of Makati expressly waiving any other
City. venue.
x x x x (Emphasis supplied)
Instead of filing an answer, respondent, filed a Motion
to Dismiss on the grounds that venue was improperly The venue is specific - Quezon City - and
laid and petitioner had no cause of action. On the accompanied by the words "the
ground of improper venue, it was respondent's CONTRACTOR hereby expressly waiving any
argument that the Construction Agreement provided other venue," which connote exclusivity of
that all actions may be brought before the proper the designated venue. These terms clearly
court in Quezon City and that petitioner waived any stipulate exclusively the venue where
other venue. actions arising from the Construction
Agreement should be filed.
Ruling: As a general rule, venue of personal actions is
governed by Section 2, Rule 4 of the Rules of Court,
VII. Waiver of improper venue
to wit:
When improper venue is not objected to in a motion to
Sec. 2. Venue of personal actions. –
dismiss it is deemed waived. In other words, venue is
All other actions may be
waivable. It is procedural, not a jurisdictional matter. It
commenced and tried where the
is intended to provide convenience to the parties, rather
plaintiff or any of the principal
than restrict their access to the courts. The rules on
plaintiffs resides, or where the
venue simply arrange for the convenient and effective
defendant or any of the principal
transaction of business in the courts and do not relate to
defendants resides, or in the case of
their power, authority or jurisdiction over the subject
a non-resident defendant, where he
matter of the action. (Philippine Banking Corp., vs.
may be found, at the election of the
Tensuan, G.R. No. 104649, 28 February 1994)
plaintiff.

Page 39
Civil Procedure
ESGUERRA NOTES

defendant objects to the venue in a motion

to dismiss, the venue cannot be truly said to have
1. Express waiver
been improperly laid. The trial court cannot pre-
empt the defendant's prerogative to object to the
The parties may expressly waive improper venue,
improper laying of the venue by motu proprio
when they agree on a specific venue which could
dismissing the case.
be in a place neither of them resides in nor where
the property is located.
VIII. How to question improper venue
The parties may stipulate on the venue as long as
the agreement is (a) in writing; (b) made before
1. Motion to dismiss
the filing of the action; and (c) exclusive as to the
venue. (Rule 4, Sec. 4[b])
Under Rule 16, Sec. 1(c), a motion to dismiss
may be filed if the venue was improperly laid.
2. Implied waiver
2. Affirmative defense in answer
There is an implied waiver of improper venue,
If no motion to dismiss has been filed, any of
when the defendant filed his answer and went to
the grounds provided for dismissal under Rule
trial without objecting to the improper venue.
16 may be pleaded as an affirmative defense
(Rule 9, Sec. 1)
in the answer and in discretion of the court, a
preliminary hearing may be made as if a
The ground of improperly laid venue must be
motion to dismiss has been filed. (Rule 16,
raised seasonably, else it is deemed waived.
Sec. 6) Thus, if no motion to dismiss was filed,
Where the defendant failed to either file a motion
the defendant may question the improperly
to dismiss on the ground of improper venue or
laid venue in his answer.
include the same as an affirmative defense, he is
deemed to have waived his right to object to
improper venue. (Bautista v. Maya-Maya Cottages,
Inc., G.R. No. 148361, 29 November 2005)

Dacoycoy vs. IAC(1991)

Petitioner Jesus Dacoycoy filed, before the RTC

of Antipolo, Rizal, a complaint against private
respondent Rufino De Guzman for the annulment of 2
deeds of sale involving a parcel of rice land located
in Barrio Estanza, Lingayen, Pangasinan, the surrender
of the produce thereof, and damages due to the latter’s
refusal to have said deeds set aside upon petitioner's
demand.

Before summons could be served on De Guzman, the

RTC issued an order requiring counsel for the petitioner
to confer with respondent judge on the matter of
venue. After said conference, the trial court dismissed
the complaint on the ground of improper venue. It
found, based on the allegations in the complaint, that
petitioner's action is a real action as it sought not only
the annulment of the deeds of sale but also the recovery
of ownership of the subject property, which is outside
the territorial jurisdiction of the trial court. Petitioner
then lodged an appeal to the Intermediate Appellate
Court, which affirmed the order of dismissal of his
complaint.

Ruling: The motu proprio dismissal of petitioner's

complaint by respondent trial court on the ground
of improper venue is plain error, obviously
attributable to its inability to distinguish between
jurisdiction and venue.

Dismissing the complaint on the ground of improper

venue is inappropriate because venue may be
waived expressly or impliedly. Where defendant fails
to challenge timely the venue in a motion to dismiss as
provided by Rule 4, Sec. 4 of the Rules of Court, and
allows the trial to be held and a decision to be rendered,
he cannot on appeal or in a special action be permitted
to challenge belatedly the wrong venue, which is
deemed waived. Thus, unless and until the

Page 40
Civil Procedure
ESGUERRA NOTES

PLEADINGS the nature thereof, except that in an original action

(SUBSTANTIAL REQUIREMENTS)
PLEADINGS, IN GENERAL
Defined
Pleadings are the written statements of the respective
claims and defenses of the parties submitted to the
court for appropriate judgments. (Section 1, Rule 6)
Thus, pleadings cannot be oral because they are clearly
described as “written” statements. (Riano, p.51).
Pleadings have the following purposes:
a. To apprise the Court of the rival claims in a judicial
controversy submitted for trial and decision;
b. To indicate fairly the nature of the claims and
defense of both parties; and
c. 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 trial as
well as advice a party to what his adversary would
rely on as a cause of actions or as defense.
(Lianga Lumber v. Lianga Timber, G.R. No.
386685, 31 March 1977).
before the Regional Trial Court, the counter-claim may
be considered compulsory regardless of the amount.
(c) Cross-claim
A 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 the cross-claimant.
(d) Third (fourth, etc.)-party complaint
A third (fourth, etc.) — party complaint is a claim that a
defending party may, with leave of court, file against a
person not a party to the action, called the third (fourth,
etc.) — party defendant for contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim.
(e) Complaint-in-intervention

Distinguished from motion (Rule 15, Sec. 1) One filed by an intervenor asserting a claim against
either or all of the original parties. (Section 3, Rule 19).
A pleading is different from a motion. Section 1, Rule
15, of the Rules of Court expressly states that a motion (f) Answer
is an application for relief other than by a pleading.
An answer is a pleading in which a defending party sets
Pleading Motion forth his defenses.
Purpose: To submit a Purpose: To apply for an
claim or defense for order not included in the Parts of a pleading:
appropriate judgment. judgment. Ordinarily, a pleading has the following parts:
It may be initiatory It cannot be initiatory as
they are always made in a 1. Caption. It sets forth the name of the court,
case already filed in court. the title of the action, and the docket number if
It is always filed before It may be filed even after assigned. The title of the action indicates the names of
judgment. judgment. the parties. They shall all be named in the original
There are only nine (9) Any application for relief complaint or petition; but in subsequent pleadings, it
kinds of pleadings not by a pleading is a shall be sufficient if the name of the first party on each
allowed by the Rules of motion. side be stated with an appropriate indication when there
Court. are other parties. Their respective participation in the
It must be written. It may be oral when made case shall be indicated.
in open court or in the
course of a hearing or trial. 2. The body. The body of the pleading sets forth
its designation, the allegations of the party's claims or
Pleadings allowed under the Rules of Court defenses, the relief prayed for, and the date of the
pleading.
(a) Complaint
a. Paragraphs. — The allegations in the body of a
The complaint is the pleading alleging the plaintiff's pleading shall be divided into paragraphs so
cause or causes of action. The names and residences of numbered to be readily identified, each of which
the plaintiff and defendant must be stated in the shall contain a statement of a single set of
complaint. circumstances so far as that can be done with
convenience. A paragraph may be referred to by
(b) Counterclaim its number in all succeeding pleadings.

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 party's
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
b. Headings. — When two or more causes of action
are joined the statement of the first shall be
prefaced by the words "first cause of action,'' of
the second by "second cause of action", and so on
for the others.
When one or more paragraphs in the answer are
addressed to one of several causes of action in the
complaint, they shall be prefaced by the words
"answer to the first cause of action" or "answer to
the second cause of action" and so on; and when
one or more paragraphs of the answer are

Page 41
Civil Procedure
ESGUERRA NOTES
addressed to several causes of action, they shall
be prefaced by words to that effect.
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.
d. Date. — Every pleading shall be dated.
3. Signature and address. Every pleading must be
signed by the party or counsel representing him, stating
in either case his address which should not be a post
office box.
The signature of counsel constitutes a certificate by him
that he has read the pleading; that to the best of his
knowledge, information, and belief there is good ground
to support it; and that it is not interposed for delay.
An unsigned pleading produces no legal effect. However,
the court may, in its discretion, allow such deficiency to
be remedied if it shall appear that the same was due to
mere inadvertence and not intended for delay.
Counsel who deliberately files an unsigned pleading, or
signs a pleading in violation of this Rule, or alleges
scandalous or indecent matter therein, or fails promptly
report to the court a change of his address, shall be
subject to appropriate disciplinary action.
4. Verification. Except when otherwise specifically
required by law or rule, pleadings need not be under
oath, verified or accompanied by affidavit.
How a pleading is verified
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 knowledge and belief.
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.
Purpose of verification:
The purpose of requiring verification is to secure an
assurance that the allegations in the petition are true
and correct, not merely speculative. This requirement is
simply a condition affecting the form of pleadings, and
noncompliance therewith does not necessarily render
the pleading fatally defective. (Torres-Gomez v. Codilla,
G.R. No. 195191. 20 March 2012.)
5. Certification against forum shopping.
The plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading asserting a
claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: (a) that he
has not theretofore commenced any action or filed any
claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge,
no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action or
claim has been filed or is pending, he shall report that
fact within five (5) days therefrom to the court wherein
his aforesaid complaint or initiatory pleading has been
filed.
Effect of failure to comply:
Failure to comply with the foregoing requirements shall
not be curable by mere amendment of the complaint or
other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing.
The submission of a false certification or non-compliance
with any of the undertakings therein shall constitute
indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the
acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for
administrative sanctions.
What is forum shopping?
There is forum shopping "when a party repetitively
avails of several judicial remedies in different courts,
simultaneously or successively, all substantially founded
on the same transactions and the same essential facts
and circumstances, and all raising substantially the
same issues either pending in or already resolved
adversely by some other court." Forum shopping is an
act of malpractice that is prohibited and condemned
because it trifles with the courts and abuses their
processes. It degrades the administration of justice and
adds to the already congested court dockets. (Heirs of
Marcelo Sotto v. Palicte, G.R. No. 159691, 17 February
2014.)
An important factor in determining its existence is the
vexation caused to the courts and the parties-litigants
by the filing of similar cases to claim substantially the
same reliefs. (Id.)
The test to determine the existence of forum shopping is
whether the elements of litis pendentia are present, or
whether a final judgment in one case amounts to res
judicata in the other. Thus, there is forum shopping
when the following elements are present, namely: (a)
identity of parties, or at least such parties as represent
the same interests in both actions; (b) identity of rights
asserted and reliefs prayed for, the relief being founded
on the same facts; and (c) the identity of the two
preceding particulars, such that any judgment rendered
in the other action will, regardless of which party is
successful, amounts to res judicata in the action under
consideration. (Id.)
How allegations made
1997 Rules on Civil Procedure, 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 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.
"Ultimate facts" means the essential facts constituting
the plaintiff's cause of action, or such facts as are so
essential that they cannot be stricken out without
leaving the statement of the cause of action inadequate.
(Cañete, et al. v. Genuino Ice Company, Inc., G.R. No.
154080, 22 January 2008).
Page 42
Civil Procedure
ESGUERRA NOTES
Evidentiary facts – refer to those which are necessary to
prove the ultimate fact or which furnish evidence of the
existence of some other facts.
1997 Rules on Civil Procedure, 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 person that is
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 within the pleader's
knowledge.
1997 Rules on Civil Procedure, Rule 8
Section 2. Alternative claims and defenses. A
party may set forth two or more statements of a claim
or defense alternatively or hypothetically, either in one
cause of action or defense or in separate causes of
action or defenses.
When two or more statements are made in the
alternative and one of them if made independently
would be sufficient, the pleading is not made insufficient
by the insufficiency of one or more of the alternative
statements.
1997 Rules on Civil Procedure, Rule 8
Section 3. Conditions precedent. In any
pleading a general averment of the performance or
occurrence of all conditions precedent shall be sufficient.
1997 Rules on Civil Procedure, Rule 8
Section 5. Fraud and mistake, condition of
mind. In all averments of fraud or mistake the
circumstances constituting fraud or mistake must be
stated with particularity. Malice, intent, knowledge,
or other condition of the mind of a person may be
averred generally.
1997 Rules on Civil Procedure, Rule 8
Section 6. Judgments. In pleading a judgment or
decision of a domestic or foreign court, judicial or quasi-
judicial tribunal, or of a board or officer, it is sufficient to
aver the judgment or decision without setting forth
matter showing jurisdiction to render it.
1997 Rules on Civil Procedure, Rule 8
Section 9. Official documents or act. In
pleading an official document or official act, it is
sufficient to aver that the document was issued or the
act done in compliance with law.
Need to bring 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.
COMPLAINT
1997 Rules on Civil Procedure, Rule 6
Section 3. Complaint. Complaint is the pleading
alleging the plaintiff’s cause or causes of action. The
names and residences of the plaintiff and
defendant must be stated in the complaint.
ALLEGATIONS
1997 Rules on Civil Procedure, Rule 8
Section 1. In General. Every pleading shall
contain in a mathematical and logical form, a plain,
concise and direct statement of the ultimate facts on
which the party relies for his claim and defense, as the
case may be, containing the statement of mere
evidenciary facts.
Manner of making allegations in a Complaint
1. Conditions precedent are matters which must
be complied with before a cause of action arises.
When a claim is subject to a condition precedent,
the compliance of the same must be alleged in the
pleading.
2. Failure to comply with a condition precedent is
an independent ground for a motion to dismiss:
that a condition precedent for filing the claim has
not been complied (Sec. 1[j], Rule 16).
3. When making averments of fraud or mistake,
the circumstances constituting such fraud or
mistake must be stated with particularity (Sec. 5,
Rule 8). It is not enough therefore, for the
complaint to allege that he was defrauded by the
defendant. Under this provision, the complaint must
state with particularity the fraudulent acts of the
adverse party. These particulars would necessarily
include the time, place and specific acts of fraud
committed against him.
4. Malice, intent, knowledge or other conditions of
the mind of a person may be averred
generally(Sec. 5, Rule 8). Unlike in fraud or
mistake, they need not be stated with particularity.
The rule is borne out of human experience. It is
difficult to state the particulars constituting these
matters. Hence, a general averment is sufficient.
5. 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 person that
is 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 within the pleader's
knowledge. (Sec. 4, Rule 8)
Page 43
Civil Procedure
ESGUERRA NOTES
Reyes v. Makati RTC (2008)
Facts: Petitioner Oscar and private respondent Rodrigo
C. Reyes (Rodrigo) are two of the four children of the
spouses Pedro and Anastacia Reyes. Pedro, Anastacia,
Oscar, and Rodrigo each owned shares of stock of Zenith
Insurance Corporation (Zenith), a domestic corporation
established by their family. Pedro died in 1964, while
Anastacia died in 1993. The former had his estate
judicially partitioned among his heirs, but the latter had
not made the same in her shareholding in Zenith. Zenith
and Rodrigo filed a complaint with the Securities and
Exchange Commission (SEC) against Oscar to obtain
accounting of funds and assets of Zenith, and to
determine the shares of stock of deceased Pedro and
Anastacia that were arbitrarily and fraudulently
appropriated. In his answer with counterclaim, Oscar
denied the illegality of the acquisition of shares of
Anastacia and questioned the jurisdiction of SEC to
entertain the complaint because it pertains to settlement
of Anastacia’s estate. The case was then transferred to
Makati Regional Trial Court. Oscar then filed a “Motion to
Declare Complaint as Nuisance or Harassment Suit” and
prayed that the same must be dismissed. The RTC
denied the motion. The motion was elevated to the
Court of Appeals by way of petition for certiorari,
prohibition and mandamus, but was again denied.
Issue: Whether or not the complaint is a mere nuisance
or harassment suit.
Held: The rule is that a complaint must contain a plain,
concise, and direct statement of the ultimate facts
constituting the plaintiff’s cause of action and must
specify the relief sought. Section 5, Rule 8 of the
Revised Rules of Court provides that in all averments of
fraud or mistake, the circumstances constituting fraud or
mistake must be stated with particularity. These rules
find specific application to Section 5(a) of P.D. No. 902-
A which speaks of corporate devices or schemes that
amount to fraud or misrepresentation detrimental to the
public and/or to the stockholders.
Allegations of deceit, machination, false
pretenses, misrepresentation, and threats are largely
conclusions of law that, without supporting statements
of the facts to which the allegations of fraud refer, do
not sufficiently state an effective cause of action. Fraud
and mistake are required to be averred with particularity
in order to enable the opposing party to controvert the
particular facts allegedly constituting such fraud or
mistake. Tested against these standards, charges of
fraud against Oscar were not properly supported by the
required factual allegations. While the complaint
contained allegations of fraud purportedly committed by
him, these allegations are not particular enough to bring
the controversy within the special commercial court’s
jurisdiction; they are not statements of ultimate facts,
but are mere conclusions of law: how and why the
alleged appropriation of shares can be characterized as
“illegal and fraudulent” were not explained nor
elaborated on. The case must be dismissed.
Actions based upon a document
An actionable document is a document relied upon by
either the plaintiff or the defendant.
Whenever an actionable document is the basis of a
pleading, the rule specifically direct the pleader to set
forth in the pleading the substance of the instrument or
the document and:
a. to attach the original or the copy of the document to
the pleading as an exhibit and to be part of the
pleading; or
b. with like effect, to set forth in the pleading said copy
of the instrument or document (Sec. 7, Rule 8).
This manner of pleading a document applies only to one
which is the basis of action or a defense. Hence, if the
document does not have the character of an actionable
document, as when it is merely evidentiary, it need not
be pleaded strictly in the manner prescribed by Sec. 7,
Rule 8.
ANSWER
Defined; in general
1997 Rules on Civil Procedure, Rule 6
Section 4. An answer is a responsive pleading in
which a defending party sets forth his defenses.
Types of Defenses
1. Negative
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. [Rule 6, Section
5(a)]
b. How alleged, generally (Section
10, Rule 8)
A negative defense is stated in the form of a
specific denial, which may be a/an:
(1) Absolute denial
There is absolute denial when the defendant
specifies 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.
(2) Partial denial
There is partial denial when the defendant
denies only a part of the averment, as when he
specifies so much of it as is true and material
and denies the remainder.
(3) Denial by disavowal of knowledge
There is denial by disavowal of knowledge
when the defendant alleges having no
knowledge or information sufficient to form a
belief as to the truth of the material averment
made in the complaint. Such denial must be
made in good faith.
Note: When the defendant alleges having no
knowledge or information sufficient to form a
belief as to the truth of the allegations of the
other party but such matters are plainly and
necessarily within the defendant’s knowledge,
a claim of “ignorance or lack of information”
will not be considered as a specific denial.
(Aquintey v. Tibong, G.R. No. 166704, 20
December 2006)
Page 44
Civil Procedure
ESGUERRA NOTES

Memitas’ evidence reveal that Memita failed to

c. Capacity of parties (Sec.4, Rule 8) prove fraud on Masongsong’s part. Therefore, the trial
A party desiring to raise an issue as to the court is correct in stating that Memitas is liable to
legal existence of any party or the capacity of Masongsong in the amount of P603,520.50 plus interest
any party to sue or be sued in a representative of 12% per annum as agreed upon by the parties and as
capacity, shall do so by specific denial, which stated in the sales invoices.
shall include such supporting particulars as are
peculiarly within the pleader’s knowledge.
e. Negative pregnant
A negative pregnant is a denial pregnant with an
d. Genuineness of documents (Sec. 8,
admission of the substantial facts in the pleading
Rule 8)
responded to. It is not a specific denial and is actually an
Rule: When an action or defense is founded
admission. This arises when the pleader merely repeats
upon a written instrument, copied in or
the allegations in a negative form. (Regalado, Remedial
attached to the corresponding pleading as
Law Compendium (2000), p.177)
provided in the preceding Section, the
genuineness and due execution of the
Philippine American General Insurance Co. v.
instrument shall be deemed admitted unless
Sweet Lines (1992)
the adverse party, under oath, specifically
denies them, and sets forth what he claims to
Facts: A total of 7,000 bags of low density
be the facts.
polyethylene (600 bags of polyethylene 641 and 6,400
bags of polyethylene 647) were shipped from Baton
Exceptions: The requirement of an oath does
Rouge, LA to Manila on board SS Vishva Yash, a vessel
not apply when:
belonging to the Shipping Corporation of India (SCI).
a) the adverse party does not appear to
From Manila, the cargoes were shipped to Davao on
be a party to the instrument; or
board MV Sweet Love, a vessel owned by Sweet Lines.
b) when compliance with an order for an
The consignee was Far East Bank with arrival notice to
inspection of the original instrument
Tagum Plastics, Inc. (“Tagum Plastics”), Tagum, Davao
is refused.
City. The cargoes were insured by Far East Bank with
the Philippine American General Insurance Co
Memita v. Masongsong (2007)
(“Philamgen”). After the shipments were discharged, it
was discovered that there were damages, losses and
Facts: Masongsong, under the business name
shortages on the cargo covered by the bills of lading.
of RM Integrated Services, was the distributor of San
Philamgen and Tagum Plastics commenced a suit against
Miguel Foods, Inc.’s Magnolia chicken
Sweet Lines Inc.(SLI), Davao Arrastre, SCI Line and FE
products. Masongsong supplied Magnolia chicken
Zuellig to recover the cost of damaged shipment.
products on a 25-day payment credit to Memitas Vicor
Philamgen argued, among others, that SLI failed to
Store (“Memitas”) in Burgos Public Market, Bacolod City.
adduce any evidence in support of its defense of
Masongsong filed a complaint for collection of sum of
prescription and that the bills of lading said to contain
money against Memitas for its alleged non-payment of
the shortened periods for filing and for instituting an
purchased goods from the former. In his answer, while
action against the carrier were never offered in
Memitas did not deny that he purchased goods on credit
evidence.
from Masongsong, he claimed, however, that there were
questionable deliveries, short deliveries and
Held: As petitioners are suing upon SLI's
discrepancies, and possible manipulation of delivery
contractual obligation under the contract of carriage as
receipts, hence his refusal to pay. The trial court ruled in
contained in the bills of lading, such bills of lading can
favor of Masongsong, and was upheld by the Court of
be categorized as actionable documents which under the
Appeals. Memitas assail, among others, the admissibility
Rules must be properly pleaded either as causes of
of the sales invoices presented by Masongsong.
action or defenses, and the genuineness and due
execution of which are deemed admitted unless
Held: Memita, in alleging questionable and
specifically denied under oath by the adverse party. The
short deliveries, in effect alleges that Masongsong
rules on actionable documents cover and apply to both a
committed fraud. As the party invoking fraud, Memita
cause of action or defense based on said documents.
has the burden of proof. Whoever alleges fraud or
Petitioners' failure to specifically deny the existence,
mistake affecting a transaction must substantiate his
much less the genuineness and due execution, of the
allegation, since it is presumed that a person takes
instruments in question amounts to an admission.
ordinary care of his concerns and private concerns have
Judicial admissions, verbal or written, made by the
been fair and regular.
parties in the pleadings or in the course of the trial or
other proceedings in the same case are conclusive, no
The best evidence of the transaction between
evidence being required to prove the same, and cannot
Memita and Masongsong are the sales invoices. The
be contradicted unless shown to have been made
sales invoices show that Memita or his representative
through palpable mistake or that no such admission was
acknowledged receipt of Masongsongs deliveries without
made. Moreover, when the due execution and
protest. Memita aired his doubts about the amounts only
genuineness of an instrument are deemed admitted
after Masongsong asked him to pay his credit. Moreover,
because of the adverse party's failure to make a specific
although Memita confronted Masongsong with a check
verified denial thereof, the instrument need not be
dated 1 July 1996 in the amount of P127,238.40 payable
presented formally in evidence for it may be considered
to RM Integrated Services, Masongsong stated that the
an admitted fact.
said amount did not include any transaction in the
present case.
Even granting that petitioners' averment
in their reply amounts to a denial, it has the

Page 45
 Civil Procedure
ESGUERRA NOTES

procedural earmarks of what in the law on

pleadings is called a negative pregnant, that is, a Periods to Plead
denial pregnant with the admission of the
Pleading Time to File
substantial facts in the pleading responded to
which are not squarely denied. It is in effect an General Rule within fifteen (15)
admission of the averment it is directed to. Thus, days after service of
while petitioners objected to the validity of such summons
agreement for being contrary to public policy, the (a) within
existence of the bills of lading and said stipulations were fifteen (15) days
nevertheless impliedly admitted by them. after service of
summons to resident
2. Affirmative agent or to agent or
Defendant is officer in the
An affirmative defense is an allegation of a new foreign private Philippines;
matter which, while hypothetically admitting the juridical entity
material allegations in the pleading of the claimant, (b) within 30
would nevertheless prevent or bar recovery by him. days after receipt of
summons by the
Affirmative defenses include home office of the
(1) fraud, To Complaint foreign private
(2) prescription, entity, when there is
(3) release, neither resident
(4) payment, agent nor officer.
(5) illegality, When service of Within the time
(6) statute of frauds, summons is by specified in the order
(7) estoppel, publication granting leave to
(8) former recovery, serve summons by
(9) discharge in bankruptcy, and publication, which
(10) any other matter by way of confession shall not be less than
and avoidance. sixty (60) days
Non-resident At least sixty (60)
defendant on days to answer
1997 Rules on Civil Procedure, Rule 8 whom
Answer extraterritorial
Section 11. Material averment in the complaint, service of
other than those as to the amount of unliquidated summons is made
damages, shall be deemed admitted when not When filing is a Within fifteen (15)
specifically denied. matter of right days from service of
To Amended amended complaint.
Complaint When filing is NOT Within ten (10) days
 Admissions may be withdrawn by
amendments. The original pleadings are superseded by a matter of right from notice of the
the amended pleading (Insular Veneer, Inc. v. Plan, G.R. court order admitting
No. L-40155, 10 September 1976) the amended
complaint.
 Failure to specifically deny under oath an
actionable document results in the admission of the To Within ten (10) days from service of
genuineness and due execution of said document. Counterclaim pleading.
/
Note: While failure to specifically deny under oath the Crossclaim
genuineness and due execution of an actionable
document generally implies an admission of the same
by the other party, such implied admission is deemed To Same period as with the original
waived if the party asserting the same has allowed the Third(Fourth, defendant.
adverse party to present evidence contrary to the Etc.)- Party
contents of such document without objection. (Central Complaint
Surety v. Hodges, G.R. No. 12730, 22 August 1960).

To Within ten (10) days from the notice of the

Supplemental order admitting the same, unless a
Complaint different period is fixed by the court.
Reply Within ten (10) days from service of the pleading
responded to.

Page 46
Civil Procedure
ESGUERRA NOTES
Waiver of Defenses
General Rule: Defenses and objections not pleaded
either in a motion to dismiss or in the answer are
deemed waived. (Sec.1, Rule 9)
Exceptions:
1) Lack of jurisdiction over the subject matter;
2) Litis pendentia
3) Res judicata; and
4) Prescription of action
COUNTERCLAIMS
Defined and in general
1997 Rules on Civil Procedure, Rule 6
Section 6. Counterclaim. — A counterclaim is any
claim which a defending party may have against an
opposing party.
How raised
Included in answer
(Rule 6, Sec. 9; Rule 11 Sec. 8)
1997 Rules on Civil Procedure, Rule 6
Section 9. Counter-counterclaims and counter-
crossclaims. — A counter-claim may be asserted against
an original counter-claimant.
A cross-claim may also be filed against an original
cross-claimant.
1997 Rules on Civil Procedure, Rule 11
Section 8. Existing counterclaim or cross-claim. —
A compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer shall
be contained therein.
After Answer
(Rule 6 , Sec.9; Rule 11 Sec. 9)
1997 Rules on Civil Procedure, 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.
Permissive Counterclaim
Korean Exchange v. Gonzales (2005)
Facts: The de Mesa siblings are the original
incorporators of the board of directors (“BOD”) of Phi-
Han Development, Inc. (PHDI). The President is Jae II
Aum (“Aum”), a Korean national, was the president and
Lourdes de Mesa Mendoza (“Mendoza”) was the
corporate secretary. PHDI and the de Mera siblings
(‘plaintiffs”) filed a complaint against Aum and Korea
Exchange Bank (KEB) (“Civil Case NO. G-3012”).
Plaintiffs alleged that through the machinations of Aum,
KEB granted a loan to the PHDI for 500kUSD, with the
condition that it be deposited to KEB in the name of
PHDI. Plaintiffs executed a real estate mortgage over
their properties. The only authorized by the BOD of PHDI
are Aum and Mendoza. Aum withdrew 160kUSD from
the account by forging the signature of Mendoza. He
was again allowed to withdraw, leaving 163kUSD as the
balance. Aum could not have withdrawn without the
connivance of KEB. KEB filed a Motion to Dismiss on the
ground that the the case was within SEC’s jurisdiction.
When the Motion was denied, KEB filed a petition for
certiorari in with the CA but which was also dismissed by
said court. They appealed said dismissal to the SC.
Pending resolution, KEB filed a complaint
against the BOD and PHDI for sum of money and
reformation of the mortgage (“Civil Case No. G-3119”).
KEB alleged that the true agreement was to bind only
PHDI as the debtor. KEB prayed that PHDI pay the
50kUSD plus interest. PHDI filed a motion to dismiss on
the ground of forum shopping, saying that KEB should
have filed its counterclaim for the reformation of the
mortgage and collection of 500kUSD in Civil Case No. G-
3012. The RTC denied the Motion to Dismiss. PHDI filed
an answer with counterclaims and alleged that its loan
should be extinguished by set-off.
In Civil Case No. G-3012, KEB filed a motion to
dismiss for forum shopping.
The lower court denied the Motion to dismiss in
Civil Case No. G-3012 on the ground that the causes of
action of PHDI in the latter were different from their
counterclaim in Civil Case No. G-3119. The lower court
also denied the Motion to dismiss the counterclaims of
PHDI in Civil Case No. G-3119 in finding that the reliefs
prayed for by PHDI did not include the collection of the
160kUSD from KEB.
Held: A counterclaim, as now used and understood,
includes both set-off and recoupment and is broader
than both; it includes equitable demands and secures to
the defendant full relief which is a separate action at law
and would have secured him on the same state of facts
being substantially a cross-action by the defendant
against the plaintiff.
A set-off (compensacion) is a money demand
by the defendant against the plaintiff arising upon
contract and constituting a debt independent of and
unconnected with the cause of actions set forth in the
complaint, and may be used to offset a plaintiffs claim
but not to recover affirmatively. As in the case with
recoupment, set-off may be used to offset a plaintiffs
claim but not to recover affirmatively. This is similar to
the English rule which was first authorized by an English
statute in 1729.
A recoupment (reconvencion) differs from a
counterclaim (contrarreclamacion) in that, under a
counterclaim, the defendant may have an affirmative
judgment where he is able to prove a demand in excess
of the plaintiffs demand, whereas in the case of
recoupment, whatever the damages proved by the
defendant, they can go only to reduce or extinguish the
claim against him. Recoupment must arise out of the
contract or transaction upon which the plaintiffs claim is
founded. Recoupment is of French origin and means the
cutting back of the plaintiffs claim by the defendant. It
thus implies an admission of the plaintiffs claim.
Page 47
Civil Procedure
ESGUERRA NOTES
In Lopez v. Gloria and Sheriff of Leyte, the
Court ruled that for set-off or recoupment to be
considered as a counterclaim, the following must
concur: (1) the same be essentially a genuine action of
the defendant against the plaintiff; (2) the same should
have as its object to neutralize, wholly or partially, that
which the plaintiff is trying to obtain; (3) the same does
not have for its object to destroy directly the action of
the plaintiff; and (4) the same ought not to pray for a
positive remedy distinct from the payment of money.
The Court explained that under the first
requisite, independent of any other consideration, a
genuine action is constituted by the defendant which
could be employed separately against the plaintiff. On
the second requisite, the Court declared that the
defendant admits the facts upon which the action of the
plaintiff is based. The second requisite is absent if the
defendant bases his claim on facts which directly destroy
the action or cause of action of the plaintiff. In such a
case, the claim of the defendant would only be a special
defense.[36] On the third requisite, set-off or
recoupment may be merely a defense and not a
counterclaim if it only tends to oppose or to destroy the
action of the plaintiff.
After consideration of the material allegations
of the answer of the respondents in Civil Case No. G-
3119, we believe that the respondents claim of set-off or
compensation of the US$160,000.00 against the claim of
US$500,000.00 of the petitioner against the
respondents is a counterclaim. The respondents admit in
their complaint in Civil Case No. G-3012 and in their
answer in Civil Case No. G-3119 that they secured a
loan from the petitioner in the amount of
US$500,000.00, but maintain that they are not liable for
the payment of the said loan because the petitioner, in
connivance with Jae Il Aum, had withdrawn not only
US$160,000.00 but the entire deposit of US$500,000.00
from the peso and dollar accounts of respondent PHDI
without the consent of the respondents. The latter did
not seek to recover affirmatively from the petitioner.
However, we do not agree with the contention
of the respondents that their counterclaims are
compulsory in nature. Section 7, Rule 5 of the Rules of
Court reads:
Sec. 7. Compulsory counterclaim. 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 an original action before
the Regional Trial Court, the counterclaim may be
considered compulsory regardless of the amount.
As correctly held by the CA, the counterclaim
of the respondents for moral and exemplary damages
against the petitioner is permissive. So is the
respondents claim of a set-off or compensation of the
US$160,000.00 which they sought in Civil Case No. G-
3012 against the US$500,000.00 claimed by the
petitioner against the respondents in Civil Case No. G-
3119.
As the Court held in Yulienco v. Court of
Appeals: A counterclaim is defined as any claim for
money or other relief which a defending party may have
against an opposing party. A counterclaim is compulsory
if (a) it arises out of, or is necessarily connected with,
the transaction or occurrence which is the subject
matter of the opposing partys claim; (b) it does not
require for its adjudication the presence of third parties
of whom the court cannot acquire jurisdiction; and (c)
the court has jurisdiction to entertain the claim. In other
words, a compulsory counterclaim cannot be made the
subject of a separate action but should be asserted in
the same suit involving the same transaction or
occurrence giving rise to it.
The criteria or tests by which the compulsory
or permissive nature of specific counterclaims can be
determined are as follows:
(1) Are the issues of fact and law raised by the claim
and counterclaim largely the same?
(2) Would res judicata bar a subsequent suit on
defendants claim absent the compulsory
counterclaim rule?
(3) Will substantially the same evidence support or
refute plaintiffs claim as well as defendants
counterclaim?
(4) Is there any logical relation between the claim and
the counterclaim?
In the present case, the issues of fact and law
raised by the petitioner in its complaint in Civil Case No.
G-3119, and in the counterclaims of the respondents for
the set-off of not only the US$160,000.00 but the
entirety of the deposits of the respondent PHDI of
US$500,000.00, and for moral and exemplary damages,
are not identical or even largely the same. In the
complaint of the petitioner in Civil Case No. G-3119, the
issue is whether the loan of US$500,000.00 was secured
by respondent PHDI from the petitioner, and whether
the respondents failed to pay the same and its
increment despite the petitioners demands. On the other
hand, the issues in the respondents counterclaims for
set-off of the amount of US$160,000.00 are the
following: whether the signature of respondent Lourdes
Mendoza appearing on the said withdrawal application
was forged; whether the petitioner connived with Jae Il
Aum when the latter withdrew the said amount from the
accounts of respondent PHDI; whether the petitioner
and Jae Il Aum are obliged to pay the said amount to
the respondent PHDI; and whether the obligations of the
respondent to pay their loan of US$500,000.00 is
extrajudicial pro tanto. Any judgment of the court on the
complaint of the petitioner in Civil Case No. G-3119
would not bar any suit on the respondents counterclaim.
The evidence of the petitioner on its claim in its
complaint, and that of the respondents on their
counterclaims are thus different. There is, likewise, no
logical relation between the claim of the petitioner and
the counterclaim of the respondents. Hence, the
counterclaim of the respondents is an initiatory pleading,
which requires the respondents to append thereto a
certificate of non-forum shopping. Their failure to do so
results to the dismissal of their counterclaim without
prejudice.
Page 48
Civil Procedure
ESGUERRA NOTES
Compulsory Counterclaims
It 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 party’s claim and does not require for its
adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. (Rule 6, Sec. 7)
1997 Rules on Civil Procedure, Rule 9
Section 2. Compulsory Counterclaim. — A
compulsory counterclaim, or cross-claim, not set up
shall be barred.
Spouses Mendiola v. Court of Appeals (2012)
The four tests to determine whether a counterclaim is
compulsory or not are the following:
a. Are the issues of fact or law raised by the claim
and the counterclaim largely the same?
b. Would res judicata bar a subsequent suit on
defendant’s claims, absent the compulsory
counterclaim rule?
c. Will substantially the same evidence support or
refute plaintiff’s claim as well as the
defendant’s counterclaim? and
d. Is there any logical relation between the claim
and the counterclaim, such that the conduct of
separate trials of the respective claims of the
parties would entail a substantial duplication of
effort and time by the parties and the court?
Of the four, the one compelling test of
compulsoriness is the logical relation between the claim
alleged in the complaint and that in the counterclaim.
Such relationship exists when conducting separate trials
of the respective claims of the parties would entail
substantial duplication of time and effort by the parties
and the court; when the multiple claims involve the
same factual and legal issues; or when the claims are
offshoots of the same basic controversy between the
parties. If these tests result in affirmative answers, the
counterclaim is compulsory.
Nature of compulsory counterclaims
a. It is auxiliary to the original suit such that as
a general rule, the court must have
jurisdiction over the original action in order to
hear the compulsory counterclaim. The
exception is discussed in Padilla v. Globe
Asiatique below (page 51).
Financial Building Corp. vs. Forbes Park
Association (2000)
Facts: The then Union of Soviet Socialist Republic
(“USSR”) owned a residential lot in Forbes Park, Makati.
Due to the USSR’s representation and repeated
reassurance that it would be building a residence for its
Trade Representative, Forbes Park authorized its
construction and work began shortly thereafter. Despite
this, and upon ocular inspection, Forbes Park discovered
that USSR was constructing a multi-level apartment
building, in violation of Forbes Park’s deeds of
restrictions. Thus, Forbes Park suspended all permits of
entry for the personnel and materials to USSR’s
construction site.
Financial Building, the contractor or USSR’s
building, filed a complaint for injunction and damages
against Forbes Park with the Regional Trial Court of
Makati. The latter, in turn, filed a Motion to Dismiss on
the ground that Financial Building had no cause of action
because it was not the real party-in-interest. Financial
Building’s case was dismissed and terminated.
After the termination of Financial Building’s
case, Forbes Park filed a complaint for damages against
Financial Building arising from violation of its rules and
regulations.
Issue: Whether Forbes Park’s complaint for damages
arising from violation of its rules and regulations is
proper for adjudication in a separate and subsequent
action
Held: No. Financial Building’s case and the instant case
arose from the same occurrence the construction work
done by Financial Building on the USSRs lot in Forbes
Park Village. The issues of fact and law in both cases are
identical. The factual issue is whether the structures
erected by Financial Building violate Forbes Parks rules
and regulations, whereas the legal issue is whether
Financial Building, as an independent contractor working
for the USSR, could be enjoined from continuing with
the construction and be held liable for damages if it is
found to have violated Forbes Parks rules.
As a result of the controversy, Financial
Building seized the initiative by filing the prior injunction
case, which was anchored on the contention that Forbes
Park’s prohibition on the construction work in the
subject premises was improper. The instant case on the
other hand was initiated by Forbes Park to compel
Financial Building to remove the same structures it has
erected in the same premises involved in the prior case
and to claim damages for undertaking the said
construction. Thus, the logical relation between the two
cases is patent and it is obvious that substantially the
same evidence is involved in the said cases.
Moreover, the two cases involve the same
parties. The aggregate amount of the claims in the
instant case is within the jurisdiction of the regional trial
court, had it been set up as a counterclaim in Civil Case
No. 16540. Therefore, Forbes Park’s claims in the instant
case should have been filed as a counterclaim in Civil
Case No. 16540.
A compulsory counterclaim is auxiliary to
the proceeding in the original suit and derives its
jurisdictional support therefrom. A counterclaim
presupposes the existence of a claim against the
party filing the counterclaim. Hence, where there
is no claim against the counterclaimant, the
counterclaim is improper and it must dismissed,
more so where the complaint is dismissed at the
instance of the counterclaimant. In other words, if
the dismissal of the main action results in the
dismissal of the counterclaim already filed, it
stands to reason that the filing of a motion to
dismiss the complaint is an implied waiver of the
compulsory counterclaim because the grant of the
motion ultimately results in the dismissal of the
counterclaim.
Thus, the filing of a motion to dismiss and the
setting up of a compulsory counterclaim are
Page 49
Civil Procedure
ESGUERRA NOTES
incompatible remedies. In the event that a defending
party has a ground for dismissal and a compulsory
counterclaim at the same time, he must choose only one
remedy. If he decides to file a motion to dismiss, he will
lose his compulsory counterclaim. But if he opts to set
up his compulsory counterclaim, he may still plead his
ground for dismissal as an affirmative defense in his
answer. The latter option is obviously more favorable to
the defendant although such fact was lost on Forbes
Park.
The ground for dismissal invoked by Forbes
Park in Financial Building’s case was lack of cause of
action. There was no need to plead such ground in a
motion to dismiss or in the answer since the same was
not deemed waived if it was not pleaded. Nonetheless,
Forbes Park still filed a motion to dismiss and thus
exercised bad judgment in its choice of remedies. Thus,
it has no one to blame but itself for the consequent loss
of its counterclaim as a result of such choice.
b. Effect of dismissal. - If the dismissal of the
complaint somehow eliminates the cause of
the counterclaim, then the counterclaim
cannot survive. Conversely, if the
counterclaim itself states sufficient cause of
action then it should stand independently of
and survive the dismissal of the complaint.
However, if the dismissal is pursuant to
circumstances covered by Section 6, Rule 16
and Sections 2 and 3 of Rule 17, then the
dismissal of the complaint does not result in
the dismissal of the counterclaim, whether
compulsory or permissive.
Pinga vs. Santiago (2006)
Facts: Pinga was a defendant in a complaint for
injunction filed by Santiago in 1998. On October 2004,
the Regional Trial Court (RTC) already ordered the
dismissal of the complaint after Santiago’s counsel had
sought the postponement of the hearing scheduled
then. However, the order of dismissal was subsequently
reconsidered by the RTC in an Order dated 9 June 2005,
which took into account the assurance of Santiago’s
counsel that he would give priority to that case. On the
scheduled hearing, Santiago’s counsel still failed to
appear, thus, the RTC dismissed the complaint and
allowed Pinga to present his evidence ex parte.
Santiago filed a Motion for Reconsideration of
the RTC’s Order, opting however not to seek that their
complaint be reinstated, but praying instead that the
entire action be dismissed and petitioner be disallowed
from presenting evidence ex-parte. The RTC granted the
Motion for Reconsideration and dismissed the
counterclaim, citing as the only ground therefor that
"there is no opposition to the Motion for Reconsideration
of [Pinga]."
Issue: Whether the dismissal of a complaint for failure
to prosecute must necessarily result in the dismissal of
the counterclaim therein.
Held: No. The dismissal of a complaint due to fault of
the plaintiff is without prejudice to the right of the
defendant to prosecute any pending counterclaims of
whatever nature in the same or separate
action. Accordingly, the RTC clearly erred when it
ordered the dismissal of the counterclaim, since Section
3, Rule 17 mandates that the dismissal of the complaint
is without prejudice to the right of the defendant to
prosecute the counterclaim in the same or separate
action. If the RTC were to dismiss the counterclaim, it
should be on the merits of such counterclaim. Reversal
of the RTC is in order, and a remand is necessary for
trial on the merits of the counterclaim.
Ratio: Whatever the nature of the counterclaim, it bears
the same integral characteristics as a complaint; namely
a cause (or causes) of action constituting an act or
omission by which a party violates the right of another.
The main difference lies in that the cause of action in the
counterclaim is maintained by the defendant against the
plaintiff, while the converse holds true with the
complaint. Yet, as with a complaint, a counterclaim
without a cause of action cannot survive.
It would then seemingly follow that if the
dismissal of the complaint somehow eliminates the
cause(s) of the counterclaim, then the counterclaim
cannot survive. Yet that hardly is the case, especially as
a general rule. More often than not, the allegations
that form the counterclaim are rooted in an act or
omission of the plaintiff other than the plaintiff’s
very act of filing the complaint. Moreover, such
acts or omissions imputed to the plaintiff are often
claimed to have occurred prior to the filing of the
complaint itself. The only apparent exception to
this circumstance is if it is alleged in the
counterclaim that the very act of the plaintiff in
filing the complaint precisely causes the violation
of the defendant’s rights. Yet even in such an
instance, it remains debatable whether the
dismissal or withdrawal of the complaint is
sufficient to obviate the pending cause of action
maintained by the defendant against the plaintiff.
These considerations persist whether the
counterclaim in question is permissive or compulsory. A
compulsory counterclaim arises out of or is connected
with the transaction or occurrence constituting the
subject matter of the opposing party’s claim, does not
require for its adjudication the presence of third parties,
and stands within the jurisdiction of the court both as to
the amount involved and the nature of the claim. The
fact that the culpable acts on which the counterclaim is
based are founded within the same transaction or
occurrence as the complaint, is insufficient causation to
negate the counterclaim together with the complaint.
The dismissal or withdrawal of the complaint does not
traverse the boundaries of time to undo the act or
omission of the plaintiff against the defendant, or vice
versa. While such dismissal or withdrawal precludes the
pursuit of litigation by the plaintiff, either through
his/her own initiative or fault, it would be iniquitous to
similarly encumber the defendant who maintained no
such initiative or fault. If the defendant similarly moves
for the dismissal of the counterclaim or neglects to
timely pursue such action, let the dismissal of the
counterclaim be premised on those grounds imputable
to the defendant, and not on the actuations of the
plaintiff.
The other considerations supplied in Metals are
anchored on the premise that the jurisdictional
foundation of the counterclaim is the complaint itself.
The theory is correct, but there are other facets to this
subject that should be taken into account as well. On
the established premise that a counterclaim involves
separate causes of action than the complaint even if
Page 50
Civil Procedure
ESGUERRA NOTES
derived from the same transaction or series of
transactions, the counterclaim could have very well been
lodged as a complaint had the defendant filed the action
ahead of the complainant. The terms ancillary or
auxiliary may mislead in signifying that a complaint
innately possesses more credence than a counterclaim,
yet there are many instances wherein the complaint is
trivial but the counterclaim is meritorious. In truth, the
notion that a counterclaim is, or better still, appears to
be merely ancillary or auxiliary is chiefly the offshoot of
an accident of chronology, more than anything else.
The formalistic distinction between a complaint
and a counterclaim does not detract from the fact that
both of them embody causes of action that have in their
end the vindication of rights. While the distinction is
necessary as a means to facilitate order and clarity in
the rules of procedure, it should be remembered that
the primordial purpose of procedural rules is to provide
the means for the vindication of rights. A party with a
valid cause of action against another party cannot be
denied the right to relief simply because the opposing
side had the good fortune of filing the case first. Yet this
in effect was what had happened under the previous
procedural rule and correspondent doctrine, which under
their final permutation, prescribed the automatic
dismissal of the compulsory counterclaim upon the
dismissal of the complaint, whether upon the initiative of
the plaintiff or of the defendant.
Thus, the present rule embodied in
Sections 2 and 3 of Rule 17 ordains a more
equitable disposition of the counterclaims by
ensuring that any judgment thereon is based on
the merit of the counterclaim itself and not on the
survival of the main complaint. Certainly, if the
counterclaim is palpably without merit or suffers
jurisdictional flaws which stand independent of the
complaint, the trial court is not precluded from
dismissing it under the amended rules, provided that the
judgment or order dismissing the counterclaim is
premised on those defects. At the same time, if the
counterclaim is justified, the amended rules now
unequivocally protect such counterclaim from
peremptory dismissal by reason of the dismissal of the
complaint.
Padilla v. Globe Asiatique Realty Holdings
Corporation (2014)
If the dismissal of the complaint somehow
eliminates the cause of the counterclaim, then the
counterclaim cannot survive. Conversely, if the
counterclaim itself states sufficient cause of action then
it should stand independently of and survive the
dismissal of the complaint.
It bears to emphasize that petitioner’s
counterclaim against respondent is for damages and
attorney’s fees arising from the unfounded suit. While
respondent’s Complaint against petitioner is already
dismissed on the ground of litis pendentia, petitioner
may have very well already incurred damages and
litigation expenses such as attorney’s fees since it was
forced to engage legal representation in the Philippines
to protect its rights and to assert lack of jurisdiction of
the courts over its person by virtue of the improper
service of summons upon it. Hence, the cause of action
of petitioner’s counterclaim is not eliminated by the
mere dismissal of respondent’s complaint.
It may also do well to remember that it is this
Court which mandated that claims for damages and
attorney’s fees based on unfounded suit constitute
compulsory counterclaim which must be pleaded in the
same action or, otherwise, it shall be barred. It will then
be iniquitous and the height of injustice to require the
petitioner to make the counterclaim in the present
action, under threat of losing his right to claim the same
ever again in any other court, yet make his right totally
dependent on the fate of the respondent’s complaint.
If indeed the Court dismisses petitioner’s
counterclaim solely on the basis of the dismissal of
respondent’s Complaint, then what remedy is left for the
petitioner? It can be said that he can still file a separate
action to recover the damages and attorney’s fees based
on the unfounded suit for he cannot be barred from
doing so since he did file the compulsory counterclaim in
the present action, only that it was dismissed when
respondent’s Complaint was dismissed. However, this
reasoning is highly flawed and irrational considering that
petitioner, already burdened by the damages and
attorney’s fees it may have incurred in the present case,
must again incur more damages and attorney’s fees in
pursuing a separate action, when, in the first place, it
should not have been involved in any case at all.
c. The court must have jurisdiction both as to
amount and nature of the counterclaim, except
when the original action was filed before the
Regional Trial Court. In the latter case, the
counterclaim may be considered compulsory
regardless of the amount.
Maceda vs. Court of Appeals (1989)
Facts: Private respondent Cement Center, Inc.
(“Cement Center”) filed a case for ejectment against
Maceda. In his answer to the complaint, Maceda set up a
counterclaim for P240,000, the alleged value of the
improvements which he introduced to the subject
property. Maceda claimed that the original owners of the
property promised to reimburse him of his expenses for
said property’s improvement.
In its decision, the Metropolitan Trial Court
(MTC) ordered Maceda to vacate the premises and pay
the plaintiff P2,000 per month as reasonable
compensation for his use of the premises until he
actually vacates, and P5,000 as attorney's fees. It
ordered Cement Center to pay Maceda P158,000 as the
value of his improvements and repairs, less his accrued
rentals of P64,000 as of December 1985 and the sum of
P12,000 which he had earlier received as partial
reimbursement. The MTC’s mandate for Cement Center
to pay Maceda was upheld by the Regional Trial Court
(RTC).
On appeal, the Court of Appeals modified the
RTC’s decision and set aside Cement Center’s obligation
to pay Maceda P182,200.00 corresponding to the value
of the supposed necessary and useful improvements.
Held: MTC had NO jurisdiction over Maceda’s
counterclaim of P240,000. The Court of Appeals
correctly ruled that the MTC did not have original
jurisdiction over his counterclaim as it exceeds P20,000.
Correspondingly, the RTC did not have appellate
jurisdiction over the claim. The decision of the Municipal
Page 51
Civil Procedure
ESGUERRA NOTES
Trial Court of San Juan awarding him P158,000 on his
counterclaim, and that of the Regional Trial Court raising
the award to P182,200, were invalid for lack of
jurisdiction. The jurisdiction of the Metropolitan Trial
Court in a civil action for sum of money (Maceda's
counterclaim for the value of his improvements is one
such action) is limited to a demand that "does not
exceed twenty thousand pesos exclusive of interest and
costs but inclusive of damages of whatever kind." (Sec.
33, subpar. 1, B.P. Blg. 129.) A counterclaim in the
municipal or city court beyond that jurisdictional
limit may be pleaded only by way of defense to
weaken the plaintiffs claim, but not to obtain
affirmative relief.
d. When original action filed with RTC, the
counterclaim is deemed compulsory
regardless of amount.
1997 Rules on Civil Procedure, Rule 6
Section 7. Compulsory counterclaim. xxx xxx xxx
Such a counterclaim must be within the jurisdiction of
the court both as to the amount and nature thereof,
except that in an original action before the Regional Trial
Court, the counterclaim may be considered compulsory
regardless of the amount.
e. Filing fees and certificate of non-forum
shopping are not required in compulsory
counterclaims
Carpio vs. Rural Bank of Sto. Tomas (Batangas),
Inc (1996)
Facts: Carpio filed a Complaint for annulment of
foreclosure sale and damages) against the Rural Bank
of Sto. Tomas, Batangas, Inc. Respondent bank filed its
Answer with Counterclaim, denying specifically the
material allegations of the complaint, and praying for
damages. Carpio filed a motion to dismiss the
counterclaim on the ground that respondent banks
counterclaim was not accompanied by a certification
against forum shopping.
Held: A certificate of non-forum shopping is NOT
required for the filing of compulsory counterclaims. It
bears stressing that the Section 5, Rule 7 distinctly
provides that the required certification against forum
shopping is intended to cover an initiatory pleading,
meaning an incipient application of a party asserting a
claim for relief. Certainly, respondent bank’s Answer
with Counterclaim is a responsive pleading, filed
merely to counter petitioners complaint that initiates the
civil action. In other words, the rule requiring such
certification does not contemplate a in the case, which may either be the complaint, a cross-
defendants/respondents claim for relief that is derived
only from, or is necessarily connected with, the main
action or complaint. In fact, upon failure by the plaintiff
to comply with such requirement, Section 5, quoted
above, directs the dismissal of the case without
prejudice, not the dismissal of
respondents counterclaim.
f. A compulsory counterclaim is barred if not
raised (Rule 11, Sec. 8 and Rule 9, Sec. 2)
i. A compulsory counterclaim or a cross-claim
that a defending party has at the time he
files his answer shall be contained therein.
(Rule 11, Sec. 8)
ii. A compulsory counterclaim, or cross-claim, not
set up shall be barred. (Rule 9, Sec. 2)
iii. 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 11, Sec. 10)
g. A compulsory counterclaim need not be
answered.
Sarmiento v. San Juan (1983)
Facts: Private respondent Belfast Surety & Insurance
Co. Inc. (“Belfast”) filed a civil action against Sarmiento
for indemnification under an Indemnity Agreement
executed by them in connection with a bail bond.
Sarmiento filed an answer with compulsory
counterclaim. Thereafter, upon motion from Belfast, the
judge scheduled the pre-trial. At the scheduled pre-trial,
only Belfast’s counsel appeared. Sarmiento was declared
as “non-suited” and the court allowed Belfast to present
its evidence ex parte. Upon the denial of Sarmiento’s
motion for reconsideration, he filed a case for certiorari
against the judge, alleging in part that the pre-trial was
premature inasmuch as Belfast did not file an answer to
Sarmiento’s counterclaim. Thus, the "last pleading" has
not yet been filed so as to authorize the judge to
schedule a pre-trial in accordance with the Rules of
Court.
Held: No. An answer to a compulsory counterclaim is
NOT required before pre-trial may be scheduled. While it
may be true that the private respondent had not filed
any answer to the counterclaim contained in the
petitioner's answer, such circumstance does not prevent
the trial court from conducting the pre-trial.
The requirement that the pre-trial shall be
scheduled "after the last pleading has been filed" is
intended to fully apprise the court and the parties of all
the issues in the case before the pre-trial is conducted.
It must be remembered that the issues may only be
ascertained from the allegations contained in the
pleadings filed by the parties. The last permissible
pleading that a party may file would be the reply to the
answer to the last pleading of claim that had been filed
claim, a counterclaim or a third party complaint, etc.
Any pleading asserting a claim must be answered, and
the failure to do so by the party against whom the claim
is asserted renders him liable to be declared in default in
respect of such claim. There are, however,
recognized exceptions to the rule, making the
failure to answer a pleading of claim as a ground
for a default declaration, such as the failure to
answer a complaint in intervention, or a
compulsory counterclaim so intimately related to
the complaint such that to answer to same would
merely require a repetition of the allegations
contained in the complaint.
Page 52
Civil Procedure
ESGUERRA NOTES
In the case presently considered, the nature of
the counterclaim in the petitioner's answer has not been
made clear, except to categorize it as a compulsory
counterclaim. Such being the case, it is likely to be one
where the answering thereof is not necessary, and the
failure to do so would not be a ground to be declared in
default. In any event, the private respondent's failure to
answer the petitioner's counterclaim after the period to
file the answer had lapsed is no obstacle to holding a
pre-trial. The requirement that the last pleading must
have been filed before a pre-trial may be scheduled
should more appropriately be construed to mean not
only if the last pleading had been actually filed, but also
if the period for filing the same had expired.
h. A compulsory counterclaim is allowed under
the Rule on Summary Procedure (Rules of
Summary Procedure (RSP), A. M. No. 00-11-
01-SC, Sec. 3)
The only pleadings allowed to be filed are the
complaints, compulsory counterclaims and cross-claims'
pleaded in the answer, and the answers thereto. (RSP,
Sec. 3)
Remedy for omitted counterclaim due to oversight,
excusable neglect (Rule 11, Sec. 10)
1997 Rules on Civil Procedure, 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.
ANSWER TO COUNTERCLAIM
In General
1997 Rules on Civil Procedure, Rule 6
Section 4. Answer. — An answer is a pleading in
which a defending party sets forth his defenses.
Period to plead
1997 Rules on Civil Procedure, Rule 11
Section 4. Answer to counterclaim or cross-claim.
— A counterclaim or cross-claim must be answered
within ten (10) days from service.
REPLY
Defined and in general
1997 Rules on Civil Procedure, 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.
 A reply is the responsive pleading to an
answer, not to counterclaim or cross-claim.
 Not mandatory—If a party does not file such
reply, all the new matters alleged in the answer are
deemed controverted.
When required
a. Challenge due to authenticity of documents
1997 Rules on Civil Procedure, 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.
 “Actionable document” – the document
relied upon by either the plaintiff and the defendant.
E.g. Promissory note in an action for collection of sum of
money; Deed of mortgage in an action for foreclosure of
mortgage
 Denial under oath means that the denial must
be verified. The absence of an oath will result in the
implied admission of the due execution and genuineness
of the document
 When a party is deemed to have admitted the
genuineness and due execution of an actionable
document, defenses that are implied from said
admission are necessarily waived, such as the following:
a) defenses of forgery of the document;
b) the lack of authority to execute the document;
c) that the party charged signed the document in
some other capacity than that alleged in the
pleading; or
d) that the document was never delivered (Hibberd
v. Rhode McMillian, 32 Phil 476)
 Also cut-off by the admission is the defense
that the document was not in words and figures as set
out in the pleadings (Imperial Textile Mills v. CA, 183
SCRA 584).
 However, the following defenses may still be
interposed despite the implied admission of the
genuineness and due execution of the document, since
these are not inconsistent with the admission of the
genuineness and due execution of the instrument:
a. payment;
b. want of consideration;
c. illegality of consideration;
d. usury;
e. fraud.
Prescription, release, waiver, statute of frauds, estoppel,
former recovery or discharge in bankruptcy are likewise
not barred, since these defenses have no direct
relationship to the concepts of “genuineness and due
execution” (Riano).
Page 53
Civil Procedure
ESGUERRA NOTES
Casent Realty Development Corp. vs. Philbanking
Corporation (2007)
Facts: In 1984, petitioner Casent Realty Development
Corporation executed two promissory notes in favor of
Rare Realty Corporation (Rare Realty) involving the
amounts of P 300,000.00 and P681,500.00. On 8
August 1986, these promissory notes were assigned to
respondent Philbanking through a Deed of Assignment.
Petitioner failed to pay the promissory notes
despite demands. Thus, respondent filed a complaint for
the collection of sum of money. Respondent raised the
defense of extinguishment of obligation, stating that on
27 August 1986, the parties executed a Dacion en Pago
which conveyed petitioner’s property to respondent with
the intention of extinguishing petitioner’s outstanding
accounts with the respondent. Petitioner presented a
Confirmation Statement stating that petitioner no longer
had loans with the respondent.
After respondent presented its evidence,
petitioner filed a Motion for Judgment on Demurrer to
Evidence, pointing out that respondent’s failure to file a
Reply to the Answer which raised the dacion and
Confirmation Statement constituted an admission of the
genuineness and due execution of said documents, and
that since these obligation was extinguished, respondent
no longer had the right to collect from petitioner.
Respondent, on the other hand, filed an Opposition
stating that since it did not file a Reply, all new matters
alleged in the Answer are deemed controverted,
pursuant to Rule 6, Section 10 of the Rules of Court.
Accordingly, the trial court dismissed the
complaint on the ground of extinction of obligation. The
Court of Appeals reversed, ruling that in resolving
petitioner’s Demurrer, the trial court erred in considering
the affirmative defenses raised in the Answer.
Issue: Whether or not respondent’s failure to file a
Reply and deny the Dacion and Confirmation Statement
under oath constitute a judicial admission of the
genuineness and due execution of these documents?
YES.
Held: What should be resolved in a motion to dismiss
based on a demurrer to evidence is whether the plaintiff
is entitled to the relief based on the facts and the law.
The evidence contemplated by the rule on demurrer is
that which pertains to the merits of the case, excluding
technical aspects such as capacity to sue. However, the
plaintiff’s evidence should not be the only basis in
resolving a demurrer to evidence. The "facts" referred to
should include all the means sanctioned by the Rules of
Court in ascertaining matters in judicial proceedings.
These include judicial admissions, matters of judicial
notice, stipulations made during the pre-trial and trial,
admissions, and presumptions, the only exclusion being
the defendant’s evidence.
The defense of Dacion and Confirmation
Statement, which were submitted in the Answer, should
have been specifically denied under oath by respondent
in accordance with Rule 8, Section 8 of the Rules of
Court. These defenses are not deemed controverted by
respondent’s failure to file a Reply. Rule 8, Section 8
specifically applies to actions or defenses founded upon
a written instrument and provides the manner of
denying it. It is more controlling than Rule 6, Section 10
which merely provides the effect of failure to file a
Reply. Thus, where the defense in the Answer is based
on an actionable document, a Reply specifically denying
it under oath must be made; otherwise, the genuineness
and due execution of the document will be deemed
admitted. Since respondent failed to deny the
genuineness and due execution of the Dacion and
Confirmation Statement under oath, then these are
deemed admitted. This judicial admission should have
been considered by the court in resolving the demurrer
to evidence.
Nevertheless, petitioner remains liable to
respondent. In this case, the Dacion and Confirmation
Statement do not sufficiently prove that petitioner’s
liability was extinguished. In executing the Dacion¸ the
intention of the parties was to settle only the loans of
petitioner with respondent, not the obligation of
petitioner arising from the promissory notes that were
assigned by Rare Realty to respondent. When petitioner
and respondent executed the Dacion on 27 August 1986,
what was then covered was petitioner’s subsequent loan
from the respondent in the amount of P3,921,750.00.
It must be noted that the promissory notes
subject of the case were given as security for the loan
granted by respondent to Rare Realty. Through the
Deed of Assignment, respondent stepped into the shoes
of Rare Realty as petitioner’s creditor. Thus, in 1989,
when Rare Realty defaulted in its payment to
respondent, respondent proceeded against the security
assigned to it, that is, the promissory notes issued by
the petitioner. Under these promissory notes, petitioner
is still liable for the amount of P300,000.00 with interest
thereon.
THIRD / FOURTH PARTY COMPLAINT
Defined
1997 Rules on Civil Procedure, Rule 6
Section 11. Third, (fourth, etc.)—party complaint.
— A third (fourth, etc.) — party complaint is a claim that
a defending party may, with leave of court, file against a
person not a party to the action, called the third (fourth,
etc.) — party defendant for contribution, indemnity,
subrogation or any other relief, in respect of his
opponent's claim.
Remedies when denied
When a complaint is dismissed, the third-party
complaint is also dismissed. But if the plaintiff appeals
the dismissal, the defendant-third-party plaintiff must
also appeal to obtain affirmative relief.
ANSWER TO THIRD/FOURTH PARTY COMPLAINT
In general
1997 Rules on Civil Procedure, 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 plaintiff's claim. In proper cases, he may also
assert a counterclaim against the original plaintiff in
respect of the latter's claim against the third-party
plaintiff.
Page 54
Civil Procedure
ESGUERRA NOTES
Time to plead
1997 Rules on Civil Procedure, Rule 11
Section 5. The time to answer a third (fourth,
etc.)—party complaint shall be governed by the same
rule as the answer to the complaint.
Extension of time to plead
1997 Rules on Civil Procedure, Rule 11
Section 11. Extension of time to plead. - Upon
motion and on such terms as may be just, the court may
extend the time to plead provided in the Rules of Court
The court may also, upon like terms, allow an
answer or other pleading to be filed after the time fixed
by these Rules.
(FORMAL REQUIREMENTS)
FILING AND SERVICE OF PLEADINGS, MOTIONS
AND ORDERS
Verification
1997 Rules on Civil Procedure, Rule 7
Section 4. Verification. — Except when otherwise
specifically required by law or rule, pleadings 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 knowledge and belief.
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.
 The verification requirement is “deemed
substantially complied with when one who has
an ample knowledge to swear to 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 (Vda. De Formoso
v. Philippine National Bank, 650 SCRA 35).
 The verification requirement is significant, as it
intends to secure an assurance that the
allegations in a pleading are true and correct
and not the product of the imagination or a
matter of speculation and that the pleading is
filed in good faith (Sarmiento v. Zaratan, 514
SCRA 246)
 A pleading required to be verified but lacks the
proper verification shall be treated as an
unsigned pleading. Hence, it produces no legal
effect. The lack of proper verification is cause
to treat the pleading as unsigned and
dismissible. (Chua v. Torres, 468 SCRA 358)
 It was, however, been held that the absence of
a verification or the non-compliance with the
verification requirement does not necessarily
render the pleading defective. It is only a
formal and not a jurisdictional requirement.
The requirement is a condition affecting only
the form of the pleading and non-compliance
therewith does not necessarily render it fatally
defective. (Benguet Corporation v. Cordillera
Caraballo Mission, Inc.)
Certification against forum shopping
1997 Rules on Civil Procedure, Rule 7
Section 5. The plaintiff or principal party shall
certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed
therewith:
a. that he has not theretofore commenced any
action or filed any claim involving the same issues
in any court, tribunal or quasi-judicial agency and,
to the best of his knowledge, no such other action
or claim is pending therein;
b. if there is such other pending action or claim,
a complete statement of the present status thereof;
and
c. if he should thereafter learn that the same or
similar action or claim has been filed or is pending, he
shall report that fact within five (5) days therefrom to
the court wherein his aforesaid complaint or initiatory
pleading has been filed.
Failure to comply with the foregoing requirements shall
not be curable by mere amendment of the complaint or
other initiatory pleading but shall be cause for the
dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing. The
submission of a false certification or non-compliance
with any of the undertakings therein shall constitute
indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the
acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for
administrative sanctions.
 The certification is mandatory under Sec. 5 of Rule
7 but not jurisdictional since jurisdiction over the
subject of the action is conferred by law. (Robert
Development Corporation v. Quitain, 315 SCRA
150).
 There is forum shopping when a party repetitively
avails of several judicial remedies in different
courts, simultaneously or successively, all
substantially founded on the same transactions and
the same essential facts and circumstances, and all
raising substantially the same issues either pending
in or already resolved adversely by some other
court (Asia United Bank v. Goodland Company,
Inc., G.R. No. 191388).
 Three ways of committing forum shopping:
o Filing multiple cases based on the
same cause of action and with the
same prayer, the previous case not
having been resolved yet;
o Filing multiple cases based on the
same cause of action and the same
prayer, the previous case having
been finally resolved; and
o Filing multiple cases based on the
same cause of action, but with
different prayers (Chua v. Metrobank,
596 SCRA 535).
Page 55
Civil Procedure
ESGUERRA NOTES
 The rationale against forum shopping is that a party
should not be allowed to pursue simultaneous
remedies in two different fora. Filing multiple
petitions or complaints constitutes abuse of court
processes, which tends to degrade the
administration of justice, wreaks havocs upon
orderly judicial procedure, and adds to the
congestion of the heavily burdened dockets of the
courts.
 The certification against forum shopping must be
executed by the party, not the attorney (Damasco
v. NLRC, 346 SCRA 714)
 While it is true that the certification against forum
shopping must be executed by the party-pleader
and not by his counsel, the rule is subject to
exceptions. If 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. (Vda. de
Formoso v. Philippine National Bank).
 Under reasonable or justifiable circumstances, as
when the plaintiffs or petitioners share a common
interest and invoke a common cause of action or
defense, the signature of only one of them
substantially conforms with the Rule. (Vda. de
Formoso v. Philippine Naitonal Bank)
 The failure to comply with the required certification
is not curable by a mere amendment and shall be a
cause for dismissal of the action. The dismissal for
failure to comply with the certification requirement
is not to be done by the court motu proprio. The
rule requires that the dismissal be upon the motion
and after hearing.
 Strict compliance with the provision regarding the
certificate of non-forum shopping underscores its
mandatory nature in that the certification cannot be
altogether dispensed with or its requirements
completely disregarded. It does not, however,
prohibit substantial compliance therewith under
justifiable circumstances, considering especially
that although it is obligatory, it is not jurisdictional.
The substantial compliance rule, however, will not
be applied if dishonesty attended the signing of the
certification.
 It has also been held that the rules on forum
shopping, which were precisely designed to
promote or facilitate the orderly administration of
justice, should not be interpreted with such
absolute literalness as to subvert its own ultimate
and legitimate objective which is the goal of all
rules of procedure—that is, to achieve substantial
justice as expeditiously as possible (Great Southern
Maritime Services v. Acuña, 452 SCRA 422).
However, any liberal application has to be justified
by ample and sufficient reasons that maintain the
integrity of, and not detract from, the mandatory
character of the rule (BPI v. CA, G.R. No. 168313).
 If the acts of the party or his counsel clearly
constitute willful and deliberate forum shopping, the
same shall be a ground for summary dismissal.
Here, no motion to dismiss and hearing are
required. The dismissal in this case is with prejudice
and shall constitute direct contempt, as well as
cause for administrative sanctions.
 A false certification shall constitute indirect
contempt of court without prejudice to the
corresponding administrative and criminal
sanctions.
 Failure to comply with the undertakings in the
certification against forum shopping has the same
effect as the submission of a false certification
(Oliveros v. Sison, 548 SCRA 265).
Ao-As v. CA (2006)
Facts: The Lutheran Church in the Philippines is a
religious organization duly registered with the SEC. At
the time of its incorporation, the church was divided into
three districts, namely: North Luzon District (NLD); the
South Luzon District (SLD); and the Mindanao District
(MDD). Subsequently, new districts were added. Since
the addition of the new districts an 11 member board of
directors representing 5 districts managed the church
without challenged from the membership until several
years later when certain controversies arose involving
the resolutions of the Board terminating the service of
the LCP business manager and corporate treasurer since
1979, Mr. Hipe. The controversies divided the board into
two groups the Ao-as group and the Batong group.
The termination of Mr. Hipe sparked a series of
cases filed in different tribunals between the Ao-As
group and the Batong group. One of which is the SEC
case No. 3857 for accounting and damages with prayer
for preliminary injunction and appointment of a
management committee, filed by the Ao-As group
against the Batong group. This SEC case reached the
Court of Appeals, the CA held that the issues raised by
the Ao-As group in the said case were already raised
and passed upon in other cases pending at the time the
Ao-As group filed their SEC case.
Held: Ao-As group did NOT commit deliberate and
intentional forum shopping. The elements of forum
shopping are: (a) identity of parties, or at least such
parties as represent the same interests in both actions;
(b) identity of rights asserted and the relief prayed for,
the relief being founded on the same facts; and (c) the
identity of the two preceding particulars, such that any
judgment rendered in the other action will, regardless of
which party is successful, amount to res judicata in the
action under consideration.
Otherwise stated, there is forum shopping
where a litigant sues the same party against whom
another action or actions for the alleged violation of the
same right and the enforcement of the same relief is/are
still pending. The defense of litis pendentia in one case
is a bar to the other/others; and, a final judgment is one
that would constitute res judicata and thus would cause
the dismissal of the rest. Absolute identity of the parties
is not required. It is enough that there is substantial
identity of the parties. It is enough that the party
against whom the estoppel is set up is actually a party
to the former case. There is identity of causes of action
if the same evidence will sustain the second action. The
principle applies even if the relief sought in the two
cases may be different. Forum shopping consists of filing
multiple suits involving the same parties for the same
cause of action, either simultaneously or successively,
for the purpose of obtaining a favorable judgment.
As the present jurisprudence now stands,
forum shopping can be committed in three ways: (1)
Page 56
Civil Procedure
ESGUERRA NOTES
filing multiple cases based on the same cause of action
and with the same prayer, the previous case not having
been resolved yet (litis pendentia); (2) filing multiple
cases based on the same cause of action and the same
prayer, the previous case having been finally resolved
(res judicata); and (3) filing multiple cases based on the
same cause of action but with different prayers (splitting
of causes of action, where the ground for dismissal is
also either litis pendentia or res judicata11 ). If the forum
shopping is not considered willful and deliberate, the
subsequent cases shall be dismissed without prejudice
on one of the two grounds mentioned above. However, if
the forum shopping is willful and deliberate, both (or all,
if there are more than two) actions shall be dismissed
with prejudice.
The six grounds originally relied upon by the
Ao-As group in SEC-SICD Case No. 3857 are entirely
different from the causes of action in the other cases
NLRC Cases No. 03-01935-90 and 04-01979-90, Civil
Cases No. 133394-CV and 131879-CV, and SEC-SICD
Cases No. 3556 and 3524.
It is true that the causes of action in the latter
cases were included as additional grounds in SEC-SICD
Case No. 3857 for the appointment of the management
committee and for accounting "of all funds, properties
and assets of LCP which may have come into their
possession during their incumbency as officers and/or
directors of LCP." However, the creation of a
management committee and the prayer for accounting
could not have been asked for in the labor (NLRC Cases
No. 03-01935-90 and 04-01979-90) and forcible entry
(Civil Cases No. 133394-CV and 131879-CV) cases.
As regards the other SEC Cases, though, the
Ao-As group could have indeed prayed for the creation
of the management committee and the accounting of
the funds of the LCP. In fact, as stated by the Court of
Appeals, the petitioner in SEC-SICD Case No. 3556 had
prayed for the appointment of a management committee
in a motion dated 18 June 1991. This motion, however,
was subsequent to the filing of SEC-SICD Case No. 3857
on 17 August 1990, for which reason the SEC-SICD
ruled that such motion cannot be given due course
considering that it was one of the incidents of SEC-SIDC
Case No. 3857. In effect, the SEC-SIDC had denied the
subsequent motion on the ground of litis pendentia. But
should SEC-SICD Case No. 3857, which contains the
earlier prayer to create a management committee, be
likewise dismissed? Following the rules set forth in the
preceding paragraphs, it would depend on whether the
different SEC cases constitute willful and deliberate
forum shopping on the part of Ao-As group.
We hold that this is not a case of willful and
deliberate forum shopping and, hence, the SEC-SICD
Case No. 3857, which contains the earlier prayer to
create a management committee, should not be
dismissed. The reason for this is the strict evidentiary
requirement needed to grant a prayer to create a
management committee. The power of the SEC to create
a management committee is found in Section 6(d) of
Presidential Decree No. 902-A, as amended, which
provides:
Sec. 6. In order to effectively exercise such
jurisdiction, the Commission shall possess the following
powers:
d) To create and appoint a management
committee, board or body upon petition or motu propio
to undertake the management of corporations,
partnerships or other associations not supervised or
regulated by other government agencies in appropriate
cases when there is imminent danger of dissipation,
loss, wastage or destruction of assets or other properties
or paralization of business operations of such
corporations or entities which may be prejudicial to the
interest of the minority stockholders, parties-litigants or
the general public.
Evidently, it should be difficult to deduce the
"imminent danger of dissipation, loss, wastage or
destruction of assets or other properties" from an
allegation of a single act of previous misappropriation or
dissipation on the part of the Batong group. It is often
only when the previous misappropriations and
dissipations have become extensive and out of control
that it can be candidly said that there is an imminent
danger of further dissipation. The Ao-As group cannot be
faulted therefore for not praying for the creation of a
management committee in the first couple of cases it
filed with the SEC, and neither can they be faulted for
using the causes of action in previously filed cases to
prove their allegation of imminent dissipation. We
cannot rule out the possibility that the danger of
imminent dissipation of the corporate assets became
apparent only in the acts of the respondents subsequent
to the filing of the first two SEC cases.
Forum Shopping certificate for a corporation
 A juridical entity, unlike a natural person, can only
perform physical acts through properly delegated
individuals. The certification against forum shopping
where the plaintiff or a principal party is a juridical
entity like a corporation, may be executed by
properly authorized persons. This person may be
the lawyer of the corporation. As long as he is duly
authorized by the corporation and has personal
knowledge of the facts required to be disclosed in
the certification against forum shopping, the
certification may be signed by the authorized
lawyer (National Steel Corporation v. CA, 388 SCRA
85).
PAL v. Flight Attendants and Stewards Assn of the
Philippines (FASAP) (2006)
Facts: FASAP filed a complaint for unfair labor practice,
illegal suspension, and illegal dismissal against PAL
before the Labor Arbiter of the NLRC. The NLRC ruled in
favor of FASAP. The NLRC modified the arbiter’s decision
by setting aside the finding that PAL was guilty of unfair
labor practice, but affirming the rest of the decision.
Subsequently, PAL filed a petition for certiorari
with the CA, it was accompanied by a Certification of
Non-forum shopping executed by Cesar R. Lamberte and
Susan Del Carmen, Vice-President Human Resources
and Assistant Vice-President Cabin Services of PAL,
respectively, who are not parties to the case. The
certification, however, was without proof that the two
affiants had authority to sign in behalf of petitioners. As
a result, the Court of Appeals dismissed the case for
failure to show the authority of affiants to sign for PAL
and for failure of the other petitioners to join in the
execution of the certification. A motion for
reconsideration was filed with a Secretary’s Certificate
attached evidencing that affiants Cesar R. Lamberte and
Page 57
Civil Procedure
ESGUERRA NOTES
Susan Del Carmen have been authorized by Board
Resolution No. 00-02-03 to initiate and/or cause to be
filed on behalf of PAL petitions and pleadings in all labor-
related cases. As to the other petitioners, it was argued
that they are mere nominal parties so that their failure
to execute the certification does not justify dismissal of
the petition. Despite this submission, the Court of
Appeals denied the motion for reconsideration. Hence,
the case is now before this Court.
Held: The petitioner violated the rules on certificate of
non-forum shopping. The necessity for a certification of
non-forum shopping in filing petitions for certiorari is
found in Rule 65, Section 1, in relation to Rule 46,
Section 3 of the Rules of Court. These provisions require
it to be executed by the corresponding petitioner or
petitioners. As no distinction is made as to which party
must execute the certificate, this requirement is made to
apply to both natural and juridical entities. When the
petitioner is a corporation, the certification should be
executed by a natural person. Furthermore, not just any
person can be called upon to execute the certification,
although such a person may have personal knowledge of
the facts to be attested to.
This Court has explained that a corporation has
no power except those conferred on it by the
Corporation Code and those that are implied or
incidental to its existence. The exercise of these powers
is done through the board of directors and/or duly
authorized officers and agents. Given these corporate
features, the power of a corporation to sue in any court
is generally lodged with the board of directors. The
board, in turn, can delegate the physical acts needed to
sue, which may be performed only by natural persons,
to its attorneys-in-fact by a board resolution, if not
already authorized under the corporate by-laws.
Thus, only individuals vested with authority by
a valid board resolution may sign the certificate of non-
forum shopping in behalf of a corporation. In addition,
the Court has required that proof of said authority must
be attached. Failure to provide a certificate of non-forum
shopping is sufficient ground to dismiss the petition.
Likewise, the petition is subject to dismissal if a
certification was submitted unaccompanied by proof of
the signatory’s authority.
The petition filed with the Court of Appeals had
a certification of non-forum shopping executed by Cesar
R. Lamberte and Susan Del Carmen. The certification,
however, was without proof of authority to sign. When a
motion for reconsideration was filed, a Secretary’s
Certificate was submitted as proof that the board of
directors of PAL had authorized the two to execute the
certificate. Nonetheless, the Court finds that this belated
submission is an insufficient compliance with the
certification requirement.
This Court has allowed the reinstatement of
petitions that were dismissed due to lack of proof of
authority to sign the certification upon its subsequent
submission, saying that this amounted to
substantial compliance. The rationale was that
the signatories, at the time of execution of the
certification, were in fact authorized to sign, although
proof of their authority was lacking.
This is not what happened in this case. A
perusal of the Secretary’s Certificate submitted reveals
that the authority to cause the filing of the petition was
granted on February 15, 2000. The petition, on the other
hand, was filed on January 24, 2000 and was dismissed
by the Court of Appeals on January 31, 2000. This
means that at the time the certification was signed,
Cesar R. Lamberte and Susan Del Carmen were not duly
authorized by the Board of Directors of PAL and,
consequently, their signing and attestations were not in
representation of PAL. This effectively translates to a
petition that was filed without a certification at all as
none was issued by PAL, the principal party to the case.
The required certification of non-forum
shopping must be valid at the time of filing of the
petition. An invalid certificate cannot be remedied by the
subsequent submission of a Secretary’s Certificate that
vests authority only after the petition had been filed.
Filing and service defined
1997 Rules on Civil Procedure, 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.
o If a party has not appeared by counsel, then
service must be made upon him.
o If a party has appeared by counsel, then service
upon said party shall be made upon his counsel or
one of them, unless service upon the party himself
is ordered by the court.
o The rule is that when a party is represented by
counsel in an action in court, notices of all kinds,
including motions, pleadings, and orders must be
served on said counsel and notice to him is notice
to the client. (People v. Gabriel, 501 SCRA 197).
o It has been held that notice or service made
upon a party who is represented by counsel is a
nullity. As a rule, notice to the client and not to his
counsel of record is not notice in law unless for
instance when the court or tribunal orders service
upon the party or when the technical defect in the
manner of notice is waived. (Heirs of Benjamin
Mendoza v. CA, 565 SCRA 506).
o Where one counsel appears for several parties,
service shall be made upon said counsel but he
shall be entitled only to one copy of any paper
served upon him by the opposite side.
Modes of Service
a. In general, filing
1997 Rules on Civil Procedure, Rule 13
Section 3. Manner of filing. — The filing of
pleadings, appearances, motions, notices, orders,
judgments and all other papers shall be made by
presenting the original copies thereof, plainly indicated
as such, personally to the clerk of court or by sending
Page 58
Civil Procedure
ESGUERRA NOTES
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
 There are two modes of filing, to wit:
o by presenting the original copy of the pleading
notice, appearance, motion, order or judgment
personally with the clerk of court or
o by registered mail.
 In the first mode, the clerk of court shall indicate or
endorse on the pleading or paper filed, the date and
hour of filing.
 In the second mode, the date of mailing as shown
by the post office stamp on the envelope or registry
receipt shall be considered as the date of filing,
payment or deposit in court.
b. In general, service
1997 Rules on Civil Procedure, 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.
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.
 Under the Rules, there are two modes of
service of pleadings, motions, notices, orders,
judgments, and other papers:
(a) personally or by
(b) mail.
 However, if personal service and service by
mail cannot be made, service shall be done by
substituted service.
i. Personal
1997 Rules on Civil Procedure, 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 office, or his office
is not known, or he has no office, then by leaving the
copy, between the hours of eight in the morning and
six in the evening, at the party's or counsel's
residence, if known, with a person of sufficient age
and discretion then residing therein.
 Personal service is made by:
(a) delivering a copy of the papers personally
to the party or his counsel, or
(b) or by leaving the papers in his office with
his clerk or a person having charge thereof.
If no person is found in the office, or his office is not
known or he has no office, then by leaving a copy of
the papers at the party’s or counsel’s residence, if
known, with a person of sufficient age and discretion
residing therein between eight in the morning and six
in the evening.
ii.Mail
1997 Rules on Civil Procedure, 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 prepaid, 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
senders or the addressee, service may be done by
ordinary mail. (5a; Bar Matter No. 803, 17 February
1998)
 The preferred service by mail is registered mail.
Service by ordinary mail may be done only if no
registry service is available in the locality of either
the sender or the addressee.
 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 is earlier.
c. Substituted service
1997 Rules on Civil Procedure, 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 of such delivery.
 This mode is availed of only when there is failure to
effect service personally or by mail. This failure
occurs when the office and residence of the party or
counsel are unknown.
 Subsituted service is effected by delivering the copy
to the clerk of court, with proof of failure of both
personal service and service by mail.
d. Priority
1997 Rules on Civil Procedure, 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.
Page 59
Civil Procedure
ESGUERRA NOTES
 The service and filing of pleadings and other papers
shall be done personally, whenever practicable. This
is the preferred mode of service (Uy v. Medina). If
another mode of service is used other than personal
service, the service must be accompanied by a
written explanation why the service or filing was
not done personally. Exempt from this explanation
are the service of papers emanating from the court.
A violation of this requirement may be cause for the
paper to be considered as not having been filed.
Upon party in default
1997 Rules on Civil Procedure, Rule 9
Section 13. Default; declaration of. — 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.
Completion of service
1997 Rules on Civil Procedure, Rule 13
Section 10. Completeness of service. — 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.
 Upon actual delivery, personal service
deemed complete.
 Service by ordinary mail is complete upon the
expiration of ten (10) days after mailing,
unless the court otherwise provides.
 Substituted service is complete at the time of
delivery of the copy to the clerk of court.
Proof of filing and service
1997 Rules on Civil Procedure, 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 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.
1997 Rules on Civil Procedure, 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 of 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.
 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 proved by the written or
stamped acknowledgment of its filing by the clerk
of court on a copy of the same.
 If the pleading or paper is filed by registered mail,
the proof of filing is by the registry receipt and by
the affidavit of the person who did the mailing,
containing a full statement of the date and place of
depositing the mail in the post office in a sealed
envelope addressed to the court, with postage fully
prepaid, and with instructions to the postmaster to
return the mail to the sender after ten (10) days if
not delivered.
 Proof of personal service shall consist of the written
admission of the party served. It may also be
proven by the official return of the server, or the
affidavit of the party serving, containing full
information of the date, place and manner of
service.
 If service is by registered mail, the proof shall
is
consist of the affidavit of the person mailing and the
registry receipt issued by the mailing office. The
registry return card is to 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.
 If the service is by ordinary mail, proof thereof shall
consists of the affidavit of the person mailing of the
facts showing compliance with Section 7, Rule 13.
Lis Pendens
1997 Rules on Civil Procedure, Rule 13
Section 14. Notice of lis pendens. — 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 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
Page 60
Civil Procedure
ESGUERRA NOTES
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 rights of the party who
caused it to be recorded.
AMENDED AND SUPPLEMENTAL PLEADINGS
AMENDMENTS
In General
Pleadings may be amended:
(1) by adding or striking out an allegation or the
name of any party, or
(2) by correcting a mistake in the name of a party
or a mistaken or inadequate allegation or
description in any other respect
Purpose: So that the actual merits of the controversy
may speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner.
Liberality
Barfel dev’t. Corp v. CA (1993)
Facts: Barfel sold to Reginas two parcels of land with
two houses erected thereon in Ayala Alabang, stipulating
that the Barfel will apply the payment of the cash
portion of the purchase price to the removal of any and
all liens on the properties. The contract stated that apart
from a BPI mortgage and the Deed of Restrictions
annotated at the back of the title, the subject property
was free from all liens. Reginas made the downpayment
upon signing the agreement.
It was later discovered that there was
apparently a second mortgage with the PISO/Central
Bank. Upon this information, Victor Barrios assured the
buyer that the second mortgage has been reduced and
that he will submit the necessary documents to support
a legal and valid acceptable arrangement for the release
of such mortgage. Thereafter, the PSB granted Reginas
loan, which again subjected aforesaid properties to a
mortgage. PSB now promises to pay directly to BPI
from the proceeds of the loan and pay the sellers the
purchase price. The latter conformed to the
arrangement.
Given the prior assurance of a workable
arrangement regarding the Central Bank mortgage, the
buyers now manifested its willingness to pay P2M ahead
of the proceeds for the PSB loan. Notwithstanding such
negotiations however, the sellers here are in gross and
evident bad faith and malicious breach of contract for
they have failed to comply with the obligation to release
the second mortgage. BPI further averred that the
sellers actually disauthorized them to consummate the
transaction despite previous arrangements.
Reginas and Zaragoza filed a complaint for
specific performance and damages against Barfel and
the Spouses Barrios. Pre-trial was conducted and both
parties presented evidence.
During Barfel’s presentation, Reginas filed a
motion for leave to file an amended complaint and
motion to admit the same. The amendment sought to
implead PISO bank as additional party defendant and
compel it to accept payment of the existing second
mortgage from Reginas, since no complete relief can be
had unless the second mortgage is released.
Barfel opposed. The RTC admitted the
amended complaint. The CA sustained the lower court’s
order saying that the amendment was made without
intent to delay the action. The essence of liberal
construction was accorded by the courts.
Held: The amended complaint should not be allowed.
The amendment was made with intent to delay the
action and substantially alters the cause of action of
Reginas and the defense of Barfel. After the case is set
for hearing, substantial amendments may be made only
upon leave of court. Such leave may be refused if it
appears that the motion was made with intent to delay
the action or that the cause of action or defense is
substantially altered. (Sec. 3, Rule 10)
The amendment sought by private
respondents, which is to include a new party defendant
at a late stage in the proceeding, is not a formal but a
substantial one. Private respondents will have to present
additional evidence on the PISO second mortgage. The
effect would be to start trial anew with the parties
recasting their theories of the case. The correct amount
of the second mortgage owed by petitioners to PISO
bank (apparently a controverted point), would have to
be litigated and this could be time consuming.
As a general policy, liberality in allowing
amendments is greatest in the early stages of a
law suit, decreases as it progresses and changes
at times to a strictness amounting to a prohibition.
This is further restricted by the condition that the
amendment should not prejudice the adverse
party or place him at a disadvantage.
Form
When any pleading is amended, the following shall be
filed:
(1) a new copy of the entire pleading,
(2) incorporating the amendments, which shall be
indicated by appropriate marks,. (Sec. 7, Rule
13)
Effect
An amended pleading supersedes the pleading it
amends.
 However, admissions in superseded pleadings
may be received in evidence against the
pleader; and
 Claims or defenses alleged therein not
incorporated in the amended pleading shall be
deemed waived. (Sec. 8, Rule 10)
Kinds of amendment
Amendments may either be formal or substantial.
Formal amendment is one, which seeks to correct a
mere defect in the designation of the parties and other
clearly clerical or typographical error. (Rule 10, Sec. 4)
Amendments, which go beyond such corrections, are
substantial.
Page 61
Civil Procedure
ESGUERRA NOTES
Formal amendments may be 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. (Rule 10, Sec. 4) Except where the amendment is
a matter of right, substantial amendment may be made
only upon leave of court. Such leave may be refused if it
appears to the court that the motion was made with
intent to delay.
Godinez vs. Court of Appeals (2007)
Facts: On August 30, 2000, Delfina Village Subdivision
Homeowners Association (DVSHA) (“respondent”), filed
with the Regional Trial Court, Tagum City, Davao del
Norte, an amended complaint for injunction and
damages against spouses Zosimo and Elizabeth Godinez
and their son Edwin (“petitioners”), The complaint
alleges that petitioners were operating a mineral
processing plant in the annex of their residential house
located within Delfina Village. Municipal Ordinance No.
63 s. 1993, has classified the village, as a medium-
density residential district.
On September 13, 2000, petitioners filed their
answer raising the following affirmative defenses: a) the
complaint states no cause of action; b) respondent has
no capacity to sue; c) it is not a real party in interest; d)
the complaint fails to implead the real parties in
interest; and e) respondent failed to refer the case for
conciliation to the barangay before filing its complaint.
On April 3, 2001, the trial court issued an
Order directing respondent to amend its complaint and
attach thereto proofs showing that it is a juridical person
with capacity to sue and that it is the real party in
interest.
On April 16, 2001, respondent submitted its
amended complaint impleading, as additional plaintiffs,
its officers and members, and attaching thereto its
Certificate of Registration with the Home Insurance and
Guaranty Corporation, as well as its Articles of
Incorporation and By-Laws.
Held: In resolving this issue, we are guided by two
principles. First, there is nothing sacred about processes
or pleadings and their forms or contents, their sole
purpose being to facilitate the application of justice to
the rival claims of contending parties. Hence, pleadings
as well as procedural rules should be construed liberally.
Second, the judicial attitude has always been favorable
and liberal in allowing amendments to a pleading in
order to avoid multiplicity of suits and so that the real
controversies between the parties are presented, their
rights determined, and the case decided on the merits
without unnecessary delay.
Here, we find no reason to deviate from the
foregoing dicta. It is on record that in its first amended
complaint, respondent DVSHA alleged that it is a
registered association. However, it failed to attach to its
complaint the supporting certificate of registration, as
well as its articles of incorporation and by-laws. In their
answer, petitioners promptly assailed respondent’s lack
of personality to sue. The trial court, desiring to
determine if indeed respondent has the capacity to sue,
directed respondent to amend its complaint anew by
attaching thereto the necessary documents.
Sections 1 and 4, Rule 10 of the 1997 Rules of
Civil Procedure, as amended, provide:
SEC. 1. Amendments in general.
Pleadings may be amended by adding or
striking out an allegation or the name of any
party, or by correcting a controversy may
speedily be determined without regard to
technicalities, and in the most expeditious
and inexpensive manner.
SEC. 4. Formal amendments. A
defect in the designation of the
parties and other clearly clerical or
typographical errors may be summarily
corrected by the court at any stage of the
action, at its initiative or on
motion, provided no prejudice is caused
thereby to the adverse party.
Here, the amendment of respondent’s
complaint at the instance of the trial court merely
involves the designation of respondent as a proper
party, i.e., whether it has a juridical personality and,
therefore, can sue or be sued. We note that when
respondent amended its complaint by attaching the
required supporting documents, such amendment did
not change its cause of action. Nor was its action
intended to prejudice petitioners. Verily, the Court
of Appeals correctly ruled that the RTC did not gravely
abuse its discretion when it ordered the amendment of
the complaint.
Amendments as a matter of right
1997 Rules on Civil Procedure, Rule 10
Section 2. Amendments as a matter of right - A
party has the right to amend his pleading once before a
responsive pleading thereto is served by the other
party; in the case of a reply, at any time within ten (10)
days after is served.
The right to amend a pleading as a matter of right
may be exercised only once, Hence, even if no
responsive pleading has yet been served, if the
amendment is subsequent to a previous amendment
made as a matter of right, the subsequent amendment
must be with leave of court.
A motion to dismiss is not a responsive pleading.
Even if the motion to dismiss is granted by the court,
the plaintiff may still amend his complaint as a matter of
right before the dismissal becomes final as long as o
answer has yet been served (Bautista vs. Maya-Maya
Cottages, G.R No. 148361, November 29, 2005).
The court would be in error if it refuses to admit an
amended pleading when its exercise is a matter of right.
The error is correctible by mandamus (Breslin vs. Luzon
Stevedoring, G.R. No. L-3346, September 29, 1949)
because the trial court’s duty to admit an amendment
complaint made as a matter of right is purely
ministerial.
Alpine Lending Investors vs. Corpuz (2006)
Facts: This case stemmed from a complaint
for replevin filed by Estrella Corpuz (“respondent”),
against Alpine Lending Investors (“Alpine”), one of the
petitioners herein, and Zenaida Lipata (“Zenaida”). The
complaint alleges that Zenaida was respondents former
neighbor. Pretending to help respondent in securing a
Page 62
Civil Procedure
ESGUERRA NOTES
Garage Franchise from the Land Transportation Office
(LTO), Zenaida took from her the original registration
papers of her vehicle, a Toyota Tamaraw FX with Plate
No. UMR 660. Zenaida, using respondent’s registration
papers in representing herself as the owner of the
vehicle, was able to retrieve it
from Richmond Auto Center where it was being
repaired. Thereafter, Zenaida disappeared with the
vehicle. Respondent then reported the incident to the
LTO Muntinlupa City Branch. There, she was informed
that Zenaida mortgaged her vehicle with petitioner
Alpine. The LTO showed respondent the Chattel
Mortgage Contract bearing her forged signature.
Forthwith, respondent informed Alpine about
the spurious mortgage and demanded the release of her
vehicle. Alpine promised to comply with her request on
condition that Zenaida should first be charged criminally.
Respondent then caused the filing with the
Metropolitan Trial Court of Caloocan City complaints for
falsification of private document and estafa against
Zenaida. Eventually, a warrant of arrest was issued
against her. Respondent informed Alpine about these
developments, but the latter still refused to turn over
the vehicle to her.
Instead of filing an answer to respondent’s
complaint, Alpine submitted to the RTC a motion to
dismiss on the ground that it is not a juridical person,
hence, not a proper party in the case.
In an Order dated September 2, 2002, the RTC
denied Alpines motion to dismiss. Alpine then filed a
motion for reconsideration, but it was denied. The RTC
then directed respondent to file her amended complaint
within ten (10) days.
However, respondent filed her Amended
Complaint with an accompanying Motion to Admit
Amended Complaint two (2) days late. Nonetheless, in
an Order dated December 13, 2002, the RTC admitted
the amended complaint.
On January 3, 2003, Alpine filed a Motion
to Expunge respondents motion to admit amended
complaint on the ground that the latter motion was not
accompanied by a notice of hearing.
In her Comment on Alpines motion to
expunge, respondent averred that her contested motion
need not be accompanied by a notice of hearing as it is
a non-litigated motion.
On January 24, 2003, the RTC denied Alpines
motion to expunge for lack of merit. Alpine moved for a
reconsideration, but this was denied in an Order
dated January 28, 2003.
Held: Sections 1 and 2, Rule 10 of the 1997 Rules of
Civil Procedure, as amended, provide:
SEC. 1. Amendments in general. Pleadings
may be amended by adding or striking 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.
SEC. 2. Amendments as a matter of
right. A party may amend his pleading
once as a matter of right at any time
before a responsive pleading is
served or, in the case of a reply, at any
time within ten (10) days after it is served.
As earlier mentioned, what petitioner Alpine
filed in Civil Case No. C-20124 was a motion to dismiss,
not an answer. Settled is the rule that a motion to
dismiss is not a responsive pleading for purposes of
Section 2, Rule 10. As no responsive pleading had been
filed, respondent could amend her complaint in Civil
Case No. C-20124 as a matter of right. Following this
Courts ruling in Breslin v. Luzon Stevedoring Co.,
considering that respondent has the right to amend her
complaint, it is the correlative duty of the trial court to
accept the amended complaint; otherwise, mandamus
would lie against it. In other words, the trial courts duty
to admit the amended complaint was purely
ministerial. In fact, respondent should not have filed a
motion to admit her amended complaint.
It has always been the policy of this Court to
be liberal in allowing amendments to pleadings in order
that the real controversies between or among the
parties may be presented and cases be decided on the
merits without delay.
Amendments by leave of court
1997 Rules on Civil Procedure, Rule 10
Section 3. Amendments by leave of court. - When
a substantial amendment is sought to be made after a
responsive pleading has already been served, it is
necessary for the party seeking such amendment to
obtain leave of court. A motion must be filed in court
with notice to the adverse party who shall be afforded
the opportunity to be heard.
Amendment to conform to or authorize
presentation of evidence
1997 Rules on Civil Procedure, Rule 10
Section 5. Amendment to conform to or
authorize presentation of evidence. - When issues
not raised in the pleadings are tried with the express or
implied consent of the parties, they shall be treated as if
they had been raised in the pleadings. The pleading may
be amended to conform to evidence, upon motion of any
party at any time, even after judgment and failure to
amend shall not affect the result of the trial on these
issues.
Philippine Ports Authority vs. William Gothong &
Aboitiz (Wg&A), Inc., (2008)
Facts: Petitioner William Gothong & Aboitiz, Inc.
(“WG&A”), is a duly organized domestic corporation
engaged in the shipping industry. Respondent Philippine
Ports Authority (“PPA”), upon the other hand, is a
government-owned and controlled company created and
existing by virtue of the provisions of P.D. No. 87 and
mandated under its charter to operate and administer
the country's sea port and port facilities.
After the expiration of the lease contract of
Veterans Shipping Corporation over the Marine Slip Way
in the North Harbor on December 31, 2000, petitioner
Page 63
Civil Procedure
ESGUERRA NOTES
WG&A requested respondent PPA for it to be allowed to
lease and operate the said facility. Thereafter, then
President Estrada issued a memorandum dated
December 18, 2000 addressed to the Secretary of the
Department of Transportation and Communication
(DOTC) and the General Manager of PPA, stating to the
effect that in its meeting held on December 13, 2000,
the Economic Coordinating Council (ECC) has approved
the request of petitioner WG&A to lease the Marine Slip
Way from January 1 to June 30, 2001 or until such time
that respondent PPA turns over its operations to the
winning bidder for the North Harbor Modernization
Project.
The said contract was eventually conformed to
and signed by the petitioner company, through its
President/Chief Executive Officer Endika Aboitiz, Jr.
Thereafter, in accordance with the stipulations made in
the lease agreement, PPA surrendered possession of the
Marine Slip Way in favor of the petitioner.
However, believing that the said lease already
expired on June 30, 2001, respondent PPA subsequently
sent a letter to petitioner WG&A dated November 12,
2001 directing the latter to vacate the contested
premises not later than November 30, 2001 and to
turnover the improvements made therein pursuant to
the terms and conditions agreed upon in the contract.
In response, petitioner WG&A wrote PPA on
November 27, 2001 urging the latter to reconsider its
decision to eject the former. Said request was denied by
the PPA via a letter dated November 29, 2001.
On November 28, 2001, petitioner WG&A
commenced an Injunction suit before the Regional Trial
Court of Manila. Petitioner claims that the PPA unjustly,
illegally and prematurely terminated the lease contract.
It likewise prayed for the issuance of a temporary
restraining order to arrest the evacuation. In its
complaint, petitioner also sought recovery of damages
for breach of contract and attorney's fees.
On December 11, 2001, petitioner WG&A
amended its complaint for the first time. The complaint
was still denominated as one for Injunction with prayer
for TRO. In the said amended pleading, the petitioner
incorporated statements to the effect that PPA is already
estopped from denying that the correct period of lease is
"until such time that the North Harbor Modernization
Project has been bidded out to and operations turned
over to the winning bidder. It likewise included, as its
third cause of action, the additional relief in its prayer,
that should the petitioner be forced to vacate the said
facility, it should be deemed as entitled to be refunded
of the value of the improvements it introduced in the
leased property.
Following the first amendment in the
petitioner's complaint, respondent PPA submitted its
answer on January 23, 2002. Meanwhile, the TRO
sought by the former was denied by the trial court by
way of an order dated January 16, 2002.
Petitioner later moved for the reconsideration
of the said Order on February 11, 2002. Shortly
thereafter, petitioner filed a Motion to Admit Attached
Second Amended Complaint. This time, however, the
complaint was already captioned as one for Injunction
with Prayer for Temporary Restraining Order and/or Writ
of Preliminary Injunction and damages and/or for
Reformation of Contract. Also, it included as its fourth
cause of action and additional relief in its prayer, the
reformation of the contract as it failed to express or
embody the true intent of the contracting parties.
The admission of the second amended
complaint met strong opposition from the respondent
PPA. It postulated that the reformation sought for by the
petitioner constituted substantial amendment, which if
granted, will substantially alter the latter's cause of
action and theory of the case.
On March 22, 2002, the respondent judge
issued an Order denying the Admission of the Second
Amended Complaint. Petitioner filed a motion for
reconsideration of the aforesaid order but the same was
again denied in an order dated April 26, 2002.
Held: The CA did not err in finding that the RTC
committed grave abuse of discretion in issuing the Order
dated March 22, 2002 denying the admission of
respondent's second amended complaint.
The RTC applied the old Section 3, Rule 10 of
the Rules of Court:
Section 3. Amendments by leave of
court. – after the case is set for hearing,
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 the
action or that the cause of action or defense is
substantially altered. 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.
Instead of the provisions of the 1997 Rules of
Civil Procedure, amending Section 3, Rule 10, to wit:
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.
The Court has emphasized the import of
Section 3, Rule 10 of the 1997 Rules of Civil Procedure
in Valenzuela v. Court of Appeals, thus:
Interestingly, Section 3, Rule 10 of the
1997 Rules of Civil Procedure amended the
former rule in such manner that the phrase "or
that the cause of action or defense is
substantially altered" was stricken-off and not
retained in the new rules. The clear import of
such amendment in Section 3, Rule 10 is
that under the new rules, "the
amendment may (now) substantially alter
the cause of action or defense." This should
only be true, however, when despite a
substantial change or alteration in the cause of
action or defense, the amendments sought to
Page 64
Civil Procedure
ESGUERRA NOTES
be made shall serve the higher interests of
substantial justice, and prevent delay and
equally promote the laudable objective of the
rules which is to secure a "just, speedy and
inexpensive disposition of every action and
proceeding."
The application of the old Rules by the RTC
almost five years after its amendment by the 1997 Rules
of Civil Procedure patently constitutes grave abuse of
discretion.
Panganiban vs. Sps. Roldan (2009)
Facts: On April 7, 1998, petitioner Agrifina Panganiban
filed a complaint against herein respondents, spouses
Romeo Roldan and Elizabeth Roldan, for recovery of
possession and damages in the Municipal Trial Court
(MTC), Third Judicial Region, Subic,
Zamabales. She alleged that she was the registered
owner of a parcel of land with an area of 271 square
meters, covered by Original Certificate of Title (OCT) No.
P-12388, located in Ilwas, Subic, Zambales; that
sometime in 1984, respondents entered the land and
built a small hut on a portion thereof without her
knowledge and consent; that respondents asked
permission if they could temporarily reside thereat, since
they came from Bicol and had no place to stay in
Zambales; that she took pity on them and agreed on the
condition that they would vacate upon demand; that in
1997, petitioner asked respondents to vacate the land,
as she would be putting up a fence thereon; that
respondents, who were occupying an area measuring
about 103 sq m, refused to vacate; that because of their
obstinate refusal to vacate, she suffered mental anxiety;
and that for being deprived of the use and enjoyment of
the land, respondents should be required to pay a rental
of P500.00 per month from December 1997 until they
vacate.
In their defense, respondents denied that they
entered into an agreement with petitioner allowing them
to stay on the land. They claimed that they had been
occupying the lot as caretakers of the heirs of
Concepcion dela Paz-Lesaca since 1973, as evidenced by
a Kasunduan. They alleged that the lot was part of the
land covered by Transfer Certificate of Title (TCT) No.
14884 issued in 1972, registered in the name of
Concepcion dela Paz-Lesaca; and that in December
1997, two (2) men who were barangay officials went to
the premises in order to survey the lot for purposes of
putting up a fence. Respondents thus objected to the
intrusion knowing that petitioner had no right or
personality to eject them from the land. Respondents
averred that petitioner was merely a neighbor and that
they were surprised to find out that she was able to
secure a new title over their portion of the land.
On March 23, 2001, the MTC rendered
judgment2 in favor of petitioner. The MTC did not admit
respondents’ evidence presented during the trial
consisting of: (1) the TCT of the subject property
registered under the name of Concepcion dela Paz-
Lesaca; and (2) the Kasunduan purportedly executed by
Concepcion dela Paz-Lesaca allowing Spouses Roldan to
stay on the land on the ground that these matters were
not raised in their Answer or in their Pre-trial Brief. The
MTC discerned a "variance of the allegation and proof,"
and thus considered the evidence as no proof at all. The
MTC stated that in such situation, the remedy was to
amend the Answer to conform to the evidence, and this,
respondents failed to do.
Held: Section 5, Rule 10 of the Rules of Court provides
that issues not raised by the pleadings may be tried by
express or implied consent of the parties, as if they had
been raised in the pleadings and the court can validly
resolve them. There is express consent to the evidence
on an issue not raised in the pleading when the adverse
party agrees to its presentation by the other party.
There is implied consent when the adverse party fails to
object thereto.
The general rule is that a judgment must
conform to the pleading and the theory of the action
under which the case is tried. But court may also rule
and render judgment on the basis of the evidence before
it, even though the relevant pleading has not been
previously amended, so long as no surprise or prejudice
to the adverse party is thereby caused and there is
express or implied consent to the presentation of
evidence. In fact, there is no need to formally amend
the pleadings to raise the issues because such issues are
considered as if they have been in the pleadings.
In the case at bench, since there was no
dispute that no objection was interposed by appellee to
the presentation of the evidence, the same should have
been admitted by the court a quo, consonant with
Section 5, Rule 10 and the rule on liberal construction
under Section 2, Rule 1 of the Rules of Court.
We have stressed that the rule on amendment
need not be applied rigidly, particularly where no
surprise or prejudice is caused the objecting party.
Where there is a variance in defendant’s pleadings and
the evidence adduced at the trial, the Court may treat
the pleading as if it had been amended to conform to
the evidence. In Royal Cargo Corporation v. DFS Sports
Unlimited, Inc., the Court stated that:
The failure of a party to amend a pleading to
conform to the evidence adduced during trial does not
preclude adjudication by the court on the basis of such
evidence which may embody new issues not raised in
the pleadings. x x x Although, the pleading may not
have been amended to conform to the evidence
submitted during trial, judgment may nonetheless be
rendered, not simply on the basis of the issues alleged
but also on the issues discussed and the assertions of
fact proved in the course of the trial. The court may
treat the pleading as if it had been amended to conform
to the evidence, although it had not been actually
amended. x x x Clearly, a court may rule and render
judgment on the basis of the evidence before it even
though the relevant pleading had not been previously
amended, so long as no surprise or prejudice is thereby
caused to the adverse party. Put a little differently, so
long as the basic requirements of fair play had been
met, as where the litigants were given full opportunity to
support their respective contentions and to object to or
refute each other’s evidence, the court may validly treat
the pleadings as if they had been amended to conform
to the evidence and proceed to adjudicate on the basis
of all the evidence before it.
Thus, the CA cannot be faulted for admitting
the evidence because it found them necessary to prove
respondents’ right of possession. A scrutiny of the
records further reveals that there is no prohibition on
the admission of the Kasunduan and the TCT. The
evidence when presented and offered were not actually
Page 65
 Civil Procedure
ESGUERRA NOTES
excluded by the lower court. In the pre-trial brief,
respondents (defendants therein) reserved the right to
present additional documentary exhibits in the course of
the trial, considering that the evidence was not yet
available at the time. For the proper disposition and
resolution of the issue as to who has the right of
possession of the subject land, the admission and
consideration of the documents were in order.
REMEDIES
Periods to answer
a. Amendments
Amendment as a matter of right—
The defendant shall answer the same within
fifteen (15) days after being served with a
copy thereof.
Amendment not a matter of right—
The defendant shall answer within ten (10)
days from notice of the Order admitting the
same.
 An answer earlier filed may serve as
the answer to the amended
complaint, if no new answer is filed.
Applicability
This Rule shall apply to the answer to
(1) an amended counterclaim,
(2) amended cross-claim,
(3) amended third (fourth, etc.)— party
complaint, and
(4) amended complaint-in-intervention.
(Sec. 3, Rule 11)
b. Supplemental complaint
This may be answered within ten (10) days from
notice of the order admitting the same, unless a
different period is fixed by the court.
 If no new or supplemental answer is
filed—
The answer to the complaint shall serve as
the answer to the supplemental
complaint. (Sec. 7, Rule 11)
c. Supplemental pleadings
A supplemental pleading setting forth transactions,
occurrences or events which have happened since the
date of the pleading sought to be supplemented may be
permitted
(1) upon motion of a party
(2) reasonable notice and
(3) upon such terms as are just
Period to answer
The adverse party may plead thereto within ten (10)
days from notice of the order admitting the
supplemental pleading. (Sec. 6, Rule 11)
i. Distinguished from amended pleadings
Shoemart, Inc. v. CA (1990)
Facts: Anson Emporium Corp. (Anson) leased from
Shoemart portion of a building for two years. The lease
stipulated that if after termination of the lease,
Shoemart permits Anson to remain, the lease shall be
understood to be on a month to month basis in the
absence of a contrary written agreement.
Anson remained in possession after the two-
year period but on an increased rental. Four years later,
Shoemart terminated the lease and gave notice to
Anson to vacate, which the latter refused. A complaint
for ejectment was filed against him with the MTC.
Shoemart asked for, and was granted, leave to file
supplemental complaint which alleged that the rental of
all tenants of the premises had been increased to
P45,142.00, which Anson refused to pay. Anson alleged
that Shoemart’s claim for increased rentals has been
barred. MTC ruled for Anson.
The RTC reversed the judgment and ordered
Anson to vacate the premises and to pay P34,622 and
P45,142 respectively for the two lease agreements, with
1% interest from October 1977. Shoemart filed a motion
for reconsideration of the award of damages, saying it is
less than what is really due. RTC granted this motion.
CA affirmed the ejectment of respondent but
reduced the damages awarded by stating that the 1%
interest will start to run from October 1987. Private
respondent sought the correction of the clerical error
regarding date of the effectivity of the payment for
damages. Said motion was granted
Petitioner's motion for reconsideration seeking
the reinstatement of the RTC’s decision was denied. CA
ruled that petitioner’s claim for damages is limited to the
P45,142 alleged in the supplemental complaint.
Held: The subsequently amended complaint in the case
at bar does not render the original complaint abandoned
or inexistent. Petitioner's recovery is not limited by the
amount of P45,142.00 prayed for in the supplemental
complaint as increased rental. This is not a case of a
complaint subsequently amended, the effect of which is
to render the original complaint abandoned or inexistent
and let the amendment take form as the sole substitute
upon which the case stands for trial.
A supplemental complaint or pleading supplies
deficiencies in aid of an original pleading, not to entirely
substitute the latter. A perusal of the original complaint
shows that it prayed, among others, that the private
respondent be ordered to pay petitioner P34,622.00 and
all other rentals and charges that may be due until
respondent vacates the premises. Petitioner, therefore,
did not foreclose its right to demand increased rentals
that may be recovered expressed in terms of the fair
rental value or the reasonable compensation for the use
and occupation of the real property. Unlike in an
amended complaint, the original complaint exists side by
side with the supplemental complaint.
The supplemental pleading merely served to
aver supervening facts which were then not ripe for
judicial relief when the original pleading was filed.
Supplemental pleadings are meant to supply deficiencies
Page 66
Civil Procedure
ESGUERRA NOTES
in aid of the original pleading and not to dispense with
the latter.
The failure of petitioner to amend its complaint
or file additional supplemental pleadings to allege
subsequent rental increases is of no moment.
In view of the failure of private respondent to
object to the presentation of evidence showing that
there were four (4) rental increases on the subject
premises although three (3) of said increases are not
alleged in the pleadings, judgment may be rendered
validly as regards the said increases or issues which
shall be considered as if they have been raised in the
pleadings. As found by the RTC, private respondent did
not controvert the evidence submitted by petitioner in
determining the fair rental value of the premises
including those imposed on all other tenants of
petitioner occupying the Makati Arcade. If, indeed, the
rental increases were unconscionable, respondent should
have at least presented evidence to substantiate its
claim. The burden of proof to show that the rental
demanded is unconscionable or exorbitant rests upon
private respondent as the lessee.
Private respondent failed to discharge its
burden when it omitted to present any evidence at all on
what it considers is the fair rental value other than what
were submitted by petitioner. As a matter of fact, all the
other tenants did not question the reasonableness of the
rental increases.
BILL OF PARTICULARS/INTERVENTION
BILL OF PARTICULARS
Definition
A bill of particulars is a detailed explanation respecting
any matter which is not averred with sufficient
definiteness/particularity in the complaint as to enable a
party to properly prepare his responsive pleading or to
prepare for trial (Rule 12, Sec. 1).
Office and Purpose:
 The proper preparation of an intelligent answer
requires information as to the precise nature,
character, scope and extent of the cause of action
in order that the pleader may be able to squarely
meet the issues raised, thereby circumscribing
them within determined confines and preventing
surprises during trial, and in order that he may set
forth his defenses which may not be so readily
availed of if the allegation controverted are vague,
indefinite, uncertain or are mere general
conclusions (Virata v. Sandiganbayan, 221 SCRA
52, 1993).
 The proper office of a bill of particulars is to inform
the opposite party and the court of the precise
nature and character of the cause of action (Tan v.
Sandiganbayan, G.R. No. 84195, 11 December
1989).
Virata v. Sandiganbayan (1993)
Facts: Cesar Virata was among the forty-four co-
defendants of Benjamin (Kokoy) Romualdez in a
complaint filed by the Sandiganbayan. The complaint
was amended thrice, the last amendment thereto is
denominated as Second Amended Complaint. The
plaintiff alleged four actionable wrongs against
petitioner: (1) his participation in the reduction of the
electric franchise tax and the tariff duty of fuel oil
imports by all public utilities (2) his participation in the
the approval of the '3-Year Program for the Extension of
MERALCO's Services to Areas’ (3) his participation in the
formation of Erectors Holdings, Inc. and (4) his acting as
a dummy of corporations controlled by Romualdez and
Marcos.
Petitioner moved to dismiss the case on
various grounds including the failure of the expanded
Second Amended Complaint to state a cause of action.
The motion was denied by Sandiganbayan. SC affirmed
the Sandiganbayan, and advised petitioner that if he
perceive some ambiguity or vagueness therein, the
remedy is not a motion to dismiss, but rather for a bill of
particulars.
Petitioner filed a motion for bill of particulars,
claiming that the general and sweeping allegations of
the Second Amended Complaint and the purported
illegal acts imputed to them as well as the alleged
causes of actions are vague and ambiguous. They are
not averred with sufficient definiteness or particularity
as would enable defendant Virata to properly prepare his
answer or responsive pleading. Sandiganbayan partially
granted the motion; of the four actionable wrongs, it
granted the motion with respect only to the fourth, since
the other three actionable wrongs are not squarely
under the Tantuico case.
Not satisfied with the partial grant of the
motion, petitioner filed the instant petition under Rule
65 of the Revised Rules of Court.
Held: The Motion for Bill of Particulars be granted
totally. It was grave error for the Sandiganbayan to
state that "[a]lleging the specific nature, character, time
and extent of the phrase 'active collaboration' would be
a mere surplus age and would not serve any useful
purpose" for precisely, without any amplification or
particularization thereof, the petitioner would be hard
put in meeting the charges squarely and in pleading
appropriate defenses. Nor can We accept the public
respondent's postulation that "any question as to the
validity or legality of the transactions involved in the
charges against defendant-movant is irrelevant and
immaterial in the resolution of the instant incident,
inasmuch as the same is a matter of defense which shall
have its proper place during the trial on the merits, and
on the determination of the liability of defendant-movant
after the trial proper." This is absurd, for how may the
petitioner set up a defense at the time of trial if in his
own answer he was not able to plead such a defense
precisely because of the vagueness or indefiniteness of
the allegations in the complaint? Unless he pleads the
defense in his answer, he may be deprived of the right
to present the same during the trial because of his
waiver thereof.
Since the issues have not as yet been joined
and no evidence has so far been adduced by the parties
the Sandiganbayan was in no position to conclude that
the matters which the. petitioner seeks are "within his
intimate or personal knowledge."
It is the office or function, as well as object or
purpose, of a bill of particulars to (1) amplify or limit a
pleading, (2) specify more minutely and particularly a
claim or defense set up and pleaded in general terms,
Page 67
Civil Procedure
ESGUERRA NOTES
(3) give information, not contained in the pleading, to
the opposite party and the court as to the precise
nature, character, scope, and extent of the cause of
action or defense relied on by the pleader, and (4)
apprise the opposite party of the case which he has to
meet, (a) to the end that the proof at the trial may be
limited to the matters specified, and (b) in order that
surprise at, and needless preparation for, the trial may
be avoided, and (c) that the opposite party may be
aided in framing his answering pleading and preparing
for trial. It has also been stated that it is the function or
purpose of a bill of particulars to (5) define, clarify,
particularize, and limit or circumscribe the issues in the
case, to (6) expedite the trial, and assist the court. A
general function or purpose of a bill of particulars is to
(7) prevent injustice or do justice in the case when that
cannot be accomplished without the aid of such a bill.
Moreover, the phrase "to enable him properly
to prepare his responsive pleading . . ." in Section 1 of
Rule 12 implies not just the opportunity to (8) properly
prepare a responsive pleading but also to (9) prepare an
intelligent answer. The proper preparation of an
intelligent answer requires information as to the precise
nature, character, scope and extent of the cause of
action in order that the pleader may be able to squarely
meet the issues raised, thereby circumscribing them
within determined confines and, preventing surprises
during the trial, and in order that he may set forth his
defenses which may not be so readily availed of if the
allegations controverted are vague, indefinite, uncertain
or are mere general conclusions.
 What is beyond its scope
o The complaint for which a bill for a more
definite statement is sought need only inform the
defendant of the essential (or ultimate) facts to enable
him, the defendant, to prepare his answer… Any more
‘particulars’ in that event would be evidentiary in
character, which must be adduced at the trial proper
(Tan v. Sandiganbayan, supra.).
o Notes:
 If the purpose is for preparation for trial, the
appropriate remedy is to avail discovery
procedures or pre-trial.
 It is erroneous to require disclosure of
evidence relied upon by the adverse party in a
motion for bill of particulars.
 A motion for bill of particulars to require a
pleader to set forth matters showing
jurisdiction of a court to render its judgment is
not proper.
Tan v. Sandiganbayan (1989)
Facts:
The PCGG filed a complaint against the twenty-two
petitioners, together with the late Ferdinand Marcos,
Mrs. Imelda Marcos, Don Ferry, and Federico Moreno,
praying, among others, for the return and reconveyance
of all funds and other property impressed with
constructive trust in favor of PCGG and the Filipino
people, as well as funds and other property acquired by
Defendants by abuse of right and power and through
unjust enrichment.
Subsequently, the PCGG filed an Expanded
Complaint. In essence, these are the allegations of
PCGG:
1. The petitioner Lucio Tan was Mr. Marcos' business
partner;
2. Through undue influence, coercion, and abuse of
light they acquired shareholdings from various
firms, and built a business empire therefrom;
3. The remaining petitioners acted as their
"dummies, nominees, or agents";
4. Together with the Marcoses, they maneuvered
their way into these firms and acquired control
thereof;
5. The same were accomplished through
unacceptable machinations such as insider trading
and similar acts, in violation of existing laws;
6. They also unjustly enriched the petitioners at the
expense of the Republic of the Philippines and the
Filipino people.
Notwithstanding this, the twenty-two
petitioners moved for a bill of particulars. The
respondent Court denied the petitioners' motion, and
denied reconsideration. The petitioners submit that the
PCGG's averments are made up of bare generalizations,
presumptuous conclusions of fact and law, and plain
speculations, for which a motion for a more definite
statement or for a bill of particulars allegedly lies.
The Sandiganbayan's decided that Paragraphs
14 to 15, inclusive of the Expanded Complaint, had
already supplied or provided the specifications and
particulars theretofore lacking in the original Complaint.
Held:
The Motion for Bill of Particulars should NOT be
granted. The foregoing allegations of the PCGG are
actionable wrongs that are proper for a complaint. The
PCGG's Complaint/Expanded Complaint is garbled in
many respects, but this is no excuse for sloth on the
part of the petitioners. The Complaint/Expanded
Complaint is complete enough to perish fears of the
PCGG pulling a surprise subsequently.
It is not the office of a bill of particulars to
supply material allegations necessary to the validity of a
pleading, or to change a cause of action or defense
stated in the pleading, or to state a cause of action or
defense other than the one stated. Also it is not the
office or function, or a proper object, of a bill of
particulars to set forth the pleader's theory of his cause
of action or a rule of evidence on which he intends to
rely, or to furnish evidential information whether such
information consists of evidence which the pleader
proposes to introduce or of facts which constitute a
defense or offset for the other party or which will enable
the opposite party to establish an affirmative defense
not yet pleaded. The PCGG's complaint (as amended)
does set out allegations, however confusingly put in
print, which, interrelated to one another, are enough to
support a formal civil charge. If the petitioners are not
aware of the PCGG's asseverations, the remedy is to
deny the same in their answer for lack of "knowledge or
information sufficient to form a belief as to the truth of
the said averments. They cannot, however, demand for
any more particulars without actually making the PCGG
expose its evidence unnecessarily before the trial stage.
Page 68
Civil Procedure
ESGUERRA NOTES
When to file
The Motion for Bill of Particulars should be filed
before responding to a pleading. If the pleading is a
reply, the motion must be filed within ten (10) days
from service thereof.
o If directed to a complaint, the motion shall be filed
fifteen (15) days after service of summons.
o If directed to a counterclaim, the motion shall be
filed ten (10) days from service of the
counterclaim.
o If directed to a reply, the motion shall be filed ten
(10) days from the service of said reply.
Requisites
The Motion for Bill of Particulars shall point out
(a) defects complained of;
(b) paragraphs wherein they are contained; and
(c) the details desired.
Action of the Court (Sec. 2, Rule 12)
Upon receipt of the motion, which the clerk must
immediately bring to the court’s attention, the court
may:
(a) deny the motion outright;
(b) grant the motion outright; or
(c) hold a hearing on the motion.
Compliance
o Compliance with the order granting the motion
— If the motion is granted, either in whole or in part,
the compliance therewith must be effected within ten
(10) days from notice of the order, unless a different
period is fixed by the court. (Rule 12, Section 3).
o Effect of non-compliance (Rule 12, Section 4)
— If the order is not obeyed, or in case of insufficient
compliance therewith, the court may:
(a) order the striking out of the pleading or the
portions thereof to which the order was
directed; or
(b) make such other order as it deems just
Stay of period to file responsive pleading
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 (Rule 12, Sec. 5).
Bill a part of pleading
A bill of particulars becomes part of the pleading for
which it is intended (Rule 12, Sec. 6).
INTERVENTION
Definition
 Intervention is a legal proceeding by which a
person who is not a party to the action is
permitted by the court to become a party by
intervening in a pending action after meeting
the conditions and requirements set by the
Rules of Court (First Philippine Holdings
Corporation v. Sandiganbayan, 253 SCRA 30;
Rule 19).
 It is a remedy by which a third party, not
originally impleaded in the proceedings,
becomes a litigant therein to enable him to
protect or preserve a right or interest which
may be affected by such proceeding (Office of
the Ombudsman v. Samaniego, G.R. No.
175573, 11 September 2008).
 It is never an independent proceeding, but is
ancillary and supplemental to an existing
litigation. Its purpose is to enable a stranger
to an action to become a party to protect his
interest (Santiago Land Development
Corporation v. Court of Appeals, 267 SCRA 79;
See Saw vs. CA, 195 SCRA 740 and
Metropolitan Bank & Trust Co. v. Presiding
Judge, 182 SCRA 820, 1990).
Saw v. CA (1991)
Facts: Equitable Banking Corporation (“Equitable”) filed
a collection suit with preliminary attachment against
Freeman, Inc. (“Freeman”) and Saw Chiao Lian, its
President and General Manager. The petitioners moved
to intervene, alleging that (1) the loan transactions
between Chiao Lian and Equitable were not approved by
the stockholders representing at least two thirds (2/3) of
corporate capital; (2) Chiao Lian had no authority to
contract such loans; and (3) there was collusion
between the officials of Freeman and Equitable in
securing the loans. The motion to intervene was denied,
and the petitioners appealed to the Court of Appeals.
Meanwhile, Equitable and Chiao Lian entered
into a compromise agreement which was approved by
the lower court. However, it was not complied with, so
Equitable secured a writ of execution, and two lots
owned by Freeman, Inc. were levied upon and sold at
public auction.
The CA sustained the denial of the motion for
intervention, holding that the compromise agreement
will not necessarily prejudice petitioners whose rights to
corporate assets are at most inchoate, prior to the
dissolution of Freeman, and that intervention under Sec.
2, Rule 12 of the Revised Rules of Court is proper only
when one's right is actual, material, direct and
immediate and not simply contingent or expectant.
Held: The petitioners may NOT be allowed to intervene
in the action. To allow intervention: (a) it must be
shown that the movant has legal interest in the matter
in litigation, or otherwise qualified; and (b) consideration
must be given as to whether the adjudication of the
rights of the original parties may be delayed or
prejudiced, or whether the intervenor's rights may be
protected in a separate proceeding or not. Both
Page 69
Civil Procedure
ESGUERRA NOTES
requirements must concur as the first is not more
important than the second.
The interest which entitles a person to
intervene in a suit between other parties must be in the
matter in litigation and of such direct and immediate
character that the intervenor will either gain or lose by
the direct legal operation and effect of the judgment.
Here, the interest, if it exists at all, of petitioners-
movants is indirect, contingent, remote, conjectural,
consequential and collateral. While a share of stock
represents a proportionate or aliquot interest in the
property of the corporation, it does not vest the owner
thereof with any legal right or title to any of the
property, his interest in the corporate property being
equitable or beneficial in nature. Shareholders are in no
legal sense the owners of corporate property, which is
owned by the corporation as a distinct legal person.
Intervention is not an independent proceeding,
but an ancillary and supplemental one which, in the
nature of things, unless otherwise provided for by the
statute or Rules of Court, must be in subordination to
the main proceeding. It may be laid down as a general
rule that an intervenor is limited to the field of litigation
open to the original parties. In the case at bar, there is
no more principal action to be resolved as a writ of
execution had already been issued by the lower court
and the claim of Equitable had already been satisfied.
The decision of the lower court had already become final
and in fact had already been enforced. There is
therefore no more principal proceeding in which the
petitioners may intervene.
Metropolitan Bank & Trust Co. v. Presiding Judge
(1990)
Facts: Metrobank loaned Good Earth Emporium (GEE)
P4.9M, and the latter mortgaged its air conditioning
units as security. Said units were purchased from Raycor
Air Control systems. However, Raycor was not
completely paid by GEE on the installation costs to the
extent of P150,000.
When GEE was foreclosed by BPI Consortium,
Metrobank filed a complaint for replevin to recover the
units. The defendants consortium filed their answer.
Subsequently, Raycor filed a motion for leave to
intervene, which was granted.
The complaint was later dismissed with
prejudice when the parties agreed to a compromise
settlement, without informing the intervenor Raycor.
Held: The intervenor in a pending case is entitled to be
heard like any other party.There is here no final
dismissal of the main case. The aforementioned order of
the lower court has the effect not only of allowing the
intervention suit to proceed but also of vacating its
previous order of dismissal. The reinstatement of the
case in order to try and determine the claims and rights
of the intervenor is proper. The joint motion of therein
plaintiff and the original defendants to dismiss the case,
without notice to and consent of the intervenor, has the
effect of putting to rest only the respective claims of the
said original parties inter se but the same cannot in any
way affect the claim of private respondent which was
allowed by the court to intervene without opposition
from the original parties.
After the intervenor has appeared in the
action, the plaintiff has no absolute right to put the
intervenor out of court by the dismissal of the action.
The parties to the original suit have no power to waive
or otherwise annul the substantial rights of the
intervenor. When an intervening petition has been filed,
a plaintiff may not dismiss the action in any respect to
the prejudice of the intervenor.
It has even been held that the simple fact that
the trial court properly dismissed plaintiff’s action does
not require dismissal of the action of the intervenor. An
intervenor has the right to claim the benefit of the
original suit and to prosecute it to judgment. The right
cannot be defeated by dismissal of the suit by the
plaintiff after the filing of the petition and notice thereof
to the other parties. A person who has an interest in the
subject matter of the action has the right, on his own
motion, to intervene and become a party to the suit, and
even after the complaint has been dismissed, may
proceed to have any actual controversy established by
the pleadings determined in such action. The trial court's
dismissal of plaintiff’s action does not require dismissal
of the action of the intervenor.
The intervenor in a pending case is entitled to
be heard like any other party. A claim-in-intervention
that seeks affirmative relief prevents a plaintiff from
taking a voluntary dismissal of the main action. Where
a complaint in intervention was filed before plaintiff's
action had been expressly dismissed, the intervenor's
complaint was not subject to dismissal on the ground
that no action was pending, since dismissal of plaintiffs
action did not affect the rights of the intervenor or affect
the dismissal of intervenor's complaint. An intervenor's
petition showing it to be entitled to affirmative relief will
be preserved and heard regardless of the disposition of
the principal action.
 Intervention cannot alter the nature of the action
and the issues already joined (Castro v. David, 100
Phil. 454).
 It is neither compulsory nor mandatory but only
optional and permissive (Mabayo Farms, Inc. v.
Court of Appeals, G.R. No. 140058, 1 August 2002).
Legal interest
The legal interest must be one that is actual and
material, direct and of an immediate character, not
merely contingent or expectant so that the intervenor
will either gain or lose by the direct legal operation of
the judgment (Firestone Ceramics v. Court of Appeals,
313 SCRA 522; Office of the Ombudsman v,
Samaniego, supra.).
Page 70
Civil Procedure
ESGUERRA NOTES
Requisites; Who may intervene (Rule 19, Sec. 1)
(1) There must be a motion for intervention filed before
rendition of judgment by the trial court;
(2) The movant must be a person who has a legal
interest
(a) in the matter in litigation,
(b) in the success of either of the parties, or an
interest against both, or
(c) 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.
(3) The intervention must not unduly delay or prejudice
the adjudication of the rights of the original parties
and that the intervenor’s rights may not be fully
protected in a separate proceeding (Rule 19, Sec. 1).
Time to intervene
The motion to intervene may be filed at any time before
rendition of judgment by the trial court (Rule 19, Sec.
2).
 A copy of the pleading-in-intervention shall be
attached to the motion and served on the
original parties
Strategic Alliance Development Corporation v.
Radstock Securities Limited (2009)
Facts: Construction Development Corporation of the
Philippines (CDCP) was granted a franchise to construct,
operate and maintain toll facilities in the North and
South Luzon Tollways and Metro Manila Expressway.
CDCP Mining Corporation (CDCP Mining), an affiliate of
CDCP, obtained loans from Marubeni Corporation of
Japan (Marubeni). CDCP Mining secured the Marubeni
loans when CDCP and CDCP Mining were still privately
owned and managed.
In 1983, CDCP’s name was changed to
Philippine National Construction Corporation (PNCC) in
order to reflect that the Government already owned
90.3% of PNCC and only 9.70% is under private
ownership. Meanwhile, the Marubeni loans to CDCP
Mining remained unpaid. On 20 October 2000 and 22
November 2000, the PNCC Board of Directors (PNCC
Board) passed Board Resolutions admitting PNCC’s
liability to Marubeni. Previously, for two decades the
PNCC Board consistently refused to admit any liability
for the Marubeni loans.
In January 2001, Marubeni assigned its entire
credit to Radstock Securities Limited (Radstock), a
foreign corporation. Radstock immediately sent a notice
and demand letter to PNCC. On 15 January 2001,
Radstock filed an action for collection and damages
against PNCC before the Regional Trial Court of
Mandaluyong City, Branch 213 (trial court). In its order
of 23 January 2001, the trial court issued a writ of
preliminary attachment against PNCC. The trial court
ordered PNCCs bank accounts garnished and several of
its real properties attached. On 14 February 2001, PNCC
moved to set aside the 23 January 2001 Order and to
discharge the writ of attachment. PNCC also filed a
motion to dismiss the case. The trial court denied both
motions. PNCC filed motions for reconsideration, which
the trial court also denied. PNCC filed a petition for
certiorari before the Court of Appeals, docketed as CA-
G.R. SP No. 66654, assailing the denial of the motion to
dismiss. On 30 August 2002, the Court of Appeals
denied PNCC’s petition. PNCC filed a motion for
reconsideration, which the Court of Appeals also denied
in its 22 January 2003 Resolution. PNCC filed a petition
for review before the Supreme Court, docketed as G.R.
No. 156887.
The trial court continued to hear the main
case. On 10 December 2002, the trial court ruled in
favor of Radstock. PNCC thereafter appealed the trial
courts’ decision to the Court of Appeals, docketed as CA-
G.R. CV No. 87971.. In a Resolution dated 4 December
2006 in G.R. No. 156887, the Supreme Court referred
the Compromise Agreement to the Commission on Audit
(COA) for comment. The COA recommended approval of
the Compromise Agreement. Thus, the Supreme Court
noted the Compromise Agreement and referred it to the
Court of Appeals in CA-G.R. CV No. 87971. In its 25
January 2007 Decision, the Court of Appeals approved
the Compromise Agreement.
PNCC and Radstock entered into a Compromise
Agreement. Under this agreement, PNCC shall pay
Radstock the reduced amount of P6,185,000,000.00 in
full settlement of PNCC’s guarantee of CDCP Mining’s
debt. In its 25 January 2007 Decision, the Court of
Appeals approved the Compromise Agreement.
Strategic Alliance Development Corporation
(STRADEC) moved for reconsideration. STRADEC alleged
that it has a claim against PNCC as a bidder of the
National Government’s shares, receivables, securities
and interests in PNCC. The matter is subject of a
complaint filed by STRADEC against PNCC and the
Privatization and Management Office (PMO) for the
issuance of a Notice of Award of Sale to Dong-A
Consortium of which STRADEC is a partner. The case,
docketed as Civil Case No. 05-882, is pending before the
Regional Trial Court of Makati, Branch 146 (RTC Branch
146).
The Court of Appeals treated STRADEC’s
motion for reconsideration as a motion for intervention
and denied it on the ground that the motion was filed
only after the Court of Appeals and the trial court had
promulgated their respective decisions.
Rodolfo Cuenca (Cuenca), a stockholder and
former PNCC President and Board Chairman, filed an
intervention before the Court of Appeals. Cuenca alleged
that PNCC had no obligation to pay Radstock. The Court
of Appeals also denied Cuenca’s motion for intervention.
Cuenca did not appeal the denial of his motion.
Meanwhile, Sison, also a stockholder and
former PNCC President and Board Chairman, filed a
Petition for Annulment of Judgment Approving
Compromise Agreement before the Court of Appeals.
The case was docketed as CA-G.R. SP No. 97982.
Asiavest, a judgment creditor of PNCC, also
filed an Urgent Motion for Leave to Intervene and to File
the Attached Opposition and Motion-in-Intervention
before the Court of Appeals in CA-G.R. SP No. 97982.
The Court of Appeals denied Asiavest’s urgent motion.
Page 71
Civil Procedure
ESGUERRA NOTES
Held: The Court of Appeals improperly denied Asiavest’s
motions for intervention. The rule that the motion for
intervention must be filed before the rendition of
judgment by the trial court is not absolute. The rule on
intervention, like all other rules of procedure, is intended
to make the powers of the Court completely available for
justice. It is aimed to facilitate a comprehensive
adjudication of rival claims, overriding technicalities on
the timeliness of the filing of the claims.
Concededly, STRADEC has no legal interest in
the subject matter of the Compromise Agreement.
STRADECs interest is dependent on the outcome of Civil
Case No. 05-882. Unless STRADEC can show that RTC
Branch 146 had already decided in its favor, its legal
interest is simply contingent and expectant.
However, Asiavest has a direct and material
interest in the approval or disapproval of the
Compromise Agreement. Asiavest is a judgment creditor
of PNCC and a court has already issued a writ of
execution in its favor. Asiavest’s interest is actual and
material, direct and immediate characterized by either
gain or loss from the judgment that this Court may
render. Considering that the Compromise Agreement
involves the disposition of all or substantially all of the
assets of PNCC, Asiavest, as PNCCs judgment creditor,
will be greatly prejudiced if the Compromise Agreement
is eventually upheld.
Pleadings-in-intervention
The intervenor shall file a complaint-in-intervention if
he asserts a claim against either or all of the original
parties, or an answer-in-intervention if he unites with
the defending party in resisting a claim against the latter
(Rule 19, Sec. 3).
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 (Rule 19, Sec. 4).
Rule 14
Summons
Definition and purpose
Summons is the writ by which the defendant is notified
of the action brought against him.
 The issuance of summons is mandatory on the
part of the court.
 In an action in personam, the purpose of
summons is not only to notify the defendant of
the action, but also to acquire jurisdiction over
his person.
 Service of summons is required even if the
defendant is aware of the filing of the action
against him.
 In an action in rem or quasi in rem, the
purpose of summons is mainly to satisfy the
constitutional requirements of due process.
Duty to issue
The clerk of court shall issue the corresponding
summons to the defendants
(1) upon the filing of the complaint and
(2) payment of the requisite legal fees. (Sec. 1,
Rule 14)
Issuance of alias summons—
If a summons is returned without being served on any
or all of the defendants, the server:
(1) shall also serve a copy of the return on the
plaintiff’s counsel,
(2) stating the reasons for the failure of service,
(3) within five (5) days from such failure.
The clerk may issue an alias summons
(1) on demand of the plaintiff,
(2) if the summons has been lost, or
(3) if the summons has been returned without
being served (Sec. 5, Rule 14)
Form
Content
The summons shall be
(1) directed to the defendant,
(2) signed by the clerk of court, and
(3) under seal.
The summons shall 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;
and
(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. (3a)
If with leave of court
It shall be made
(1) by motion,
Page 72
Civil Procedure
ESGUERRA NOTES
(2) in writing,
(3) supported by affidavit of the plaintiff
or some person on his behalf, and
(4) setting forth the grounds for the
application. (Sec. 17, Rule 14)
Who serves
The summons may be served by
(1) the sheriff,
(2) his deputy,
(3) other proper court officer, or
(4) any suitable person authorized by the court
issuing the summons, for justifiable reasons.
(Sec. 3, Rule 14)
On whom
In general
The clerk of court shall issue the corresponding
summons to the defendants. (Sec. 1, Rule 14)
Service in person on defendant—
Whenever practicable, the summons shall be
served
(1) by handing a copy thereof to the
defendant in person, or
(2) by tendering it to him, if he refuses
to receive and sign for it. (Sec. 6,
Rule 14)
Entity without juridical personality
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
(1) upon all the defendants by serving
upon any one of them, or
(2) upon the person in charge of the
office or place of business maintained
in such name.
BUT such service shall not bind individually any
person whose connection with the entity has,
upon due notice, been severed before the
action was brought. (Sec. 8, Rule 14)
Associations
Domestic
Service upon domestic private
juridical entity—
Service may be made on
(1) the president,
(2) managing partner,
(3) general manager,
(4) corporate secretary,
(5) treasurer, or
(6) in-house counsel. (Sec. 11,
Rule 14)
List exclusive
E.B. VILLAROSA & PARTNER CO., LTD. V. BENITO
(1999)
FACTS: Petitioner E.B. Villarosa, a limited
partnership, and private respondent Benita executed a
deed of sale with development agreement wherein
Villarosa agreed to develop certain parcels of land
belonging to Benito into a housing subdivision for the
construction of low cost housing units. They further
agreed that in case of litigation arising from any dispute,
the venue shall be in the proper courts of Makati.
The private respondent subsequently filed a
Complaint for Breach of Contract and Damages against
the petitioner before the Trial Court of Makati for lack of
developments within the aforesaid properties. The
Service of Summons as well as the complaint was
served upon the branch manager in Cagayan de Oro.
Plaintiff filed a Special Motion to Dismiss alleging that
the summons was improperly served and for lack of
jurisdiction over the person of the defendant.
Respondent says that the Service was improperly served
since it was given to an employee in its branch office
and not to one of the persons enunciated in Rule 14
section 11 of the ROC.
The trial court ruled in favor of respondent
hence this petition.
ISSUE: Whether the service of summons on the branch
manager was proper
NO. Section 11, Rule 14 allows service to the
general manager, not the branch manager. The maxim
expression unios est exclusion alterius applies in this
case. The enumeration of persons whom summons may
be served is restricted, limited and exclusive. The new
rule specifically changed the proper recipient of a service
from a mere manager to a general manager in order to
prevent ambiguous and illogical interpretations in the
future. The court therefore acquires no jurisdiction over
the person of the defendant.
In the case at bar, since the service was given
to a mere branch manager in one of petitioner’s
branches instead of the general manager in its main
office in Davao, such service is deemed insufficient. The
courts therefore did not acquire jurisdiction over the
person of the petitioner.
Foreign Juridical Entity (Rule 14, Sec. 12, as
amended by AM. No. 11-3-6-SC)
 When the defendant is a foreign private juridical
entity which has transacted business in the
Philippines, service may be made on its resident
agent designated in accordance with law for that
purpose, or, if there be no such agent, on the
government official designated by law to that
effect, or on any of its officers or agents within
the Philippines.
 If the foreign private juridical entity is not
registered in the Philippines or has no resident
agent, service may, with leave of court, be
effected out of the Philippines through any of the
following means:
a) By personal service coursed through the
appropriate court in the foreign country with the
assistance of the Department of Foreign Affairs;
b) By publication once in a newspaper of
general circulation in the country where the
defendant may be found and by serving a copy
of the summons and the court order by-
registered mail at the last known address of the
defendant;
Page 73
Civil Procedure
ESGUERRA NOTES
c) By facsimile or any recognized electronic means
that could generate proof of service; or
d) By such other means as the court may in its
discretion direct.
Public corporation
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
(1) its executive head, or
(2) on such other officer or officers as the law or
the court may direct. (Sec. 13, Rule 14)
Prisoners
1997 Rules on Civil Procedure, 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.
Minors
When the defendant is a minor, service shall be made
(1) upon him personally and
(2) 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, or
(3) on his father or mother, In the case of a minor,
service may also be made. (Sec. 10, Rule 14)
Insane, incompetents
When the defendant is insane or otherwise an
incompetent, service shall be made
(1) upon him personally and
(2) 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. (Sec. 10,
Rule 14)
Unknown defendant or whereabouts unknown
Where the defendant is
(1) designated as an unknown owner, or the like, or
(2) whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry,
Service may, by leave of court, be effected upon him
by
(1) publication in a newspaper of general circulation
and
(2) in such places and for such time as the court
may order. (Sec. 14, Rule 14)
*Whether in rem, quasi in rem or personal
SANTOS v. PNOC (2008)
FACTS: PNOC Exploration Corp. (respondent)
filed a complaint for a sum of money against Pedro T.
Santos, Jr. (petitioner), seeking to collect the
P698,502.10 unpaid balance of the car loan advanced to
Santos when he was still member of the board of
directors.
Personal service of summons to Santos failed
because he could not be located in his last known address
despite earnest efforts to do so. On PNOC’s motion, the
trial court allowed service of summons by publication.
PNOC then caused the publication of the summons in
Remate, a newspaper of general circulation in the
Philippines. Thereafter, PNOC submitted the affidavit of
publication of the advertising manager of Remate and an
affidavit of service of the PNOC’s employee to the effect
that he sent a copy of the summons by registered mail to
Santos’ last known address.
When Santos failed to file his answer, PNOC
moved the case be set for the reception of its evidence ex
parte. The trial court granted the motion. An omnibus
motion for reconsideration was then sought by Santos,
alleging that the affidavit of service submitted by PNOC
failed to comply with Sec. 19, Rule 14, as it was not
executed by the Clerk of Court. He also claimed denial of
due process for he was not notified of the trial court’s
order. PNOC opposed the motion and insisted that it
complied with the rules on service by publication. The
trial court denied Santos’ motion.
ISSUE: Whether there is improper service of summons
because summons by publication only applies to actions
in rem, and not in personam
NO. Since petitioner could not be personally
served with summons despite diligent efforts to locate his
whereabouts, respondent sought and was granted leave
of court to effect service of summons upon him by
publication in a newspaper of general circulation. Thus,
petitioner was properly served with summons by
publication.
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 applies
"[i]n any action where the defendant is designated as an
unknown owner, or the like, or whenever his whereabouts
are unknown and cannot be ascertained by diligent
inquiry." Thus, it now applies to any action, whether in
personam, in rem or quasi in rem.
Service of summons by publication is proved by
the affidavit of the printer, his foreman or principal clerk,
or of the editor, business or advertising manager of the
newspaper which published the summons. The service of
summons by publication is complemented by service of
summons by registered mail to the defendant's last
known address. This complementary service is evidenced
by an affidavit "showing the deposit of a copy of the
summons and order for publication in the post office,
postage prepaid, directed to the defendant by registered
mail to his last known address." The rules, however, do
not require that the affidavit of complementary service be
executed by the clerk of court. While the trial court
ordinarily does the mailing of copies of its orders and
processes, the duty to make the complementary service
by registered mail is imposed on the party who resorts to
service by publication.
The trial court acquired jurisdiction over the
person of petitioner by his own voluntary appearance in
the action against him. This was equivalent to service of
summons and vested the trial court with jurisdiction over
the person of petitioner.
Page 74
Civil Procedure
ESGUERRA NOTES
Residents temporarily out
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 by
extraterritorial service. (Sec. 16, Rule 14)
Extraterritorial service: When the defendant does
not reside and is not found in the Philippines, and
the action affects the personal status of the plaintiff
or relates to, or the subject of which is, property
within the Philippines, in which the defendant has
or claims a lien or interest, actual or contingent, or
in which the relief demanded consists, wholly or in
part, in excluding the defendant from any interest
therein, or the property of the defendant has been
attached within the Philippines, service may, by
leave of court, be effected out of the Philippines by
personal service; 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. (Sec. 15, Rule 14).
PALMA VS. GALVEZ (2010)
Facts: On July 28, 2003, Palma filed with the RTC an
action for damages against the Philippine Heart Center,
Dr. Giron, Dr. Cruz, alleging that the defendants
committed professional fault, negligence and omission for
having removed her right ovary against her will, and
losing the same and the tissues extracted from her during
her surgery; and that although the specimens were
subsequently found, Palma was doubtful and uncertain
that the same was hers as the label therein pertained
that of somebody else. Later, Palma filed a Motion for
Leave to Admit Amended Complaint, praying for inclusion
of some nurses, one of which is respondent Agudo.
The RTC’s process server submitted his return
of summons stating that the alias summons, together
with a copy of the amended complaint and its annexes,
were served upon Agudo thru her husband Alfredo, who
received and signed the same since Agudo was out of the
country.
Agudo’s counsel filed a Notice of Appearance
and Motion for Extension of Time to File Answer stating
that he was just engaged by Alfredo Agudo, as
respondent Agudo was out of the country and the Answer
was already due. Two weeks later, counsel again filed
a Motion for Another Extension of Time to File Answer,
stating that the draft answer was finished but would be
sent to Agudo for clarification/verification before the Phil.
Consulate in Ireland. Two weeks later, Agudo filed a
Motion to Dismiss on the ground that the RTC had not
acquired jurisdiction over her as she was not property
served with summons since she was temporarily out of
the country. Palma filed her Opposition to the MTD,
arguing that a substituted service of summons on Agudo’s
husband was valid and binding on her, that the service of
summons under Sec. 16, Rule 14 was not exclusive and
maybe effected by other modes of service.
RTC granted Agudo’s MTD. RTC found that while
summons was served at Agudo’s house and received by
her husband, such service did not qualify as a valid
service of summons on her as she was out of the country
at the time it was served. Palma thus filed this petition
for certiorari under Rule 65.Issues:1.
Issue: Whether or not there was a valid service
of summons on Agudo.
Held: YES. In civil cases, the trial court acquires
jurisdiction over the person of the defendant either by
the service of summons or by the latter’s voluntary
appearance and submission to the authority of the
former. Agudo was a Filipino resident temporarily out of
the country at the time of the service of summons, thus
service of summons on her is governed by Sec. 16, Rule
14 of the ROC:
“Sec. 16. When an action is
commenced against a defendant who
ordinarily resides within the Philippines, but
who is temporarily out of it, service may, by
leave of court, be also effected out of the
Philippines, as under the preceding section.”
“Sec. 15. When the defendant does not reside
and is not found in the Philippines x x x
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 x x x”
The use of the words “may” and
“also” in Sec. 16 means that it is not
mandatory. Other methods of service of
summons allowed may also be availed of.
Thus, if a resident defendant is temporarily
out of the country, any of the following modes
of service may be resorted to: (1) submitted
service set forth in Sec. 7, Rule 14; (2)
personal service outside the country with
leave of court, (3) service of publication, with
leave of court; (4) in any other manner the
court may deem sufficient. Sec. 7 states that:
“Sec. 7. 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 defendant’s
residence with some person of suitable age
and discretion then residing therein, or (b) by
leaving the copies at defendant’s office or
regular place of business with some
competent person in charge thereof.”
In this case, the service of summons was made
at her residence with her husband, Alfredo Agudo,
acknowledging receipt thereof. Alfredo was presumably
of suitable age and discretion, who was residing in that
place, and therefore, was competent to receive the
summons on Agudo’s behalf.
Statements were made that establish the fact
that Agudo had knowledge of the case filed against her,
and that her husband had told her about the case as
Alfredo even engaged the services of her counsel: (1) In
the notice of appearance and Motion for Extension of
Time to File Answer, Agudo’s counsel confirmed that
Agudo was out of the country and his service was
engaged by the husband. In the other motion for
extension of time, Agudo’s counsel stated that a draft of
the answer had already been prepared, to be submitted
to Agudo in Ireland. RTC acquired jurisdiction over the
Page 75
Civil Procedure
ESGUERRA NOTES
person of Agudo when her counsel entered his
appearance on Agudo’s behalf, without qualification and
without questioning the propriety of the service of
summons, and even filed 2 Motions for Extension of
Time to File Answer. In effect, Agudo, through counsel,
invoked RTC’s jurisdiction over her person. This is
considered voluntary submission to the jurisdiction of
the court. Petition is granted. Agudo is directed to file
her Answer.
Non-resident
*in rem, quasi in rem
When the defendant
(1) does not reside and is not found in the
Philippines, and
(2) the action affects
a. the personal status of the plaintiff or
b. 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
c. in which the relief demanded consists,
wholly or in part, in excluding the
defendant from any interest therein, or
d. the property of the defendant has been
attached within the Philippines,
Service may, by leave of court, be effected out of the
Philippines
(1) by personal service as under section 6; or
(2) 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,
(3) 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. (Sec. 15, Rule 14)
Modes of service
Personal
Whenever practicable, the summons shall be
served
(1) by handing a copy thereof to the
defendant in person, or
(2) by tendering it to him, if he refuses
to receive and sign for it. (Sec. 6,
Rule 14)
Substituted
If, for justifiable causes, the defendant cannot
be served within a reasonable time as provided
in the preceding section, service may be
effected
(a) by leaving copies of the summons at
the defendant’s residence with some
person of suitable age and discretion
then residing therein, or
(b) by leaving the copies at defendant’s
office or regular place of business
with some competent person in
charge thereof. (Sec. 7, Rule 14)
Impossibility of prompt service must appear in the
return of the service
SPOUSES GALURA VS. MATH-
AGRO CORPORATION (2009)
Facts:Spouses Galura purchased broiler starters and finishers
from Math-Agro Corporation (MAC). The Spouses Galura paid
MAC P72,500. Despite several demands, they failed to pay the
P353,500 unpaid balance. MAC engaged the services of a
certain Atty. Pasamba for the purpose of collecting the unpaid
balance from the Spouses Galura. A demand letter was sent to
spouses Galura wherein it stated that they were giving them 5
days upon receipt of the letter, to pay the unpaid balance plus
interest; that failure to pay would result in an action in court.
Because of non-payment after demand was made, MAC filed a
complaint with the RTC praying that the court would order
spouses Galura to settle the balance plus attorney’s fee and
litigation expenses. In their complaint, MAC provided for their
address where summons may be served to them. Clerk of
Court Ortega issued the summons. 1st SERVICE: went to 230
Apo St., Sta. Mesa Heights , Quezon City where he was
informed that the Spouses Galura were presently residing at
Tierra Pura Subdivision, Tandang Sora, Quezon City . 2nd
SERVICE: went to G.L. Calayan Agro System, Inc. in Barrio
Kalayaan, Gerona , Tarlac to serve the summons, however he
learned that the property had been foreclosed and that the
Spouses Galura no longer resided there. 3rd SERVICE: went to
Tierra Pura Subdivision, Tandang Sora, Quezon City , to serve
the summons. Sildo served the summons on Teresa L.
Galura’s sister, Victoria Lapuz. The Spouses Galura failed to
file their answer. RTC declared them in default and allowed
MAC to present its evidence ex parte. RTC ruled in favor of
MAC and ordered the Spouses Galura to pay the unpaid
balance, attorney’s fees, and expenses of litigation.
Subsequently, RTC issued a writ of execution to implement its
Decision. Thereafter, Spouses Galura received ―from their
parents-in-law‖ a copy of the 10 November 2004 Order.
Spouses Galura filed with the CA a petition for annulment of
judgment and final order under Rule 47 of the Rules of Court,
with prayer for the issuance of a writ of preliminary injunction
or temporary restraining order, claiming that the RTC’s
Decision and Order were void beacuse the RTC failed to
acquire jurisdiction over their persons because the substituted
service of summons was invalid, and there was extrinsic fraud
because MAC made them believe that it would not file a case
against them - MAC, despite the commitment of its owner not
to file the complaint, did so. Such an act on the part of Math-
Agro and its owner constitutes extrinsic fraud, as it prevented
petitioners from defending themselves in the action lodged
with the RTC. common law; it is a method extraordinary in
character, and hence may be used only as prescribed and in
the circumstances authorized by statute.‖ CA dismissed the
petition for lack of merit. The Court of Appeals held that there
was a valid substituted service of summons, that the
allegation of extrinsic fraud was unbelievable, and that the
Spouses Galura should have first availed of the ordinary
remedies of new trial, appeal, or petition for relief. The
Spouses Galura filed a MR but was denied. Hence, the present
petition. In the present case, there was no showing in the
return of service (1) of the impossibility of personal service
within a reasonable time; (2) that Lapuz, the person on whom
summons was served, was of suitable age and discretion; and
(3) that Lapuz resided in the residence of the Spouses Galura.
Consequently, the RTC did not acquire jurisdiction over the
persons of the Spouses Galura, and thus the Spouses Galura
are not bound by the RTC’s Decision and Order.
Issue:Was there a valid substituted service of summons?
NONE.
Page 76
Civil Procedure
ESGUERRA NOTES
Held: Sildo, in his Rertun, did not state that his attempts
to serve the summons by personal service at the Tierra
Pura Subdivision address failed, and that the same could
not be made within a reasonable time. He likewise failed
to state facts and circumstances showing why personal
service of the summons upon the petitioners at the said
address was impossible. Finally, he also failed to state
that Ms. Victoria Lapuz, the person with whom he left the
summons, was a person of sufficient age and discretion,
and residing in the said Tierra Pura address. In a case
where a petition for annulment of a judgment or final
order of the RTC filed under Rule 47 of the Rules of Court
is grounded on lack of jurisdiction over the person of the
defendant/respondent or over the nature or subject of the
action, the petitioner need not allege in the petition that
the ordinary remedy of new trial or reconsideration of the
final order or judgment or appeal therefrom are no longer
available through no fault of her own. This is so because
a judgment rendered or final order issued by the RTC
without jurisdiction is null and void and may be assailed
any time either collaterally or in a direct action or by
resisting such judgment or final order an any action or
proceeding whenever it is invoked, unless barred by
laches.
Presumption of regularity in the performance of
official functions does not apply
PASCUAL V. PASCUAL (2009)
Facts: Constatino A. Pascual filed a complaint for Specific
Performance before the RTC. In the Return Service, the
Process Server reported that he failed to deliver the
summons to the defendant. According to the report, the
defendant [Dr. Lourdes Pascual] was not at her home and
only her maid was there who refused to receive the
summons. His efforts to effect the service is backed up by
a certification of the Barangay in the area. The following
day, the Process Server went back at the defendant’s
place, but again she is not home.
Thereafter, an alias summons was issued by the
RTC. Subsequently, the Process Server returned with the
report that a substituted service was effected. For failure
of respondent to file a responsive pleading, petitioner,
filed a Motion to Declare Defendant in Default to which
Dr. Lourdes Pascual filed an opposition claiming that she
was not able to receive any summons and a copy of the
complaint hence the RTC cannot exercise jurisdiction
over her person. RTC declared Dr. Lourdes Pascual in
Default. She filed a Motion for Reconsideration, which was
denied. Consequently, the RTC in its decision found favor
on Mr. Constantino Pascual against Dr. Lourdes Pascual.
She then filed a Motion to Set Aside Order of Default with
the argument of non-service of Summons. RTC denied
and on the same day issued a Certificate of Finality and
Entry of Judgment. Dr. Lourdes filed a Petition for
Certiorari and Prohibition under Rule 65 in the CA. The CA
ruled favoring her. Petitioner herein [Constantino
Pascual] through a Petition for Review on Certiorari under
Rule 45 comes now to the SC.
Issue: Whether the Service of Summons is valid?
Held: In a case where the action is ‘in personam’ and the
defendant is in the Philippines, the service may be done by
personal or substituted. A plain reading of Rule 14,
Sections 6 and 7 indicates that “Personal Service” should
and always be the first option, only when the said
summons cannot be served within a reasonable time can
the process server resort to substituted service. The Court
gave a discussion as to the nature of the requisites of
substituted service in Manotoc v. Court of Appeals. We can
break down this section into the following requirements to
effect a valid substituted service:
1) Impossibility of Prompt Personal
Service
2) Specific Details in the Return
3) A Person Suitable of Age and
Discretion
4) A Competent Person in Charge
Petitioner contends that there was a
valid substituted service of summons
as shown in three officer’s return.
However, this Court stresses that the Process
Server must show that the defendant cannot be served
promptly, or that there was an impossibility of service. The
Return of Summons in this case does not show or indicate
the actual exertion or any steps by the officer to serve the
summons. In the absence of even the barest compliance
with the procedure for substituted service of summons
outlined in the Rules, the principle of “Presumption of
Regularity” cannot apply.
Exception – the absence in the sheriff’s return of a
statement about the impossibility of personal
service does not conclusively prove that the
service is invalid (liberal rule)
MAPA V. CA (1993)
Facts: A complaint for Recovery of sum of money was
filed vs. High Peak Mining. Summons was issued to be
served upon Mapa, the chairperson, & upon other officers
of the corporation. However, said summons was served
upon an employee of said corp. Defendants were declared
in default. Defendants filed an MTD & Set Aside Default
Judgment on the ground of lack of jurisdiction of the ct.
over their person as the service of summons was
improper, i.e., served upon an EE who may not be
considered as an “agent” of the corporation; moreover,
Sheriff did not indicate in his Return his efforts at serving
summons personally before resorting to substituted
service.
Issue: WON the Court the Court acquired jurisdiction over
the defendant. NO
Held: The Court lacked jurisdiction.
1. General Rule: Sheriff’s Return must show
that prior attempts at personal service were made by the
Sheriff & that such attempts had failed, prompting him to
resort to Substituted service. HOWEVER, it must be
emphasized that Absence in the Sheriff’s Return of a
statement about the impossibility of personal service DOES
NOT conclusively prove that the service is invalid. Proof of
such prior attempts may be submitted by the plaintiff
during the hearing of any incident assailing the validity of
the substituted service. While Sheriff’ Return carries w/ it
the presumption of regularity, that entries therein are
deemed correct, it does not necessarily follow that an act
done in relation to the official duty for w/c the return is
made was not simply done bec. it is not disclosed
therein. Besides, the sheriff’s neglect in making such a
disclosure should not unduly prejudice the plaintiff if what
was undisclosed was in fact done.
2. The EE may be considered as an “agent” for
the purpose of Sec. 13, & there was a substantial
Page 77
Civil Procedure
ESGUERRA NOTES
compliance under the said sec. because in the CAB,
petitioner failed to deny the statement in Sheriff’s Return
that the EE is “authorized to receive process of this
nature”, said Return enjoying the presumption of
regularity, & the logical conclusion is that she delivered the
summons to the corporation.
3. In an action in personam as in the CAB,
personal service of summons w/in the forum is essential to
the acquisition of jurisdiction over the person of the
defendant who does not voluntarily submit himself to the
authority of the court.
Effect of receipt by security guard
Individual Defendant
ROBINSON v. MIRALLES (2006)
FACTS:Respondent Celita Miralles filed a character. For substituted service to be justified, the
complaint for collection of sum of money against petitioner
Remelita Robinson, alleging that $20,054 was borrowed by
Robinson, as shown in the MOA they both executed.
Summons was served on Robinson at her given
address. However, per return of service of the Sheriif,
petitioner no longer resides there. Thus, the trial court
issued an alias summons to be served at Muntinlupa City,
petitioner’s new address.
Again, the Sheriff reported twice thereafter that
the summons could not be served on petitioner. Sheriff
Pontente, who was to serve the summons interposed that
he was stopped by the Security Guard of Alabang Hills
Village because they were allegedly told by Robinson not
to let anyone proceed to her house if she is not around.
Despite the explanations of the Sheriff, the guards didn’t
let him in. Thereafter, the Sheriff just left a copy of the
complaint to a guard, who refused to affix his signature on
the original copy, so he will be the one to give the
summons to petitioner Robinson.
Eventually, petitioner Robinson was declared in
default for her failure to file an answer seasonably despite
service of summons. The trial court rendered its decision in
favor of Miralles ordering Robinson to pay her obligations
plus cost of damages. A copy of the court Order was sent
to petitioner by registered mail at her new address and a
writ of execution was also issued.
Robinson filed a petition for relief from the
judgment by default. She claimed that summons was
improperly served upon her, thus, the trial court never
acquired jurisdiction over her and that all its proceedings
are void. Petitioner Robinson contends that the service of
the summons upon the subdivision guard is not in
compliance with Section 7, Rule 14 since he is not related
to her or staying at her residence, as required by the rule.
ISSUE: Whether the substituted service of summons
effected is valid
YES. Although the SC have ruled that the
statutory requirements of substituted service must be
followed strictly, faithfully, and fully and any substituted
service other than that authorized by the Rules is
considered ineffective, the Court frowns upon an overly
strict application of the Rules. It is the spirit, rather than
the letter of the procedural rules, that governs.
Obviously, it was impossible for the sheriff to
effect personal or substituted service of summons upon
petitioner. We note that she failed to controvert the
sheriff’s declaration. Nor did she deny having received the
summons through the security guard. Considering her
strict instruction to the security guard, she must bear its
consequences. Thus, we agree with the trial court that
summons has been properly served upon petitioner and
that it has acquired jurisdiction over her.
Where the action is in personam and the
defendant is in the Philippines, the service of summons
may be made through personal or substituted service in
the manner provided for in Sections 6 and 7, Rule 14 of
the 1997 Rules of Procedure, as amended.
Under our procedural rules, personal service is
generally preferred over substituted service, the latter
mode of service being a method extraordinary in
following circumstances must be clearly established: (a)
personal service of summons within a reasonable time
was impossible; (b) efforts were exerted to locate the
party; and (c) the summons was served upon a person of
sufficient age and discretion residing at the party’s
residence or upon a competent person in charge of the
party’s office or place of business.
Defendant Corporation
ORION SECURITY CORPORATION
V. KALFAM ENTERPRISES, INC.
(2007)
FACTS: Petitioner Orion Security Corporation is
a domestic private corporation engaged in the business
of providing security services. One of its clients is
respondent Kalfam Enterprises, Inc. Respondent was not
able to pay petitioner for services rendered. Petitioner
thus filed a complaint against respondent for collection
of sum of money. The sheriff tried to serve the
summons and a copy of the complaint on the secretary
of respondent’s manager. However, respondent’s
representatives allegedly refused to acknowledge their
receipt. The summons and the copy of the complaint
were left at respondent’s office. When respondent failed
to file an Answer, petitioner filed a motion to declare
respondent in default. The trial court, however, denied
the motion on the ground that there was no proper
service of summons on respondent.
Petitioner then filed a motion for alias
summons, which the trial court granted. The process
server again left the summons and a copy of the
complaint at respondent’s office through respondent’s
security guard, who allegedly refused to acknowledge
their receipt. Again, respondent failed to file an Answer.
On motion of petitioner, respondent was declared in
default. Thereafter, petitioner was allowed to adduce
evidence ex parte.
Respondent filed a motion for
reconsideration of the resolution declaring it in default.
Respondent alleged the trial court did not acquire
jurisdiction over its person due to invalid service of
summons. The trial court denied the motion for
reconsideration. The trial court rendered a default
judgment. On appeal, the Court of Appeals held that
summons was not validly served on respondent.
Petitioner’s MR of the Court of Appeals’ decision was
denied. Hence, the instant petition.
Page 78
Civil Procedure
ESGUERRA NOTES
Petitioner contends that the trial court acquired
jurisdiction over respondent due to the latter’s voluntary
appearance in the proceedings before the said court.
Petitioner insists substituted service of summons on
respondent’s security guard is substantial compliance
with the rule on service of summons, in view of the
exceptional circumstances in the present case.
Respondent counters that the special
appearance of its counsel does not constitute voluntary
appearance. Respondent maintains that its filing of an
opposition to petitioner’s motion to declare respondent
in default and other subsequent pleadings questioning
the trial court’s jurisdiction over it does not amount to
voluntary appearance. Respondent stresses it was not
properly served with summons via substituted service.
ISSUE: Whether or not the trial court acquired
jurisdiction over respondent either by (1) valid
substituted service of summons on respondent; or (2)
respondent’s voluntary appearance in the trial court and
submission to its authority.
HELD: NO. Courts acquire jurisdiction over the plaintiffs
upon the filing of the complaint. On the other hand,
jurisdiction over the defendants in a civil case is
acquired either through the service of summons upon
them or through their voluntary appearance in court and
their submission to its authority.
As a rule, summons should be personally
served on the defendant. It is only when summons
cannot be served personally within a reasonable period
of time that substituted service may be resorted to. In
this case, records show that respondent’s president,
managing partner, general manager, corporate
secretary, treasurer, or in-house counsel never received
the summons against respondent, either in person or by
substituted service.
Note that in case of substituted service, there
should be a report indicating that the person who
received the summons in the defendant’s behalf was one
with whom the defendant had a relation of confidence
ensuring that the latter would actually receive the
summons. Here, petitioner failed to show that the
security guard who received the summons in
respondent’s behalf shared such relation of confidence
that respondent would surely receive the summons.
Hence, we are unable to accept petitioner’s contention
that service on the security guard constituted substantial
compliance with the requirements of substituted service.
Neither did the trial court acquire jurisdiction
over respondent by the latter’s voluntary appearance in
court proceedings. Note that a party who makes a
special appearance in court challenging the jurisdiction
of said court based on the ground of invalid service of
summons is not deemed to have submitted himself to
the jurisdiction of the court. In this case, records show
that respondent, in its special appearance, precisely
questioned the jurisdiction of the trial court on the
ground of invalid service of summons. Thus, it cannot be
deemed to have submitted to said court’s authority.
Hence, respondent cannot be bound by the
trial court’s judgment ordering it to pay petitioner a sum
of money.
Publication
Where the defendant is
(1) designated as an unknown owner, or the like,
or
(2) whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry,
Service may, by leave of court, be effected upon him by
(1) publication in a newspaper of general
circulation and
(2) in such places and for such time as the court
may order. (Sec. 14, Rule 14)
Extraterritorial
When the defendant
(1) does not reside and is not found in the
Philippines, and
(2) the action affects
a. the personal status of the plaintiff or
b. 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
c. in which the relief demanded
consists, wholly or in part, in
excluding the defendant from any
interest therein, or
d. the property of the defendant has
been attached within the Philippines,
Service may, by leave of court, be effected out of the
Philippines
(4) by personal service as under section 6; or
(5) 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,
(6) 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. (Sec.
15, Rule 14)
Residents temporarily out of the Philippines.
When any action is commenced against a defendant who
ordinarily resides within the Philippines, but who is
temporarily out of it, service may, by leave of court, be
also effected out of the Philippines by extraterritorial
service. (Sec. 16, Rule 14)
VALMONTE v. CA (1996)
FACTS: Rosita Dimalanta, sister of petitioner Lourdes
Valmonte, filed a complaint for partition of real property
and accounting of rentals against petitioners Valmonte
spouses. Lourdes Valmonte is a foreign resident. The
RTC denied private respondent's motion to declare
petitioner Lourdes A. Valmonte in default. A motion for
reconsideration was similarly denied. Private respondent
filed a petition for certiorari, prohibition
and mandamus with the Court of Appeals. The Court of
Appeals rendered a decision granting the petition and
declaring Lourdes in default. A copy of the appellate
Page 79
Civil Procedure
ESGUERRA NOTES
court's decision was received by petitioner Lourdes’
husband at his Manila law office and in Seattle,
Washington.
ISSUE: Whether in an action for partition filed
against her and her husband, who is also her attorney,
summons intended for her may be served on her
husband, who has a law office in the Philippines
NO. Private respondent's action, which is for
partition and accounting under Rule 69, is in the nature
of an action quasi in rem. Such an action is essentially
for the purpose of affecting the defendant's interest in a
specific property and not to render a judgment against
him. As petitioner Lourdes Valmonte is a nonresident
who is not found in the Philippines, service of summons
on her must be in accordance with Rule 14, §17. Such
service, to be effective outside the Philippines, must be
made either (1) by personal service; (2) 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 should be
sent by registered mail to the last known address of the
defendant; or (3) in any other manner which the court
may deem sufficient.
PERKIN ELMER SINGAPORE v. DAKILA TRADING
(2007)
FACTS: Dakila Trading Corp (Dakila) entered
into a Distribution Agreement with Perkin-Elmer
Singapore Pte. Ltd. (PES) which appointed Dakila as sole
distributor of its products in the Philippines. PES was
obligated to give Dakila a commission for the sale of its
products in the Philippines. Dakila was granted the right
to purchase and sell the products of PES. The agreement
further stipulated that Dakila shall order the products of
PES, which it shall sell in the Philippines, either from PES
itself or from PEIP.
However, PES unilaterally terminated the
Distribution Agreement, prompting Dakila to file before
the RTC a Complaint for Collection of Sum of Money and
Damages with Prayer for Issuance of a Writ of
Attachment against PES and its affiliate, Perkin-Elmer
Instruments Philippines Corporation (PEIP). RTC denied
respondent’s prayer.
Dakila filed Ex-Parte Motions for Issuance of
Summons and for Leave of Court to Deputize Dakila’s
General Manager (DGM) to Serve Summons Outside of
the Philippines. RTC granted this motion. Thus, an Alias
Summons was issued by the RTC to PES. But the said
Alias Summons was served and received by Perkin-
Elmer Asia (PEA), a corporation allegedly unrelated to
PES. PEIP moved to dismiss the Complaint filed by
Dakila. PEA, on the other hand, sent letters to Dakila
and RTC to inform them of the wrongful service of
summons.
Accordingly, Dakila filed an Ex-Parte Motion to
Admit Amended Complaint, together with the Amended
Complaint claiming that (1) PEA had become a sole
proprietorship owned by the PES, (2) PES changed its
name to PEA, (3) such changes did not avoid its due and
outstanding obligations to Dakila, and (4) the name of
PES in the complaint should be changed to PEA. RTC
admitted the Amended Complaint.
Dakila filed another Motion for the Issuance of
Summons and for Leave of Court to Deputize DGM to
serve summons outside the Philippines. RTC granted
the motion. RTC thus issued summons and the DGM
went to Singapore and served summons on PES.
Meanwhile, RTC denied the Motion to Dismiss
filed by PEIP, compelling the latter to file its Answer to
the Amended Complaint.
PES filed with the RTC a Special Appearance
and Motion to Dismiss the Amended Complaint, which
were denied. It held that even though the Amended
Complaint is primarily for damages, it does relate to a
property of PES, to which the latter has a claim interest,
or an actual or contingent lien, which will make it fall
under one of the requisites for extraterritorial service.
PES filed a Petition for Certiorari under Rule 65 with
application for temporary restraining order and/or
preliminary injunction before the CA. The CA affirmed
the RTC Orders.
ISSUE: Whether summons were properly
served under the 2nd or 4th instance of extra-territorial
service
NO. Extraterritorial service of summons
applies only where the action is in rem or quasi in rem,
but not if an action is in personam. In the case at bar,
there can never be a valid extraterritorial service of
summons upon it, because the case involving collection
of a sum of money and damages is an action in
personam, as it deals with the personal liability of PES
by reason of the alleged unilateral termination of the
Distribution Agreement. The objective sought in Dakila’s
Complaint was to establish a claim against PES.
Moreover, The action instituted by Dakila affects the
parties alone, not the whole world.
Thus, being an action in personam, personal
service of summons within the Philippines is necessary
in order for the RTC to validly acquire jurisdiction over
the person of PES, and this is not possible in the present
case because the PES is a non-resident and is not found
within the Philippines. Dakila’s allegation in its Amended
Complaint that PES had personal property within the
Philippines in the form of shares of stock in PEIP did not
make the case fall under any of the four instances
mentioned in Section 15, Rule 14 of the Rules of Court,
as to convert the action in personam to an action in rem
or quasi in rem and, subsequently, make the
extraterritorial service of summons upon the petitioner
valid.
The 2nd instance for extra-territorial service
has no application in the case. The action for collection
of a sum of money and damages was purely based on
the personal liability of the PES. For the action to be one
falling under the 2nd instance, the main subject matter
of the action must be the property itself of the PES in
the Philippines and in such instance, judgment will be
limited to the res. However, the allegations made by the
respondent that the petitioner has property within the
Philippines in support of its application for the issuance
of a writ of attachment was actually denied by the RTC.
Neither does the allegation that PES had
personal property within the Philippines in the form of
shares of stock in PEIP convert the case from an action
in personam to one quasi in rem, so as to qualify said
case under the 4th instance of extra-territorial service.
Page 80
Civil Procedure
ESGUERRA NOTES
What is required is not a mere allegation of the
existence of personal property belonging to the non-
resident defendant within the Philippines but that the
non-resident defendant’s personal property located
within the Philippines must have been actually attached.
Evidently, PES’s personal property within the Philippines,
in the form of shares of stock in PEIP, had not been
attached; hence, the case for collection of sum of money
and damages remains an action in personam.
In the case at bar, there can never be a valid
extraterritorial service of summons upon it, because the
case involving collection of a sum of money and
damages is an action in personam, as it deals with the
personal liability of PES by reason of the alleged
unilateral termination of the Distribution Agreement. The
objective sought in Dakila’s Complaint was to establish a
claim against PES. Moreover, The action instituted by
Dakila affects the parties alone, not the whole world.
Thus, being an action in personam, personal
service of summons within the Philippines is necessary
in order for the RTC to validly acquire jurisdiction over
the person of PES, and this is not possible in the present
case because the PES is a non-resident and is not found
within the Philippines. Dakila’s allegation in its Amended
Complaint that PES had personal property within the
Philippines in the form of shares of stock in PEIP did not
make the case fall under any of the four instances
mentioned in Section 15, Rule 14 of the Rules of Court,
as to convert the action in personam to an action in rem
or quasi in rem and, subsequently, make the
extraterritorial service of summons upon the petitioner
valid.
Voluntary appearance
The defendant’s voluntary appearance in the action shall
be equivalent to service of summons.
The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance.
(Sec. 20, Rule 14)
CEZAR v. RICAFORT-BAUTISTA (2006)
FACTS: Private respondent Specified Materials
Corporation filed a Complaint for collection of sum of
money against petitioner Cezar due to the latter’s failure
to pay the construction materials it purportedly
purchased under a credit line extended by private
respondent. At the time of the institution of the action,
petitioner’s obligation stood at P1,860,000.00, and
under the terms of the credit arrangement, materials
sold to petitioner were supposed to be paid within 30
days from date of delivery, subject to a 3% interest per
month for delayed payments.
After the filing of the complaint, summons was
issued, and this was received by a certain Robles. As
petitioner failed to file his answer to the complaint,
private respondent moved that he be declared in
default. This motion was granted.
Private respondent filed a Motion to Admit
Amended Complaint alleging that it erroneously
computed petitioner’s obligation to be P1,860,000.00,
when it should have amounted to P2,005,000.00. A
copy of the motion and the Amended Complaint were
personally received by petitioner as evidenced by his
signatures thereon. The Amended Complaint was
ordered admitted. The court ruled in favor of plaintiff.
Petitioner, by way of special appearance,
argued that the trial court did not acquire jurisdiction
over his person. This motion was denied. Petitioner filed
before the CA a Petition for Annulment of Judgment,
Preliminary Injunction with Prayer for Temporary
Restraining Order. This petition was dismissed for
“failure to attach an affidavit of merit alleging the facts
supporting the good and substantial defense, as well as
the affidavits of witnesses or document supporting the
defense.”
Petitioner filed a motion for reconsideration but
this was denied. Following this set-back, petitioner filed
before this Court a Petition for Review on Certiorari of
the resolutions of the CA, which was also denied for
failure to comply with procedural requirements. Our
resolution became final and executory. Private
respondent filed a Motion for Execution before the trial
court.
ISSUE: Whether the court acquired jurisdiction
over the person of the petitioner by virtue of the
substituted service of summons effected by the sheriff
NO. The person who allegedly received the
summons was identified in the sheriff’s return as Arsenio
Robles, was not petitioner’s employee, was a native of
Batangas and was merely peddling mango seedlings
within the vicinity of his office when the summons was
served.
In the event that summons cannot be served
within a reasonable time, the Rules permit that
substituted service may be resorted to. In this case, the
sheriff employed the substituted service of
summons. The defect, however, in the manner in which
he implemented this mode of service of summons is
readily apparent on the face of the return. It must be
emphasized that laws providing for modes other than
the personal service of summons must be strictly
followed in order for the court to acquire jurisdiction
over the person of respondent or defendant. As the
sheriff’s return in the present case does not contain any
statement with regard to the impossibility of personal
service the same is patently defective and so the
presumption of regularity in the performance of official
functions will not lie.
ISSUE: Whether petitioner’s voluntary
appearance cured the defect in service of summons.
HELD: YES. In Flores v. Zurbito, we held that
an appearance in whatever form without expressly
objecting to the jurisdiction of the court over the person,
is a submission to the jurisdiction of the court over the
person of the defendant or respondent, thus:
He may appear without such formal
appearance and thus submit himself to the jurisdiction
of the court. He may appear by presenting a motion, for
example, and unless by such appearance he specifically
objects to the jurisdiction of the court, he thereby gives
his assent to the jurisdiction of the court over his
person.
Hence, in this case, petitioner’s filing of a
Motion for Re-setting of the Hearing effectively cured the
defect of the substituted service of
summons. Petitioner’s insistence of lack of jurisdiction
over his person is utterly lacking in any legal basis.
Page 81
Civil Procedure
ESGUERRA NOTES
LHUILLER v. BRITISH AIRWAYS (2010)
FACTS: Lhuillier took respondent British
Airway’s flight 548 from London, United Kingdom to
Rome, Italy. Once on board, she allegedly requested
Halliday, one of the respondent’s flight attendants, to
assist her in placing her hand-carried luggage in the
overhead bin. However, Halliday allegedly refused to
help and assist her, and even sarcastically remarked
that "If I were to help all 300 passengers in this flight, I
would have a broken back!"
Petitioner further alleged that when the plane
was about to land in Rome, Italy, another flight
attendant, Kerrigan, singled her out from among all the
passengers in the business class section to lecture on
plane safety. Allegedly, Kerrigan made her appear to the
other passengers to be ignorant, uneducated, stupid,
and in need of lecturing on the safety rules and
regulations of the plane. Affronted, petitioner assured
Kerrigan that she knew the plane’s safety regulations
being a frequent traveler. Thereupon, Kerrigan allegedly
thrust his face a mere few centimeters away from that
of the petitioner and menacingly told her that "We don’t
like your attitude."
Upon arrival in Rome, petitioner complained to
respondent’s ground manager and demanded an
apology. However, the latter declared that the flight
stewards were "only doing their job."
Thus, petitioner filed the complaint for
damages. Summons, together with a copy of the
complaint, was served on the respondent through
Echevarria, General Manager of Euro-Philippine Airline
Services, Inc.
Respondent, by way of special appearance
through counsel, filed a Motion to Dismiss on grounds of
lack of jurisdiction over the case and over the person of
the respondent. Respondent alleged that only the courts
of London, United Kingdom or Rome, Italy, have
jurisdiction over the complaint for damages pursuant to
the Warsaw Convention. Thus, since respondent is
domiciled in London; respondent’s principal place of
business is in London; petitioner bought her ticket in
Italy (through Jeepney Travel S.A.S, in Rome); and
Rome, Italy is petitioner’s place of destination, then it
follows that the complaint should only be filed in the
proper courts of London, United Kingdom or Rome, Italy.
Likewise, it was alleged that the case must be dismissed
for lack of jurisdiction over the person of the respondent
because the summons was erroneously served on Euro-
Philippine Airline Services, Inc. which is not its resident
agent in the Philippines.
Instead of filing a Comment/Opposition,
petitioner filed an Urgent Ex-Parte Motion to Admit
Formal Amendment to the Complaint and Issuance of
Alias Summons. Petitioner alleged that upon verification
with the SEC, she found out that the resident agent of
respondent in the Philippines is Alonzo Q. Ancheta.
Subsequently, petitioner filed a Motion to Resolve
Pending Incident and Opposition to Motion to Dismiss.
ISSUE: Whether British Airways, in filing its
motion to dismiss may be deemed as having in fact and
in law submitted itself to the jurisdiction of the lower
court,.
HELD: NO. The Warsaw Convention has the
force and effect of law in this country. The Warsaw
Convention applies because the air travel, where the
alleged tortious conduct occurred, was between the
United Kingdom and Italy, which are both signatories to
the Warsaw Convention. Since the Warsaw Convention
applies in the instant case, then the jurisdiction over the
subject matter of the action is governed by the
provisions of the Warsaw Convention.
Respondent, in seeking remedies from the trial
court through special appearance of counsel, is not
deemed to have voluntarily submitted itself to the
jurisdiction of the trial court. Thus, a defendant who files
a motion to dismiss, assailing the jurisdiction of the
court over his person, together with other grounds
raised therein, is not deemed to have appeared
voluntarily before the court. What the rule on voluntary
appearance means is that the voluntary appearance of
the defendant in court is without qualification, in which
case he is deemed to have waived his defense of lack of
jurisdiction over his person due to improper service of
summons.
A special appearance before the court––
challenging its jurisdiction over the person through a
motion to dismiss even if the movant invokes other
grounds––is not tantamount to estoppel or a waiver by
the movant of his objection to jurisdiction over his
person; and such is not constitutive of a voluntary
submission to the jurisdiction of the court.
In this case, the special appearance of the
counsel of respondent in filing the Motion to Dismiss and
other pleadings before the trial court cannot be deemed
to be voluntary submission to the jurisdiction of the said
trial court.
Return of service
When the service has been completed, the server shall,
(1) within five (5) days therefrom,
(2) serve a copy of the return, personally or by
registered mail, to the plaintiff’s counsel, and
(3) shall return the summons to the clerk who
issued it,
(4) accompanied by proof of service. (Sec. 4, Rule
14)
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 on the plaintiff's 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.
Proof of service
The proof of service of a summons shall be
(1) made in writing by the server and
(2) shall set forth the manner, place, and date of
service;
(3) shall specify any papers which have been
served with the process and
(4) the name of the person who received the
same; and
(5) shall be sworn to when made by a person
other than a sheriff or his deputy. (Sec. 18,
Rule 14)
Page 82
Civil Procedure
ESGUERRA NOTES

The following are prohibited in Small Claims Cases:

Publication
If the service has been made by publication, service
may be proved by
(1) the affidavit of the printer, his foreman or
principal clerk, or of the editor, business or
advertising manager,
(2) an attached copy of the publication, and
(3) 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. (Sec. 19, Rule 14)
Rule 15
Motions
(1) Motion to dismiss the complaint, except on
ground of lack of jurisdiction’
(2) Motion for bill of particulars;
(3) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file pleadings,
affidavits and other papers;
(6) Memoranda;
(7) Petition for certiorari, and mandamus or
prohibition against an interlocutory order of the
court;
(8) Motion to declare the defendant in default;
(9) Dilatory motions for postponement
(10) Reply;
(11) Third-party complaints;
(12) Interventions.

In general
A motion is an application for relief other than by a Contents
pleading. (Sec. 1, Rule 15) A motion shall
(1) state the relief sought to be obtained
Form (2) the grounds upon which it is based, and
General rule: All motions shall be in writing. (3) shall be accompanied by supporting affidavits
and other papers, if required by these Rules or
Exceptions: necessary to prove facts alleged therein. (Sec.
(1) Motions made in open court or 3, Rule 15)
(2) Motions made in the course of a hearing or
trial. (Sec. 2, Rule 15)
Omnibus motion rule
Generally A motion attacking a pleading, order, judgment, or
The Rules applicable to pleadings shall apply to written proceeding shall include all objections then
motions so far as concerns available, and all objections not so included shall be
(1) caption, deemed waived. (Sec. 8, Rule 15)
(2) designation,
(3) signature, and Exceptions
(4) other matters of form. (Sec. 10, Rule 15) The court shall dismiss the claim
when it appears from the pleadings
May be oral or the evidence on record that
General rule: All motions shall be in writing. (1) the court has no jurisdiction
Exception Motions made in open court or in the over the subject matter,
course of a hearing or trial. (Sec. 2, Rule 15) (2) there is another action
pending between the same
Motion for leave parties for the same cause,
A motion for leave to file a pleading or motion shall be or that
accompanied by the pleading or motion sought to be (3) the action is barred by a
admitted. (Sec. 9, Rule 15) prior judgment or
(4) barred by the statute of
Prohibited motion limitations. (Sec. 1, Rule 9)
The following pleadings and motions are prohibited in a
summary procedure:
(1) Motion to dismiss except on the ground of lack Notice of hearing
of jurisdiction over subject matter and failure General Rule: Every written motion shall be set for
to comply with barangay conciliation hearing by the applicant.
proceedings;
(2) Motion for new trial, or for reconsideration of a Exception: Motions which the court may act upon
judgment, or for reopening of trial; without prejudicing the rights of the adverse
(3) Petition for relief from judgment; party. (Sec. 4, Rule 15)
(4) Motion for extension of time to file pleadings,
affidavits and other papers; NOTE: Every written motion required to be heard
(5) Memoranda; and the notice of the hearing thereof shall be
(6) Petition for certiorari, and mandamus or served
prohibition against an interlocutory order of the (1) in such a manner as to ensure its
court; receipt by the other party
(7) Motion to declare the defendant in default; (2) at least three (3) days before the
(8) Dilatory motions for postponement date of hearing, unless the court for
(9) Reply; good cause sets the hearing on
(10) Third-party complaints; shorter notice.
(11) Interventions.

Page 83
Civil Procedure
ESGUERRA NOTES
Notice of hearing—
The notice of hearing shall be
(1) addressed to all parties concerned,
and
(2) shall specify the time and date of the
hearing which must not be later than
ten (10) days after the filing of the
motion. (Sec. 5, Rule 15)
General rule: without compliance —
scrap of paper
A motion which does not meet the
requirements of Sections 4 and 5 of Rule
15 is a mere scrap of paper which the
clerk of court has not right to receive and
the trial court has no authority to act
upon.
SPOUSES RUSTIA V.EMERITA RIVERA (2006)
FACTS: Emerita Rivera filed with the
Metropolitan Trial Court (MeTC), Branch 36, Quezon
City, a complaint for sum of money against spouses
Carlos and Teresita Rustia, petitioners, and Rosemarie F.
Rocha. The trial court rendered its Decision in favor of
Emerita Rivera. The MeTC ruled in favor of Emerita
Rivera. On appeal by spouses Rustia, the Regional Trial
Court (RTC), Branch 77, Quezon City affirmed the
MeTCs Decision in toto. Spouses Rustia filed a motion
for reconsideration but it was denied by the RTC as it
does not contain a notice of the time and place of
hearing required by Sections 4 and 5, Rule 15 of the
1997 Rules of Civil Procedure, as amended.
ISSUE: Whether the motion for reconsideration
filed with the RTC by spouses Rustia is a mere scrap of
paper for lack of notice of hearing;
HELD: Yes.
Sections 4 and 5, Rule 15 of the 1997 Rules of Civil
Procedure, as amended, provide:
SEC. 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.
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.
SEC. 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.
Section 4 lays the general rule that all written
motions shall be set for hearing by the movant, except
the non-litigated motions or those which may be acted
upon by the court without prejudicing the rights of the
adverse party. These ex parte motions include a motion
for extension of time to file pleadings, motion for
extension of time to file an answer, and a motion for
extension of time to file a record on appeal. The
requirement of notice under Sections 4 and 5, Rule 15 is
mandatory and the lack thereof is fatal to a motion for
reconsideration. Thus, the Court of Appeals did not err
when it affirmed the RTC ruling that petitioners motion
for reconsideration is but a mere scrap of paper because
it does not comply with Sections 4 and 5, Rule 15.
Defective notice of hearing
VICTORY LINER, INC. v. MALINIAS (2007)
FACTS: A vehicular collision happened between
petitioner Victory Liner, Inc. (VLI) and an Isuzu Truck
used by respondent Michael Malinias. No one died, but
both vehicles were damaged. Malinias filed a complaint
for damages against petitioner and the bus driver,
Leoncio Bulaong with the MTC, alleging pecuniary
damage to the truck worth P47,180 representing lost
income for the non-use of the truck. After pre-trial, the
bus driver was dropped as defendant in the case.
During trial, respondent finished presenting his
evidence and rested his case. Counsel for petitioner VLI
filed a motion to withdraw as counsel, but the same was
denied. When the case was called for reception of
petitioner’s evidence, no appearance was made for the
bus company. Respondent thus moved that petitioner be
declared to have waived its right to adduce evidence in
its favor. The case was deemed submitted for judgment
and the MTC ruled in favor of respondent Malinias,
ordering VLI to pay him.
VLI’s new counsel filed a Motion for
Reconsideration. The Notice of Hearing therein stated:
"Please submit the foregoing Motion for Reconsideration
for hearing before the CA at a schedule and time
convenient to the Court and the parties.” The MTC ruled
that the notice did not conform with the mandatory
requirements of Section 5, Rule 15, and that the motion
was thus a mere scrap of paper which did not suspend
the period to appeal.
Petitioner VLI thereafter filed a Notice of
Appeal and a motion for the inhibition by the MTC, which
was granted. The case was assigned to a new MTC
judge, who was tasked to rule on the Notice of Appeal.
The MTC ruled that it had been filed beyond the
reglementary period. Again, the MTC reiterated its initial
judgment in favor of Malinias since the fatally defective
MR did not toll the reglementary period for appeal.
The RTC affirmed the judgment of the MTC and
held the decision final and executory.
ISSUE: Whether the Notice of Hearing filed
was defective
HELD: YES. The most crucial failure on the
part of petitioner was to file a Motion for Reconsideration
of the MTC Judgment which contained a defective Notice
of Hearing, failing as it did to set a date for hearing.
Under Sections 5 and 6 of Rule 15, the notice of hearing
shall be addressed to the parties concerned and shall
specify the time and date of the hearing of the motion;
no motion shall be acted upon by the court without proof
of service of the notice thereof, except when the court is
satisfied that the rights of the adverse party are not
affected. Unless the movant sets the time and place of
hearing, the court will be unable to determine whether
Page 84
Civil Procedure
ESGUERRA NOTES
the adverse party agrees or objects to the motion, and if
he objects, to hear him on his objection, since the rules
themselves do not fix any period within which he may
file his reply or opposition.
Not only did the defect render the motion for
reconsideration itself unworthy of consideration, it more
crucially failed to toll the period to appeal. A motion
without a notice of hearing is pro forma, a mere scrap of
paper that does not toll the period to appeal, and upon
the expiration of the 15-day period, the questioned
order or decision becomes final and executory.
That did not mean that petitioner was left
bereft of further remedies under our Rules. For one,
petitioner could have assailed the MTC’s denial of the
Motion for Reconsideration through a special civil action
for certiorari under Rule 65 alleging grave abuse of
discretion amounting to lack of jurisdiction on the part of
the MTC in denying the motion. If that remedy were
successful, the effect would have been to void the MTC’s
denial of the Motion for Reconsideration, thus allowing
petitioner to again pursue such motion as a means
towards the filing of a timely appeal.
Another remedy for the petitioner is found
under Rule 38, which governs petitions for relief from
judgment. Indeed, Section 2, Rule 38 finds specific
application in this case, as it provides that "[w]hen 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 [for relief from
denial of appeal] in such court and in the same case
praying that the appeal be given due course."36 Such
petition should be filed within sixty (60) days after the
petitioner learns of the judgment or final order, and not
more than six (6) months after such judgment or final
order was entered. The facts of this case indicate that
petitioner could have timely resorted to this remedy.
Exceptions
Motions which may be granted ex parte
An ex parte motion does not require that
parties be hard. An example is a motion to set
the case for pre-trial.
NOTE: A motion to dismiss, a motion for
judgment on the pleadings, and a summary
judgment are litigated motions.
Where adverse party had opportunity to oppose
LANTO v. DIMAPORO (1966)
FACTS: Resolution No. 7, adopted by the
Provincial Board of Lanao del Norte, reverted a previous
salary appropriation for the position of Assistant
Provincial Assessor to the general fund. In effect, that
position then held by petitioner was then abolished. He
sought relief to various government officials, including
the President but was disappointed. He then went to the
court seeking mandamus praying for annulment of the
resolution, payment of backwages, restatement of salary
appropriations as well as reinstatement.
Respondents moved to dismiss stating lack of cause of
action. Petitioner’s counsel moved to postpone the
hearing, but failed to appear. The court below granted
such motion and dismissed said petition. Hence this
appeal.
ISSUE: Whether the dismissal order issued without any
hearing on the motion to dismiss is void
NO. Petitioner was given the chance to adduce
his case, yet it is because of his constant absences that
he was unable to present his arguments. One good
reason for the statutory requirement of hearing on a
motion is to enable the suitors to adduce evidence to
support their claims. But here the Motion to Dismiss is
grounded on the lack of cause of action. Existence of a
cause of action or lack of it is determined by a reference
to the facts averred in the challenged pleading. The
question raised in the motion is purely one of law. In
this posture, oral arguments on the motion are reduced
to an unnecessary ceremony and should be overlooked.
The hearing for the Motion to Dismiss was set, yet the
petitioner failed to appear (only his counsel showed up).
Moreover, without any clear showing to the contrary,
there is a presumption of regularity within the actions of
the court with regard to entertaining motions. In the
case at bar, petitioner failed to show irregularity within
the courts.
VLASON ENTERPRISES CORP v. CA (1999)
FACTS: Duraproof sought to enforce its
preferred salvors lien by filing with the RTC a petition for
certiorari, prohibition and mandamus assailing the
actions of the Customs Officers in forfeiting the vessel
and cargo owned by Omega, which Duraproof contracted
to repair. It impleaded PPA and Med Line Philippines,
Inc. as respondents.
Duraproof amended its petition to include the
former District Collector, and other companies involved,
including Vlason Enterprises. In both Petitions,
Duraproof failed to allege anything pertaining to Vlason
Enterprises, or any prayer for relief against it.
Summonses for the amended Petition were
served. Duraproof moved several times to declare the
respondents it impleaded in default. Out of those
respondents, only the following were declared by RTC in
default: the Singkong Trading Co., Commissioner Mison,
M/V Star Ace and Omega. Duraproof filed an ex parte
Motion to present evidence against the defaulting
respondents, which was granted.
Duraproof alleged that Vlason Enterprises,
through constant intimidation and harassment in
utilizing the PPA Management of La Union, caused
Duraproof to incur heavy overhead expenses, causing
irreparable damages of about P3 Million worth of ship
tackles, rigs, and appurtenances including radar
antennas and apparatuses, which were taken
surreptitiously by persons working for Vlason Enterprises
or its agents.
The RTC ruled that in favor of Duraproof and
ordered Vlason to pay P3 Million worth of damages.
Duraproof and the other companies entered into a
compromise agreement, except Vlason. Duraproof
moved for the execution of judgment. The Motion was
granted and a Writ of Execution was issued.
Vlason Enterprises filed a Motion for
Reconsideration addressed to Duraproof’s counsel, Atty.
Concepcion, on the ground that it was allegedly not
impleaded as a defendant, served summons or declared
in default, and hence Duraproof may not present
evidence against it in default. Duraproof opposed the
Page 85
Civil Procedure
ESGUERRA NOTES
Motion, arguing that it was a mere scrap of paper due to
its defective notice of hearing.
RTC reversed its Decision, finding that there
never was issued an order of default against Vlason
Enterprises, so there could not have been any valid
default-judgment rendered against it.
The CA ruled that there was no need to serve
summons anew on Vlason Enterprises, since it had been
served summons when the second amended petition
was filed; and that Vlason Enterprisess Motion for
Reconsideration was defective and void, because it
contained no notice of hearing addressed to the counsel
of Duraproof in violation of Rule 16, Section 4 of the
Rules of Court.
ISSUE: Whether the motion for reconsideration
filed by Vlason was void for not containing a notice of
hearing to Duraproof’s counsel
HELD: NO. The Motion contained a notice of
hearing sent to Atty. Concepcion who had already died
and had since been substituted by Duraproof’s new
counsel, Atty. Desierto. Although Rule 15 of the Rules of
Court requires Vlason Enterprises to address and to
serve on the counsel of Duraproof the notice of hearing
of the Motion for Reconsideration, the case at bar,
however, is far from ideal. First, Vlason Enterprises was
not validly summoned and it did not participate in the
trial of the case in the lower court; thus, it was
understandable that Vlason Enterprises would not be
familiar with the parties and their counsels. Second,
Atty. Desierto entered his appearance only as
collaborating counsel, who is normally not entitled to
notices even from this Court. Third, Duraproof made no
manifestation on record that Atty. Concepcion was
already dead. Besides, it was Atty. Concepcion who
signed the Amended Petition, wherein Vlason
Enterprises was first impleaded as respondent and
served a copy thereof. Naturally, Vlason Enterprisess
attention was focused on this pleading, and it was within
its rights to assume that the signatory to such pleading
was the counsel for Duraproof.
The Court has consistently held that a motion
which does not meet the requirements of Sections 4 and
5 of Rule 15 of the Rules of Court is considered a
worthless piece of paper, which the clerk of court has no
right to receive and the trial court has no authority to
act upon. However, there are exceptions to the strict
application of this rule. These exceptions include: “(1)
where a rigid application will result in a manifest failure
or miscarriage of justice; especially if a party
successfully shows that the alleged defect in the
questioned final and executory judgment is not apparent
on its face or from the recitals contained therein.” The
present case falls under such exception since Vlason
Enterprises was not informed of any cause of action or
claim against it. All of a sudden, the vessels which
Vlason Enterprises used in its salvaging business were
levied upon and sold in execution to satisfy a supposed
judgment against it. To allow this to happen simply
because of a lapse in fulfilling the notice requirement
which, as already said, was satisfactorily explained
would be a manifest failure or miscarriage of justice.
Circumstances in the case at bar show that
Duraproof was not denied procedural due process, and
that the very purpose of a notice of hearing had been
served. On the day of the hearing, Atty. Desierto did not
object to the said Motion for lack of notice to him; in
fact, he was furnished in open court with a copy of the
motion and was granted by the trial court thirty days to
file his opposition to it. These circumstances clearly
justify a departure from the literal application of the
notice of hearing rule. In other cases, after the trial
court learns that a motion lacks such notice, the prompt
resetting of the hearing with due notice to all the parties
is held to have cured the defect.
Proof of service
No written motion set for hearing shall be acted upon by
the court without proof of service thereof. (Sec. 6, Rule
15)
Hearing of motion
General rule: All motions shall be scheduled for hearing
on Friday afternoons, or if Friday is a non-working day,
in the afternoon of the next working day
Exception: Motions requiring immediate action. (Sec. 7,
Rule 15)
Rule 16
Motion to Dismiss
Four general types of motion to dismiss under the
Rules
1. Motion to dismiss before answer
(Rule 16)
2. Motion to dismiss by plaintiff (Rule
17)
3. Motion to dismiss on demurrer to
evidence after plaintiff has rested his
case under Rule 33
4. Motion to dismiss appeal either in
RTC (Rule 41, Sec. 13), CA (Rule 50,
Sec. 1) or SC (Rule 56, Sec. 5)
Grounds (Sec. 1)
1. Lack of jurisdiction
a. That the court has no jurisdiction over the
person of the defending party.
i. The fundamental rule is that jurisdiction over a
defendant in a civil case is acquired either
through service of summons or through
voluntary appearance in court and
submission to its authority. If a defendant
has not been properly summoned, the court
acquires no jurisdiction over its person, and
a judgment rendered against it is null and
void. (Planters Development Bank v.
Chandumal, G.R. No. 195619, 5 September
2012)
ii. Where the action is in personam, and the
defendant is in the Philippines, service of
summons may be made through personal
service, that is, summons shall be served by
handing to the defendant in person a copy
thereof, or if he refuses to receive and sign
for it, by tendering it to him. If the
defendant cannot be personally served with
summons within a reasonable time, it is then
that substituted service may be made.
Page 86
Civil Procedure
ESGUERRA NOTES
Personal service of summons should and
always be the first option, and it is only
when the said summons cannot be served
within a reasonable time can the process
server resort to substituted service. (Id.)
iii. The court’s jurisdiction over a defendant is
founded on a valid service of summons.
Without a valid service, the court cannot
acquire jurisdiction over the defendant,
unless the defendant voluntarily submits to
it. The defendant must be properly
apprised of a pending action against him
and assured of the opportunity to present
his defenses to the suit. Proper service of
summons is used to protect one’s right to
due process. (Manotoc v. Court of Appeals,
G.R. No. 130974, 16 August 2006)
iv. In Manotoc v. Court of Appeals,2 the Supreme
Court detailed the requisites for a valid
substituted service of summons, summed
up as follows: (1) impossibility of prompt
personal service – the party relying on
substituted service or the sheriff must show
that the defendant cannot be served
promptly or there is impossibility of prompt
service; (2) specific details in the return –
the sheriff must describe in the Return of
Summons the facts and circumstances
surrounding the attempted personal
service; (3) a person of suitable age and
discretion – the sheriff must determine if
the person found in the alleged dwelling or
residence of defendant is of legal age, what
the recipient’s relationship with the
defendant is, and whether said person
comprehends the significance of the receipt
of the summons and his duty to
immediately deliver it to the defendant or
at least notify the defendant of said receipt
of summons, which matters must be clearly
and specifically described in the Return of
Summons; and (4) a competent person in
charge, who must have sufficient
knowledge to understand the obligation of
the defendant in the summons, its
importance, and the prejudicial effects
arising from inaction on the summons.
v. In Pascual v. Pascual,3 the substituted service
of summon made was invalidated due to
the sheriff’s failure to specify in the return
the necessary details of the failed attempts
to effect personal service which would
justify resort to substituted service of
summons.
vi. The defense of lack of jurisdiction over the
person of a party to a case is not one of
those defenses which are not deemed
waived under Section 1 of Rule 9, and thus,
it must be invoked when an answer or a
motion to dismiss is filed in order to
prevent a waiver of the defense. If the
2 Manotoc v. Court of Appeals, G.R. No. 130974, 16
August 2006.
3 G.R. No. 171916, 4 December 2009.
objection is not raised either in a motion to
dismiss or in the answer, the objection to
the jurisdiction over the person of the
plaintiff or the defendant is deemed
waived. (Boston Equity Resources, Inc. v.
Court of Appeals, G.R. No. 173946, 19 June
2013)
vii. The ground of "lack of jurisdiction over the
person, being subject to waiver, is a
personal defense which can only be
asserted by the party who can thereby
waive it by silence.(Id.)
b. That the court has no jurisdiction over the
subject matter of the claim.
viii. Under Section 1, Rule 9, Rules of Court, the
objection based on lack of jurisdiction over
the subject matter is not waived even if not
alleged in a motion to dismiss or the
answer. Lack of jurisdiction over the
subject matter can always be raised
anytime, even for the first time on appeal,
since jurisdictional issues cannot be waived
subject, however, to the principle of
estoppel by laches.
ELISEO BOTICANO V. MANUEL CHU, JR. (1987)
Facts: Eliseo Boticano (“Boticano”) filed a complaint for
damages against Manuel Chu (“Chu”) and Jamie Sigua
(“Sigua”) for allegedly causing damaged to Boticano’s
Bedford truck .Summonses were issued against Chua
and Sigua. However, the same was returned unserved
for Sigua.
Thereafter, Boticano moved to dismiss the case
against Sigua, and to declare in default Chu for failure to
file responsive pleadings within the reglementary period,
which motions were granted by the trial court and
allowed Boticano to present evidence ex parte.
The trial court ruled in favor of Boticano, and
ordered Chu to pay damages.
Aggrieved, Chu filed a Notice of Appeal and
an Urgent Motion for Extension of Time to file Record
on Appeal which was granted by the trial court on the
same date.
After the case was brought to the Court of
Appeals and the parties had filed their respective
briefs, said Appellate Court issued its decision on March
31, 1981, setting aside the appealed judgment directed
that the same be remanded to the court of origin and
that Chu be properly served with summons and a copy
of the complaint.
Issue: Whether or not the question of jurisdiction over
the person of the defendant can be raised for the first
time on appeal.
Held: No. In fact, one of the circumstances considered
by the Court as indicative of waiver by the defendant-
appellant of any alleged defect of jurisdiction over his
person arising from defective or even want of process,
is his failure to raise the question of jurisdiction in the
Court of First Instance and at the first opportunity. It
Page 87
Civil Procedure
ESGUERRA NOTES
has been held that upon general principles, defects in
jurisdiction arising from irregularities in the
commencement of the proceedings, defective process
or even absence of process may be waived by a failure
to make seasonable objections.
In this case, Chu voluntarily appeared thru
counsel in the trial court. He filed a Notice of Appeal,
Appeal Bond, Motion for Extension of Time to File
Record on Appeal, Record on Appeal, Motion for
Withdrawal of Appearance, Notice of Appearance and
Opposition to Plaintiff's Motion to Dismiss Appeal and
for Issuance of a Writ of Execution. Not only did he
submit pleadings and motions, but he likewise
appeared in person, thru counsel in the hearing held on
May 14, 1979 at 8:30 a.m. and orally argued in open
court on the pending incident.
Under Section 23, Rule 14 of the Rules of
Court, the defendant's voluntary appearance in the
action shall be equivalent to service. Thus, under this
principle, it has been consistently held by the Supreme
Court that the defect of summons is cured by the
voluntary appearance of the defendant.
2. Res judicata
DEL ROSARIO V. FAR EAST BANK
AND TRUST COMPANY (2007)
Facts: PDCP extended a loan agreement of USD265,000
and P2.5million to DATICOR. DATICOR paid 3million to
PDCP which latter applied to the interest, service fees
and other charges. There was still a balance of
10million. DATICOR filed a complaint against PDCP for
the violation of the Usury Law, annulment of contract
and damages (Civil Case No. 82-8088) but it was
dismissed by the CFI. IAC set aside the dismissal and
declared the stipulation of interest in the contract as
void. PDCP appealed to the SC (G.R. NO. 73198). In the
interim, PDCP assigned its interest to FEBTC . FEBTC
and DATICOR executed a Memorandum of Agreement
where DATICOR agreed to pay FEBTC P6.4million as full
settlement of the receivables. SC then affirmed the
decision of the IAC, and saying that the balance was
only 1.4 million. DATICOR filed a complaint for sum of
money against PDCP and FEBTC before RTC to recover
the excess payments of 5.3million (Civil Case No. 94-
1610). RTC ordered PDCP to pay DATICOR. The case
against FEBTC was dismissed for lack of cause of action
saying that the MOA between DATICOR and FEBTC was
not a subject of the SC decision. From the trial court's
decision, petitioners and respondent PDCP appealed to
the Court of Appeals (CA). The appeal was docketed as
CA-G.R. CV No. 50591. On May 22, 1998, the CA
rendered a decision13 in CA-G.R. CV No. 50591, holding
that petitioners' outstanding obligation, which this Court
had determined in G.R. No. 73198 to be P1.4 million,
could not be increased or decreased by any act of the
creditor PDCP. FEBTC later filed a 3rd party complaint
against PDCP on the ground that it received a
consideration when it assigned the receivables. PDCP
went on to contend that since the final and executory
decision in CA-G.R. CV No. 50591 had held that
DATICOR has no cause of action against it for the refund
of any part of the excess payment, FEBTC can no longer
re-litigate the same issue.
Issue: Whether the action should be dismissed on the
ground of res judicata.
Held: YES. There is no doubt that the judgment on
appeal relative to the first civil case was a final
judgment. Not only did it dispose of the case on the
merits, it also became executory as a consequence of
the denial of FEBTC’s motion for reconsideration and
appeal. In fact, authorities tend to widen rather than
restrict the doctrine of res judicata on the ground that
public as well as private interest demands the ending of
suits by requiring the parties to sue once and for all in
the same case all the special proceedings and remedies
to which they are entitled.
Section 47 of Rule 39 lays down two main
rules. Section 49(b) enunciates the first rule of res
judicata known as “bar by prior judgment” or “estoppel
by judgment,” which states that the judgment or decree
of a court of competent jurisdiction on the merits
concludes the parties and their privies to the litigation
and constitutes a bar to a new action or suit involving
the same cause of action either before the same or any
other tribunal.
Stated otherwise, “bar by former judgment”
makes the judgment rendered in the first case an
absolute bar to the subsequent action since that
judgment is conclusive not only as to the matters
offered and received to sustain it but also as to any
other matter which might have been offered for that
purpose and which could have been adjudged therein. It
is in this concept that the term res judicata is more
commonly and generally used as a ground for a motion
to dismiss in civil cases.
The second rule of res judicata embodied in
Section 47(c), Rule 39 is “conclusiveness of
judgment.” This rule provides that any right, fact, or
matter in issue directly adjudicated or necessarily
involved in the determination of an action before a
competent court in which a judgment or decree is
rendered on the merits is conclusively settled by the
judgment therein and cannot again be litigated between
the parties and their privies whether or not the claim or
demand, purpose, or subject matter of the two suits is
the same. It refers to a situation where the judgment in
the prior action operates as an estoppel only as to the
matters actually determined or which were necessarily
included therein.
The case at bar satisfies the four essential
requisites of “bar by prior judgment,” viz:
a) finality of the former judgment;
b) the court which rendered it had jurisdiction over
the subject matter and the parties;
c) it must be a judgment on the merits; and
d) there must be, between the first and second
actions, identity of parties, subject matter and
causes of action
Page 88
Civil Procedure
ESGUERRA NOTES
3. Failure to state cause of action
HEIRS OF ANTONIO SANTOS VS. HEIRS OF
CRISPULO BERAMO (2010)
Facts: Respondents filed a complaint for reconveyance
against spouses borreros and NORCAIC. petitioners heirs
of Antonio Santos and Luisa Esguerra Santos filed a
Motion to Dismiss3 on the ground that the Amended
Complaint stated no cause of action against them. They
pointed out that respondents were unable to
substantiate their claim of ownership over the subject
property, since they failed to present any documentary
proof which established prima facie that the subject
parcels of land were owned by their predecessor-in-
interest. Moreover, respondents did not annex
documents to the Amended Complaint evincing their
right over the subject property. Petitioners also asserted
that respondents failed to substantiate their claim of
fraud on the part of defendants spouses Antonio and
Luisa Santos; hence, respondents were unable to
establish a right that was allegedly violated by the
defendants Spouses Santos.
Held: The contention lacks merit.
When the ground for dismissal is that the complaint
states no cause of action under Section 1 (g), Rule 16 of
the Rules of Court, such fact must be determined from
the allegations of the complaint. In a motion to dismiss,
a defendant hypothetically admits the truth of the
material allegations of the plaintiff’s complaint15 for the
purpose of resolving the motion. The general rule is that
the allegations in a complaint are sufficient to constitute
a cause of action against the defendant, if, admitting the
facts alleged, the court can render a valid judgment
upon the same in accordance with the prayer therein. To
sustain a motion to dismiss for lack of cause of action,
the complaint must show that the claim for relief does
not exist.
From the amended complaint, it appears that since
1892, private respondents' predecessor, Don Juan
Beramo, was in open, continuous, exclusive and
notorious possession and occupation of the subject
property, an agricultural land of the public domain; that
the subject property was merely entrusted by private
respondents' predecessor, Don Juan Beramo, to Cornelio
Borreros, from whom petitioners derived their title; and
that the titling of the subject property and transfers
thereof were simulated and fraudulent. These averments
indicate that private respondents are the rightful owners
of the subject property but the same was wrongfully
registered by petitioners' predecessors, the Borreros
spouses. Such averments make out a case for
reconveyance.
Contrary to the contention of petitioners, respondents
did not have to present or append proof of their
allegations in the complaint to establish a sufficient
cause of action for reivindicacion and/or reconveyance in
their Amended Complaint. The Court has held that in
determining whether the allegations of a complaint are
sufficient to support a cause of action, it must be borne
in mind that the complaint does not have to establish or
allege facts proving the existence of a cause of action at
the outset; this will have to be done at the trial on the
merits of the case.
HALIMAO v. Villanueva
(1996)
Facts: Reynaldo Halimao wrote a letter to the Chief
Justice, alleging that respondents, without lawful
authority and armed with armalites and handguns,
forcibly entered the Oo Kian Tiok Compound in Cainta,
Rizal, of which complainant was caretaker. Complainant
prayed that an investigation be conducted and that
respondents be disbarred.
Respondents Villanueva et. al. filed a
comment, claiming that the complaint is a mere
duplication of the complaint filed by Danilo Hernandez in
Administrative Case No. 3835, which this Court had
already dismissed for lack of merit. They pointed out
that both complaints arose from the same incident and
the same acts complained of and that Danilo Hernandez,
who filed the prior case, is the same person whose
affidavit is attached to the complaint in this case.
Co-respondent Ferrer claimed that the two
complaints were filed for the purpose of harassing him
because he was the principal lawyer of Atty. Daniel
Villanueva in two cases before the SEC.
This case was referred to the IBP, whose Board
of Governors dismissed the case. The Investigating
Commissioner found that the complaint is barred by the
decision in Administrative Case No. 3835 which involved
the same incident. The complaints in the two cases were
similarly worded.
Complainant filed a motion for reconsideration
of the resolution of the IBP Board of Governors, alleging
that the commissioner erroneously dismissed the
complaint since the respondents are deemed to have
admitted the allegations of the complaint against them
by filing a motion to dismiss
Issue: Whether the respondents hypothetically
admitted petitioner’s allegations by filing a motion to
dismiss
Held: NO. The rule that a motion to dismiss is to be
considered as a hypothetical admission of the facts
alleged in the complaint applies more particularly to
cases in which the ground for dismissal is the failure of
the complaint to state a cause of action. This rule does
not apply to other grounds for dismissal. In such cases,
the hypothetical admission is limited to the facts alleged
in the complaint which relate to and are necessary for
the resolution of these grounds as preliminary matters
involving substantive or procedural laws, but not to the
other facts of the case.
Two motions for reconsideration of this resolution were
filed by the complainant therein, both of which were
denied. While the complainant (Danilo Hernandez) in
Administrative Case No. 3835 is different from the
complainant in the present case, the fact is that they
have an identity of interest, as the Investigating
Commissioner ruled. Both complainants were employed
at the Oo Kian Tiok Compound at the time of the alleged
incident. Both complain of the same act allegedly
committed by respondents. The resolution of this Court
in Administrative Case No. 3835 is thus conclusive in
this case, it appearing that the complaint in this case is
nothing but a duplication of the complaint of Danilo
Hernandez in the prior case.
Page 89
Civil Procedure
ESGUERRA NOTES
TAN v. CA (1998)
Facts: Tan Keh sold two parcels of land to Tan Kiat, but
failed to effect the immediate transfer of the properties
since Tan Kiat was still a foreign national at the time of
the sale. Nevertheless Tan Keh secured the sale by
executing a lease contract of 40 years in favor of Tan
Kiat.
Four years later, Tan Keh sold the properties to his
brother, Tan. Tan knowingly held the property in trust
for Tan Kiat until the latter acquires Filipino citizenship.
The new TCTs were issued in the name of Tan as trustee
of Tan Kiat. Tank Keh and Tan executed another lease
contract to secure the conveyance of the property to Tan
Kiat. Tan Kiat never paid rental and no demand for
rentals was made on him.
Tan Died. Tan Kiat thereafter demanded for the
conveyance of the property as he was finally a
naturalized Filipino. Petitioners failed to convey them.
Tan Kiat filed a complaint for recovery of property.
Petitioners moved for its dismissal based, among others,
on failure to state a cause of action. RTC dismissed
complaint acceding to all grounds set forth by the
petitioners. CA reversed and ordered that case be
remanded for further proceedings.
Issue: Whether the complaint stated no cause of action.
Held: YES. Averments in the complaint are deemed hypothetically
admitted upon filing of a Motion to Dismiss grounded on failure to
state a cause of action. But there are also limitations to such rule.
In the case at bar, the “trust theory” claimed by Tan
Kiat does not hold water. The lease contract as
evidenced by document attached with the Motion to
Dismiss and admitted by Tan Kiat already belies the
latter’s claim of ownership. There is an apparent lessor-
lessee relationship. Ownership of Tan is further
supported by the annotated mortgage on the back of the
TCT which Tan executed in favor of a bank so as to
secure a loan. In truth, By the very nature of a
mortgage contract, Tan could not have mortgage the
property if he was not the real owner.
Having failed to prove the trust relationship, it may be
gleaned from the allegations that the transaction was a
double sale instead. Since Tan had the TCT in his name,
he is presumed to have the better right.
4. Statute of Frauds
ASIA PRODUCTION CO., INC. V. PANO (1992)
Facts: Respondents Hua and Dy, owners of a building
constructed on a lot leased from Lucio San Andres and
located in Bulacan, sold the building to the petitioners
for P170,000.00, with the assurance that respondents
will also assign to them the contract of lease over the
land. The above agreement and promise were not
reduced to writing.
Private respondents undertook to deliver the
deed of conveyance over the building and the deed of
assignment of the contract of lease within sixty (60)
days upon the P20,000 downpayment. The balance was
to be paid in monthly installments. Petitioners paid the
downpayment and issued eight (8) postdated checks for
the payment of the eight (8) monthly installments.
Petitioners constructed a weaving factory on
the leased lot. Unfortunately, private respondents,
despite extensions granted, failed to comply with their
undertaking to execute the deed of sale and to assign
the contract despite the fact that they were able to
encash the checks in the total amount of P30,000.
Worse, the lot owner made it plain to petitioners that he
was unwilling to give consent to the assignment of the
lease unless petitioners agreed to certain onerous terms,
such as an increase in rental, or the purchase of the
land at a very unconscionable price.
Petitioners removed all their property,
machinery and equipment from the building, vacated the
same and returned its possession to private
respondents. They demanded from the latter the return
of their partial payment for the purchase price of the
building in the total sum of P50,000, which respondents
refused to return. Petitioner filed a complaint for
recovery and of actual, moral and exemplary damages
and attorney's fees with the CFI.
Hua was declared in default. Dy filed a motion
to dismiss the complaint on the ground that the claim on
which the action is based — an alleged purchase of a
building which is not evidenced by any writing — cannot
be proved by parol evidence since Article 1356 in
relation to Article 1358 of the Civil Code requires that it
should be in writing. The RTC granted the motion to
dismiss on the ground that the complaint is barred by
the Statute of Frauds. Their motion for reconsideration
was denied for the reason that the oral contract in this
case was not removed from the operation of the Statute
of Frauds because there was no full or complete
performance by the petitioners of the contract as
required by jurisprudence.
Issue: Whether petitioner’s action is barred by the
Statute of Frauds.
Held: NO. Article 1403 of the Civil Code declares the
following contracts, among others, as unenforceable,
unless they are ratified: The purpose of the statute is to
prevent fraud and perjury in the enforcement of
obligations depending for their evidence on the
unassisted memory of witnesses by requiring certain
enumerated contracts and transactions to be evidenced
by a writing signed by the party to be charged. It was
not designed to further or perpetuate fraud.
Under Article 1403, the contracts concerned
are simply "unenforceable" and the requirement that
they—or some note or memorandum thereof — be in
writing refers only to the manner they are to be proved.
It goes without saying then, that the statute will apply
only to executory rather than executed contracts. Partial
execution is even enough to bar the application of the
statute.
The instant case is not for specific performance
of the agreement to sell the building and to assign the
leasehold right, but to recover the partial payment for
the agreed purchase price of the building. By their
motion to dismiss, private respondents theoretically or
hypothetically admitted the truth of the allegations of
fact in the complaint. The action is definitely not one for
specific performance; hence the Statute of Frauds does
not apply. And even if it were for specific performance,
partial execution thereof by petitioners effectively bars
the private respondents from invoking it.
Page 90
 Civil Procedure
ESGUERRA NOTES
5. Condition precedent
SUNVILLE TIMBER PRODUCTS, INC. V. ABAD
(1992)
Facts: Sunville Timber Products (Sunville) was granted
a Timber License Agreement (TLA), authorizing it to
cut, remove and utilize timber within the concession
area covering 29,500 hectares of forest land in
Zamboanga del Sur, for a period of 10 years.
The respondents filed a petition with the
DENR for the cancellation of the TLA and with the RTC
for injunction in a civil case, both on the ground of
serious violations of its conditions and the provisions of
forestry laws.
Sunville moved to dismiss this case on the
ground that the plaintiffs had not yet exhausted
administrative remedies, among others. The motion to
dismiss and the motion for reconsideration were
denied.
The CA sustained the RTC’s decision. CA held
that the doctrine of exhaustion of administrative
remedies was not without exception and pointed to the
several instances approved by this Court where it could
be dispensed with. The applicable exception was the
urgent need for judicial intervention because City
Council of Pagadian requested the Bureau of Forest
Development to reserve 1,000 hectares in Lison Valley.
This request remained unacted upon. Instead a TLA
covering 29,500 hectares, including the area
requested, was given to petitioner Sunville. Due to the
erosion caused by Sunville’s logging operations heavy
floods have occurred in areas adjoining the logging
concessions. Thus, it is urgent that indiscriminate
logging be stopped. Sunville contends that the doctrine
of exhaustion of administrative remedies was not
correctly applied
Issue: Whether the application of the doctrine of
exhaustion of administrative remedies is correct
Held: NO. The doctrine of exhaustion of
administrative remedies calls for resort first to the
appropriate administrative authorities in the resolution
of a controversy falling under their jurisdiction before
the same may be elevated to the courts of justice for
review.
There is the explicit language of pertinent
laws vesting in the DENR the power and function "to
regulate the development, disposition, extraction,
exploration and use of the country's forests" and "to
exercise exclusive jurisdiction" in the "management
and disposition of all lands of the public domain," and
in the Forest Management Bureau the responsibility for
the enforcement of the forestry laws aid regulations
here claimed to have been violated. This
comprehensive conferment clearly implies at the very
least that the DENR should be allowed to rule in the
first instance on any controversy coming under its
express powers before the courts of justice may
intervene.
The charge involves factual issues calling for
the presentation of supporting evidence. Such evidence
is best evaluated first by the administrative authorities,
employing their specialized knowledge of the agreement
and the rules allegedly violated, before the courts may
step in to exercise their powers of review.
Who files
The defendant may file a motion to dismiss based
on any of the grounds stated under Section 1, Rule 16,
to wit:
Section 1. Grounds. — Within the time for but
before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may
be made on any of the following grounds:
(a) That the court has no jurisdiction over the
person of the defending party;
(b) That the court has no jurisdiction over the
subject matter of the claim;
(c) That venue is improperly laid;
(d) That the plaintiff has no legal capacity to sue;
(e) That there is another action pending between
the same parties for the same cause;
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(g) That the pleading asserting the claim states no
cause of action;
(h) That the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded
is enforceable under the provisions of the
statute of frauds; and
(j) That a condition precedent for filing the claim
has not been complied with.
How pleaded
a. Period
A motion to dismiss may be filed
within the time for but before filing
the answer to the complaint or
pleading asserting a claim. (Sec. 1,
Rule 16)
b. As affirmative defense
Section 6, Rule 16. 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.
The counterclaim which may be
prosecuted in the same or separate action
refers to permissive counterclaim
Hearing and resolution
a. Hearing
At the hearing of the motion, the parties
shall submit
(1) their arguments on the
questions of law and
Page 91
Civil Procedure
ESGUERRA NOTES
(2) their evidence on the
questions of fact involved except
those not available at that time.
NOTE: 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. (Sec. 2,
Rule 16)
b. Resolution of motion
After the hearing, the court may
(1) dismiss the action or claim,
(2) deny the motion, or
(3) order the amendment of the
pleading.
The court shall not defer the
resolution of the motion for the reason that
the ground relied upon is not indubitable.
In every case, the resolution shall
state clearly and distinctly the reasons
therefor. (Sec. 3, Rule 6)
LUISTRO V. COURT OF APPEALS AND FIRST GAS
POWER CORPORATION (2009)
Facts: Respondent First Gas Power Corporation entered
into an agreement with Meralco and the National Power
Corporation to design, construct and energize an electric
power transmission line. This undertaking entailed the
acquisition of easements of right-of-way over lands
located along the route of the transmission line,
including that of petitioner.
Respondent entered into a Contract of
Easement of Right-of-Way (contract) with petitioner. It
then commenced the construction of the transmission
line. Subsequently, petitioner’s counsel wrote a letter to
respondent, asking for a temporary stoppage of all kinds
of work within the vicinity of petitioner’s residential
house since the transmission line being constructed
above it would endanger the life and health of the
persons in the vicinity.
Since the grievance remained unresolved,
petitioner filed a complaint for Rescission/ Amendment
of Contract of Easement against respondent, alleging
that by means of fraud and machinations, respondent
was able to convince him to enter into the contract.
Thus, while his house was supposed to be 20 to 25
meters away from the transmission line, it turned out
that his house was only 7.23 meters directly under the
transmission line.
Respondent filed a Motion to Dismiss on the
ground that petitioner failed to state a cause of action in
his complaint. The trial court denied the motion to
dismiss. Upon appeal, the Court of Appeals reversed
and ordered the dismissal of the complaint for failure to
state a cause of action. The Court of Appeals ruled that
the trial court failed to comply with Section 3, Rule 16 of
the 1997 Rules of Procedure which requires that the
resolution shall state clearly and distinctly the reasons
therefor.
Issue: Whether or not the trial court’s Order failed to
comply with Section 3, Rule 16 of the 1997 Rules of
Procedure.
Held: Section 3, Rule 16 of the 1997 Rules of Procedure
prescribes that the resolution of the motion to dismiss
shall clearly and distinctly declare the reasons
therefor. The directive proscribes the common practice
of perfunctorily dismissing the motion for lack of merit
which can often pose difficulty and misunderstanding on
the part of the aggrieved party in taking recourse
therefrom and likewise on the higher court called upon
to resolve the same. In this case, the trial court merely
stated:
Examining the allegations in the complaint the
Court finds that a cause of action sufficiently exist[s]
against defendants.
The trial court did not explain why a sufficient
cause of action existed in this case. The trial court
merely cited Article 19 of the Civil Code which provides
that [e]very person must, in the exercise of his rights
and in the performance of his duties, act with justice,
give everyone his due, and observe honesty and good
faith. The disposition of the trial court clearly fell short of
the requirement set forth under Section 3, Rule 16 of
the 1997 Rules of Civil Procedure.
The Court also sustained the dismissal of the
complaint. The complaint was based on the alleged
breach of the Contract and violation of the undertaking
that petitioners house was supposed to be 20 to 25
meters away from the transmission line. But as pointed
out by the Court of Appeals, there was no such
undertaking in the contract. The contract only granted
respondent an easement on portions of petitioner’s
property, as indicated in the sketch plan, for the
installation and maintenance of poles, towers and
wires. Therefore, the alleged right of petitioner, which
respondent supposed to have violated, did not exist in
the contract.
MUNICIPALITY OF BIÑAN, LAGUNA V. COURT OF
APPEALS AND JESUS GARCIA (1993)
Facts: Petitioner filed a civil case for unlawful detainer
against private in the Municipal Trial Court (MTC) of
Biñan, alleging that it was no longer amenable to the
renewal of its lease contract with respondent.
Respondent filed an answer contending that the contract
of lease for the original period of 25 years had not yet
expired, and assuming that it expired, he had exercised
his option to stay in the premises as expressly provided
in said contract.
Upon petitioner’s filing of a reply, respondent
filed a “Motion for Preliminary Hearing as if a Motion to
Dismiss Has Been Filed” (motion for preliminary hearing)
on the ground that the complaint states no cause of
action, reiterating its arguments in the answer.
The MTC rendered judgment ordering
respondent to vacate the premises subject of the
ejectment case. Respondent filed an appeal to the
Regional Trial Court (RTC), contending that the
judgment by the MTC was irregularly and improvidently
issued when said court failed to resolve the motion for
preliminary hearing before rendering judgment on the
merits. Petitioner filed a motion for execution pending
appeal with the RTC, which motion the RTC granted.
Thus, respondent filed with the Court of
Appeals (CA) a petition for certiorari assailing the RTC’s
order of execution pending appeal. The CA invalidated
Page 92
Civil Procedure
ESGUERRA NOTES
said order for failure of the petitioner to comply with the
mandatory proof of notice of the motion for execution to
the adverse party. However, the CA likewise annulled
the judgment of the MTC which judgment is pending
before the RTC.
Hence the instant petition for certiorari
contending that the CA overstepped its bounds in
annulling the decision of the MTC even if said decision
was not an issue raised by respondent, and which
decision was in fact pending on appeal with the RTC.
Issue: Whether or not the Court of Appeals had
jurisdiction to annul the decision of the MTC.
Held: Respondent Court of Appeals has no
jurisdiction in a certiorari proceeding involving an
incident in a case to rule on the merits of the main case
itself which was not on appeal before it. The validity of
the order of the RTC authorizing the issuance of a writ of
execution during the pendency of the appeal therein was
the sole issue raised in the petition for certiorari. Even
assuming that the validity of the judgment rendered by
the MTC was squarely raised and before the CA, the
same cannot be considered a proper subject of a special
civil action for certiorari under Rule 65 which is limited
only to challenges against errors of jurisdiction. The
jurisdiction of the MTC over the ejectment case filed by
the petitioner against private respondent is not disputed.
The error, if any was committed by the MTC, was at
most one of judgment or procedure correctible by
ordinary appeal.
Neither can it be said that the MTC committed
a grave abuse of discretion or exceeded its jurisdiction
when it failed to conduct a preliminary hearing before
summarily rendering judgment on the merits of the
case. Contrary to the claim of respondent, the
preliminary hearing permitted under Section 5 (now
Section 6) of Rule 16 is not mandatory even when the
same is prayed for. It rests largely on the sound
discretion of the trial court. The use of the word "may”
shows that such a hearing is not a matter of right
demandable from the MTC.
Moreover, a preliminary hearing on an
affirmative defense for failure to state a cause of action
is not necessary. As ruled in Heirs of Juliana Clavano
vs. Genato, et al.:
…[R]espondent Judge committed an error in
conducting a preliminary hearing on the private
respondent's affirmative defenses. It is a well-settled
rule that in a motion to dismiss based on the ground
that the complaint fails to state a cause of action, the
question submitted to the court for determination is the
sufficiency of the allegations in the complaint itself.
Whether those allegations are true or not is beside the
point, for their truth is hypothetically admitted by the
motion. The issue rather is: admitting them to be true,
may the court render a valid judgment in accordance
with the prayer of the complaint? Stated otherwise, the
sufficiency of the cause of action must appear on the
face of the complaint in order to sustain a dismissal on
this ground. No extraneous matter may be considered
nor facts not alleged, which would require evidence and
therefore, must be raised as defenses and await the
trial. In other words, to determine sufficiency of the
cause of action, only the facts alleged in the complaint,
and no other should be considered.
The respondent Judge departed from this rule
in conducting a hearing and in receiving evidence in
support of private respondent's affirmative defense,
that is, lack of cause of action.
Effects of dismissal
An order granting a motion to dismiss based
on the following shall bar the refiling of the
same action or claim:
(1) That the cause of action is barred by a
prior judgment [res judicata] or by the
statute of limitations [prescription];
(2) That the claim or demand set forth in
the plaintiff’s pleading has been paid,
waived, abandoned, or otherwise
extinguished; and
(3) That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds;
a. Appealable; refiling barred if motion
based on Sec. 1(f), (h) and (i)
Dismissal based on the above grounds is
appealable. (Sec. 5, Rule 16)
Sec. 5. Effect of dismissal.
Subject to the right of appeal, an order
granting a motion to dismiss based on
paragraphs (f), (h) and (i) of Section 1 hereof
shall bar the refiling of the same action or
claim.
b. On periods for pleading
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, 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. (Sec. 4, Rule 16)
c. On other grounds and omnibus motion
rule
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. (Sec.
8, Rule 15)
Exceptions
The court shall dismiss the claim when it
appears from the pleadings or the evidence on
record that –
(1) the court has no jurisdiction over the
subject matter,
(2) there is another action pending between
the same parties for the same cause, or
that
(3) the action is barred by a prior judgment
or barred by the statute of limitations.
(Sec. 1, Rule 9)
Page 93
Civil Procedure
ESGUERRA NOTES
Remedies
If motion granted – appeal or refile complaint
If motion denied – file answer, unless without
jurisdiction, in which case, Rule 65 petition
Effects of Action on Remedy
Motion to Dismiss
Order granting motion Re-file the complaint.
to dismiss is a final
order (without
prejudice)
Order granting motion Appeal.
to dismiss (with
prejudice)
Order denying the File answer and proceed
motion to dismiss is with the trial. If there is
interlocutory grave abuse of discretion
amounting to lack or excess
of jurisdiction, certiorari or
prohibition under Rule 65
may lie.
NPC v. CA (1990)
Facts: FINE Chemicals, a company engaged in the
manufacturing of plastics applied with the NPC for direct
power connection. Meralco assured that it had the
capabilities to serve FINE but that to allow direct
connections will be detrimental to other consumers since
they’ll shoulder the additional subsidy burden.
However, NPC went on with the plan anyway
and provided its services with FINE. Because of this,
Meralco filed a petition for Prohibition, Mandamus and
Damages with Preliminary Injunction with the RTC. FINE
countered saying that Injuction would be moot since the
service has already been consummated and the facilities
have been installed and are functional. Meralco
amended its petition by incorporating an application for
a writ of preliminary mandatory injunction. FINE moved
to dismiss the amended petition on the ground of
insufficiency of the allegations in the petition to plead a
cause of action. The trial judge allowed Meralco to
adduce evidence over FINE’s objection. FINE then filed a
manifestation adopting its Motion to Dismiss but was
denied.
Undaunted, FINE proceeded directly to the CA
and filed a petition for Certiorari, Prohibition and
Mandamus. CA dismissed. Hence this petition.
Issue: Whether Meralco’s petition in the lower court
should be dismissed
Held: YES. As a general rule, whenever a motion is
denied, the petitioner should file an answer, go to
trial and if the decision is adverse, reiterate the
issue on appeal. However, if the court who denies
the motion acts without or in excess of jurisdiction
or with grave abuse of discretion the proper move
is to proceed to a higher court for relief. It would be
unfair to require the defendant to undergo the ordeal
and expense of trial under such circumstances as the
remedy of appeal would not be plain and adequate.
More importantly, petitioner’s motion to
dismiss is based on the ground that the complaint states
no cause of action, so that there is no need for a full
blown trial. It is also important to note that the courts
will strive to settle the controversy in a single
proceeding leaving no root or branch to bear the seeds
of future litigation.
Rule 17
Dismissal of Actions
1997 Rules on Civil Procedure, Rule 17
Section 1. Dismissal upon notice by plaintiff. — A
complaint may be dismissed by the plaintiff by filing a
notice of dismissal at any time before service of the
answer or of a motion for summary judgment. Upon
such notice being filed, the court shall issue an order
confirming the dismissal. Unless otherwise stated in the
notice, the dismissal is without prejudice, except that a
notice operates as an adjudication upon the merits when
filed by a plaintiff who has once dismissed in a
competent court an action based on or including the
same claim.
O.B. JOVENIR CONSTRUCTION AND
DEVELOPMENT CORP. VS.
MACAMIR REALTY AND CA (2006)
Facts: Respondent Macamir Realty, and spouses
Miranda filed a complaint seeking the annulment of
certain agreements it had with petitioner O.B. Jovenir
Construction and Dev’t Corp (“Jovenir Corp), Oscar
Jovenir, and Gregorio Liongson after it discovered that
Jovenir had misrepresented itself as a legitimate
contractor.
Ten days after the filing of the complaint,
Macamir filed a Motion to Withdraw Compliant, alleging
that its counsel discovered a supposed technical defect
(lack of authority of Spouses Miranda to sue on behalf of
Macamir Corp) in the compliant. Thus, respondent
prayed that they be allowed to withdraw the compliant
without prejudice.
Subsequently, Macamir filed a similar
complaint (2nd Complaint) against the same parties. This
time, however, a Board Resolution authorizing the
spouses Miranda to file a complaint on behalf of Macamir
Corp was attached to the complaint.
Eleven days after the filing of the Motion to
Withdraw and seven days after the filing of the second
complaint, the Makati RTC granted Macamir’s Motion to
Withdraw. Meanwhile, Jovenir Corp filed a motion to
dismiss the 2nd complaint on the grounds of forum-
shopping. Said motion was, however, denied. The court
declared that at the time the Motion to Withdraw
Complaint was filed, none of the defendants had filed
any answer or any responsive pleading. Thus, it was
then within respondents right to cause the dismissal of
the complaint without having to await action of the court
on their motion. This Order was affirmed by the Court of
Appeals
Issue: Does Macamir have to wait for an order from the
court granting its Motion to Withdraw its first complaint
before it can file its second compliant?
Page 94
Civil Procedure
ESGUERRA NOTES
Held: No. We find no error on the part of the lower
courts since the denial of the motion to dismiss is wholly
in accord with the Rules of Civil Procedure.
Section 1, Rule 17 of the 1964 Rules of Civil Procedure
stated:
Dismissal by the plaintiff An action may be
dismissed by the plaintiff without order of
court by filing a notice of dismissal at any
time before service of the answer or of a
motion for summary judgment. 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. A class suit shall
not be dismissed or compromised without the
approval of the court.
Indubitably, the provision ordained the
dismissal of the complaint by the plaintiff as a matter of
right at any time before service of the answer. The
plaintiff was accorded the right to dismiss the complaint
without the necessity of alleging in the notice of
dismissal any ground nor of making any reservation.
In Go v. Cruz, the Court, through Chief Justice
Narvasa, has recognized that where the dismissal of an
action rests exclusively on the will of a plaintiff or
claimant, to prevent which the defending party and even
the court itself is powerless, requiring in fact no action
whatever on the part of the court except the acceptance
and recording of the causative document. The facts in
that case are well worth considering. Therein, the notice
of dismissal was filed by the plaintiff on 12 November
1981. Respondent filed his answer three days earlier, or
on 9 November, but plaintiff was served a copy of the
answer by registered mail only on 16 November.
Notwithstanding the fact that the answer was filed with
the trial court three days prior to the filing of the notice
of dismissal, the Court still affirmed the dismissal sought
by the plaintiff. The Court declared that the right of the
plaintiff to cause the dismissal of the complaint by mere
notice is lost not by the filing of the answer with the trial
court, but upon the actual service to the plaintiff of the
answer.
The Court further ruled that [plaintiffs] notice
ipso facto brought about the dismissal of the action then
pending in the Manila Court, without need of any order
or other action by the Presiding Judge. The dismissal
was effected without regard to whatever reasons or
motives [plaintiff] might have had for bringing it about,
and was, as the same Section 1, Rule 17 points out,
without prejudice, the contrary not being otherwise
stated in the notice and it being the first time the action
was being so dismissed.
It is quite clear that under Section 1, Rule 17
of the old Rules, the dismissal contemplated therein
could be accomplished by the plaintiff through mere
notice of dismissal, and not through motion subject to
approval by the Court. Dismissal is ipso facto upon
notice, and without prejudice unless otherwise stated in
the notice. It is due to these considerations that the
petition should be denied.
Evidently, respondents had the right to dismiss
their complaint by mere notice on 13 February 1997,
since as of even date, petitioners had not yet served
their answer on respondents. The Motion to Withdraw
Complaint makes clear respondents desire to withdraw
the complaint without prejudice. That respondents
resorted to a motion to effect what they could have
instead by mere notice may be indicative of a certain
degree of ignorance of procedural rules on the part of
respondents counsel. Yet such error, if it could be called
as such, should hardly be of fatal consequence.
Petitioners posit that the remedy of filing a notice of
dismissal is not exclusive, respondents having the option
of securing the courts approval to the dismissal. On the
contrary, the trial court has no discretion or option
to deny the motion, since dismissal by the plaintiff
under Section 1, Rule 17 is guaranteed as a matter
of right to the plaintiffs. Even if the motion cites
the most ridiculous of grounds for dismissal, the
trial court has no choice but to consider the
complaint as dismissed, since the plaintiff may opt
for such dismissal as a matter of right, regardless
of ground.
1997 Rules on Civil Procedure, Rule 17
Section 2. Dismissal upon motion of plaintiff. —
Except as provided in the preceding section, a complaint
shall not be dismissed at the plaintiff's instance save
upon approval of the court and upon such terms and
conditions as the court deems proper. If a counterclaim
has been pleaded by a defendant prior to the service
upon him of the 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
manifests his preference to have his counterclaim
resolved in the same action. Unless otherwise specified
in the order, a dismissal under this paragraph shall be
without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court.
ANTONIO, JR. VS. MORALES (2007)
Facts: E.M Morales & Associates (“EMMA”) filed a
complaint for a sum of money against Pablo Antonio (the
“petitioners”), to which petitioner filed a Motion to
Dismiss on two grounds: (a) respondent’s failure to
attach a certificate of non-forum shopping to its
complaint; and (b) respondent’s lack of legal capacity to
sure, since it is a sole proprietorship.
Subsequently, Engr. Morales filed an Amended
Complaint, attaching thereto a certificate of non-forum
shopping. RTC admitted the amended complaint and
denied petitioners’ Motion to Dismiss. Petitioner, thus,
filed a Motion for Reconsideration, and eventually a
Petition for Certiorari with the Court of Appeals, which
remained pending for more than six years.
During the pendency of the Petition for
Certiorari, respondent Morales filed with the RTC a
Motion to Dismiss his complaint. The RTC granted said
Motion and dismissed the case without prejudice.
Thereafter, respondent filed a manifestation with the
Court of Appeals, informing the CA that the case was
dismissed without prejudice.
Page 95
Civil Procedure
ESGUERRA NOTES
Meanwhile, Morales filed a new complaint for
the collection of sum of money against petitioner. This
prompted the petitioner to file a Motion to Dismiss on
the ground of prescription. Petitioner maintains that
from August 14, 1995, when he received respondents
last letter of demand, to September 23, 2002, when
respondent filed his second complaint, more than seven
years had elapsed; and that the first case, Civil Case No.
95-1796, did not interrupt the running of the period. The
RTC, however, denied petitioners’ Motion to Dismiss,
prompting the latter to file a petition for certiorari with
the CA, which eventually denied their petition. Thus,
petitioner appealed to the SC.
Issue: Is petitioner’s cause of action already barred
by prescription?
Held: No, petitioner’s invocation of prescription is
misplaced. We recall that on December 18, 1995,
respondent initially filed with the RTC of Makati
City its first complaint. While it was later
dismissed without prejudice to his own motion, we
note that the dismissal sought was not for the
purpose of voluntarily abandoning his claim. On the
contrary, respondent’s intention was to expedite the
enforcement of his rights. Understandably, he felt
frustrated at the snails pace at which his case was
moving. As mentioned earlier, CA-G.R. SP No. 59309
remained pending before the Court of Appeals for six (6)
long years.
We further observe that respondent acted
swiftly after the dismissal of his case without prejudice
by the Makati RTC. He immediately filed with the Court
of Appeals a manifestation that Civil Case No. 95-1796
was dismissed by the lower court. But the Court of
Appeals acted on his manifestation only after one year.
This delay, beyond respondents control, in turn further
caused delay in the filing of his new complaint with the
Quezon City RTC. Clearly, there was no inaction or lack
of interest on his part.
The statute of limitations was devised to
operate primarily against those who slept on their rights
and not against those desirous to act but could not do so
for causes beyond their control. Verily, the Court of
Appeals did not err in holding that the RTC, Branch 215,
Quezon City did not gravely abuse its discretion when it
denied petitioners motion to dismiss respondents
complaint and ruled that respondents filing of the
complaint in Civil Case No. Q-02-47835 is not barred by
prescription.
Effect on counterclaim
If a counterclaim has already been pleaded by
defendant prior to the service upon him of the plaintiff’s
motion to dismiss, and the court grants the said motion,
the dismissal “shall be limited to the complaint.” The
counterclaim is not dismissed, whether it is a
compulsory or permissive counterclaim because the rule
makes no distinction.
The defendant if he so desires may prosecute
his counterclaim either in a separate action or in the
same action. Should he choose to have his counterclaim
resolved in the same action, he must notify the court of
his preference within fifteen days from notice of the
plaintiff’s motion to dismiss. Should he opt to prosecute
his counterclaim in a separate action, the court should
render the corresponding order granting and reserving
his right to prosecute his claim in a separate complaint.
1997 Rules on Civil Procedure, Rule 17
Section 3. Dismissal due to fault of plaintiff. — If,
for no justifiable cause, the plaintiff fails to appear on
the date of the presentation of his evidence in chief on
the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these
Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same or
in a separate action. This dismissal shall have the effect
of an adjudication upon the merits, unless otherwise
declared by the court.
CRUZ VS. CA (2006)
FACTS: There are four different cases between the
parties, which are involved in the present controversy,
namely: (1st) an unlawful detainer case; (2nd) a Quieting
of Title; (3rd) an injunction case; and (4th) an Annulment
of Title with Damages. The first case was resolved
in favor of petitioner Cruz. As regards the second case,
it was dismissed by the RTC for respondents’ failure to
prosecute. Lastly, the third case was dismissed on the
ground of res judicata.
As regards the fourth case, petitioners
interposed a Motion for Outright Dismissal, which was
granted by the court. As such, respondents filed a
Motion for Reconsideration. The court granted said
Motion for Reconsideration. Accordingly, it reversed its
prior order and reinstated the case. Aggrieved,
petitioners filed a Petition for Review with the CA.
Unfortunately, the CA held that there was no res
judicata and thus, dismissed the Petition. Thereafter,
petitioners sought relief before the SC.
ISSUE: Are all the elements of res judicata present?
HELD: No. As regards the second element of res
judicata, private respondents argue that the dismissal of
Civil Case No. 1600 (for Quieting of Title) was not a
dismissal on the merits. The dismissal of this case, they
claim, will not bar the filing of the instant case (Civil
Case No. 2583-02 for Annulment of Title) because there
was neither litigious consideration of the evidence nor
any stipulations submitted by the parties at the trial. In
fact, there was no pre-trial conference and that after
four years of court inactivity, the case was dismissed for
failure to prosecute.
Their argument does not hold water. Section 3
of Rule 17 of the 1997 Rules of Civil Procedure provides:
Section 3. Dismissal due to fault of plaintiff. -
If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his
evidence in chief on the complaint, or to
prosecute his action for an unreasonable length
of time, or to comply with these Rules or any
order of the court, the complaint may be
dismissed upon motion of the defendant or
upon the court's own motion, without prejudice
to the right of the defendant to prosecute his
counterclaim in the same or in a separate
action. This dismissal shall have the effect of
an adjudication upon the merits, unless
otherwise declared by the court.
Page 96
Civil Procedure
ESGUERRA NOTES
The rule enumerates the instances where the
complaint may be dismissed due to plaintiff's fault: (1) if
he fails to appear on the date for the presentation of his
evidence in chief; (2) if he fails to prosecute his action
for an unreasonable length of time; or (3) if he fails to
comply with the rules or any order of the court. Once a
case is dismissed for failure to prosecute, this has the
effect of an adjudication on the merits and is understood
to be with prejudice to the filing of another action unless
otherwise provided in the order of dismissal. In other
words, unless there be a qualification in the order of
dismissal that it is without prejudice, the dismissal
should be regarded as an adjudication on the merits and
is with prejudice. The order dismissing Civil Case No.
1600 reads:
For failure of the plaintiffs as well as counsel to
appear on several settings despite due notices,
precisely for the reception of plaintiffs'
evidence, upon motion of the defendant
through Atty. Mark Arcilla, this case is
dismissed for failure to prosecute.
It is clear from the afore-mentioned order that
said case was dismissed, upon petitioners' motion, for
failure of private respondents and their counsel to
attend several scheduled hearings for the presentation
of their evidence. Since the order did not contain a
qualification whether same is with or without prejudice,
following Section 3, it is deemed to be with prejudice
and shall have the effect of an adjudication on the
merits. A ruling based on a motion to dismiss, without
any trial on the merits or formal presentation of
evidence, can still be a judgment on the merits.
PHILIPPINE NATIONAL BANK VS. DE GUZMAN
(2010)
Facts: Respondent Gina de Guzman obtained a
P300,000.00 loan from petitioner, Philippine National
Bank, secured by a real estate mortgage over a parcel of
land registered in her name. Gina acquired the property
from her father, Francisco de Guzman, through a Deed
of Absolute Sale dated August 28, 1978. Gina’s sister,
Rosalia de Guzman, the beneficiary of the family home
standing on the said lot, gave her consent to the
mortgage.
Later, Rosalia filed a Complaint for Declaration
of Nullity of Document, Cancellation of Title,
Reconveyance, Cancellation of Mortgage, and Damages
against Gina and petitioner, alleging that the purported
sale of the property by Francisco to Gina was fraudulent.
The Complaint was then amended to replace respondent
Intestate Estate of Francisco de Guzman as plaintiff.
Subsequently, the RTC dismissed the case due
to Rosalia’s failure to comply with the court’s order to
pay the legal fees so that alias summons could be
served. No appeals was taken from this order, thus, the
dismissal became final and executory.
Thereafter, respondent Intestate Estate filed
another Complaint, also for Declaration of Nullity of
Documents, Cancellation of Title, Reconveyance,
Cancellation of Mortgage, and Damages, against Gina
and petitioner, with essentially the same allegations as
the former Complaint.
On June 1, 2000, petitioner filed a Motion to
Dismiss on the ground of res judicata, alleging that the
Complaint is barred by prior judgment. In an Order, the
RTC denied said motion. The court ruled that, since
there was no determination of the merits of the first
case, the filing of the second Complaint was not barred
by res judicata.
Subsequently, petitioner filed two more
motions to dismiss raising forum-shopping and lack or
jurisdiction as a ground, respectively. Both motions
were, however, denied. The CA affirmed the RTC’s
Orders. Eventually the case reached the Supreme Court.
Issue: Whether or not the second complaint is NOT
barred by res judicata because there was no
determination of the merits of the first case?
Held: No. In any case, we agree with the CAs
conclusion that the trial court did not commit
grave abuse of discretion in denying petitioners
Motion to Dismiss. However, we do not agree that
the judgment of dismissal in the first case was not
on the merits. A ruling on a motion to dismiss,
issued without trial on the merits or formal
presentation of evidence, can still be a judgment
on the merits. Section 3 of Rule 17 of the Rules of
Court is explicit that a dismissal for failure to
comply with an order of the court shall have the
effect of an adjudication upon the merits. In other
words, unless the court states that the dismissal is
without prejudice, the dismissal should be
understood as an adjudication on the merits and is
with prejudice.
Nonetheless, bearing in mind the
circumstances obtaining in this case, we hold that res
judicata should not be applied as it would not serve the
interest of substantial justice. Proceedings on the case
had already been delayed by petitioner, and it is only
fair that the case be allowed to proceed and be resolved
on the merits. Indeed, we have held that res judicata is
to be disregarded if its rigid application would involve
the sacrifice of justice to technicality, particularly in this
case where there was actually no determination of the
substantive issues in the first case and what is at stake
is respondents home.
3A APPAREL CORPORATION VS. METROPOLITAN
BANK AND TRUST CO. (2010)
Facts: Petitioner 3A Apparel Corporation (the
corporation) mortgaged its condominium unit to
respondent Metropolitan Bank and Trust Company
(MBTC) to secure a loan. For failure to settle its
obligation, MBTC extrajudicially foreclosed the
mortgage, drawing the corporation, represented by its
president Ray Shu, to file a complaint for petition for
annulment of real estate mortgage, promissory note,
foreclosure of sale, and related documents before the
Regional Trial Court (RTC) of Pasig against MBTC and its
officers.
After almost two years from the time the
case was scheduled for presentation of the corporation’s
evidence, without it having presented any evidence,
Branch 264 of the Pasig, RTC, upon motion of MBTC,
dismissed the corporation’s complaint for failure to
prosecute.
The corporation’s motion for reconsideration
Page 97
Civil Procedure
ESGUERRA NOTES
having been denied by the trial court, it filed a petition
for certiorari before the Court of Appeals, positing that
substantial justice must prevail over mere technicalities.
By Decision of July 18, 2008, the appellate court
dismissed the petition. It held that dismissal on the
ground of failure to prosecute has, citing Section 3 of
Rule 17, the effect of an adjudication on the merits,
unless otherwise declared by the court.
Issue: Is dismissal for failure to prosecute an
adjudication on the merits?
Held: Yes, Section 3 of Rule 17 of the Rules of Court is
indeed clear that a dismissal for failure to prosecute is
an adjudication upon the merits, unless otherwise
declared by the court. No such declaration was made by
the trial court, hence, its dismissal of the corporations
petition should be challenged by appeal within the
reglementary period.
The invocation of justice and fair play by the
corporation does not impress.
. . . In order to perfect an appeal all that is
required is a pro forma notice of appeal.
Perhaps due to failure to file a notice of
appeal within the remaining two days of the
appeal period, petitioners counsel instead
filed the instant petition. The rules of
procedure, however, do not exist for the
convenience of the litigants. These rules are
established to provide order to and enhance
the efficiency of our judicial system. They are
not to be trifled with lightly or overlooked by
mere expedience of invoking substantial
justice.
Indeed, a plaintiff is duty-bound to prosecute its
action with utmost diligence and with reasonable
dispatch in order to obtain the relief prayed for and, at
the same time, minimize the clogging of court dockets.
The expeditious disposition of cases is as much the duty
of the plaintiff as the courts.
The corporation’s attempt to attribute part of
the blame to the trial court which cancelled the hearing
on April 15, 2002 when the presiding judge was on
official leave, and that on June 20, 2002 during the
semestral docket inventory of cases, at which times the
corporation claims to have been ready to present
evidence does not impress too. If indeed that were the
case, it could have presented its evidence during the
succeeding scheduled hearings. Yet, it did not. Instead,
it caused the postponement of the subsequent six
scheduled hearings from August 7, 2002 to July 9, 2003
inclusive for unjustifiable reasons.
Effect on counterclaim
PINGA VS. SANTIAGO (2006)
Facts: Respondent Santiago filed a complaint for
injunction against petitioner Pinga. The complaint
alleged that petitioner and one Saavedra had been
unlawfully entering the coco lands of the respondent,
cutting wood and bamboos and harvesting the fruits of
the coconut. In their Amended Answer with
Counterclaim, petitioner disputed respondent’s
ownership over the properties and claimed that his
father had been in possession thereof since the 1930s.
During the trial of the case, respondent failed
to present his evidence. It appears that on 25 October
2004, the RTC already ordered the dismissal of the
complaint after respondents counsel had sought the
postponement of the hearing scheduled then. However,
the order of dismissal was subsequently reconsidered by
the RTC in an Order dated 9 June 2005, which took into
account the assurance of respondents counsel that he
would give priority to that case.
At the hearing of 27 July 2005, respondent’s
counsel once again failed to appear, sending in his stead
a representative who sought the postponement of the
hearing. Petitioner’s counsel opposed the motion for
postponement and moved instead for the dismissal of
the case. The RTC noted that it was obvious that
respondents had failed to prosecute the case for an
unreasonable length of time, in fact not having
presented their evidence yet. On that ground, the
complaint was dismissed.
Thereafter, respondent filed a Motion for
Reconsideration, opting, however, not to seek that their
complaint be reinstated, but praying instead that the
entire action be dismissed and petitioner be disallowed
from presenting evidence ex parte. They cited two cases
which noted the instances in which a counterclaim could
not remain pending for independent adjudication. The
court granted respondent’s motion and dismissed
petitioner’s counterclaim. This prompted petitioner to file
a Motion for Reconsideration, but the court denied the
same. Notably, respondent filed an Opposition to
petitioner’s Motion for Reconsideration wherein they
argued that compulsory counterclaims cannot be
adjudicated independently of plaintiff’s cause of action,
and a conversu, the dismissal of the complaint carries
with it the dismissal of the compulsory counterclaims.
Issue: Is the dismissal of the complaint due to failure
to prosecute carries with it the dismissal of the
compulsory counterclaim?
Held: No. We hold that under Section 3, Rule 17 of the
1997 Rules of Civil Procedure, the dismissal of the
complaint due to the fault of plaintiff does not
necessarily carry with it the dismissal of the
counterclaim, compulsory or otherwise. In fact, the
dismissal of the complaint is without prejudice to the
right of defendants to prosecute the counterclaim.
Our core discussion begins with Section 3, Rule
17 of the 1997 Rules of Civil Procedure, which states:
SEC. 3. Dismissal due to fault of plaintiff.If,
for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of
his evidence in chief on the complaint, or to
prosecute his action for an unreasonable
length of time, or to comply with these
Rules or any order of the court, the
complaint may be dismissed upon motion
of defendant or upon the court's own
motion, without prejudice to the right of
the defendant to prosecute his
counterclaim in the same or in a separate
action. This dismissal shall have the effect
of an adjudication upon the merits, unless
otherwise declared by the court.
The express qualification in the provision that
the dismissal of the complaint due to the plaintiffs fault,
Page 98
Civil Procedure
ESGUERRA NOTES
as in the case for failure to prosecute, is without
prejudice to the right of the defendant to prosecute his
counterclaim in the same or separate action. This stands
in marked contrast to the provisions under Rule 17 of
the 1964 Rules of Court which were superseded by the
1997 amendments. In the 1964 Rules, dismissals due to
failure to prosecute were governed by Section 3, Rule
17, to wit:
SEC. 3. Failure to prosecute. If plaintiff fails
to appear at the time of the trial, or to
prosecute his action for an unreasonable
length of time, or to comply with these rules
or any order of the court, the action may be
dismissed upon motion of the defendant or
upon the courts own motion. This dismissal
shall have the effect of an adjudication upon
the merits, unless otherwise provided by
court.
Evidently, the old rule was silent on the effect
of such dismissal due to failure to prosecute on the
pending counterclaims. As a result, there arose what
one authority on remedial law characterized as the
nagging question of whether or not the dismissal of the
complaint carries with it the dismissal of the
counterclaim. Jurisprudence construing the previous
Rules was hardly silent on the matter.
Accordingly, the RTC clearly erred when it
ordered the dismissal of the counterclaim, since Section
3, Rule 17 mandates that the dismissal of the complaint
is without prejudice to the right of the defendant to
prosecute the counterclaim in the same or separate
action. If the RTC were to dismiss the counterclaim, it
should be on the merits of such counterclaim. Reversal
of the RTC is in order, and a remand is necessary for
trial on the merits of the counterclaim.
The present rule embodied in Sections 2 and 3
of Rule 17 ordains a more equitable disposition of the
counterclaims by ensuring that any judgment thereon is
based on the merit of the counterclaim itself and not on
the survival of the main complaint. Certainly, if the
counterclaim is palpably without merit or suffers
jurisdictional flaws, which stand independent of the
complaint, the trial court is not precluded from
dismissing it under the amended rules, provided that the
judgment or order dismissing the counterclaim is
premised on those defects. At the same time, if the
counterclaim is justified, the amended rules now
unequivocally protect such counterclaim from
peremptory dismissal by reason of the dismissal of the
complaint.
PERKIN ELMER SINGAPORE PTE LTD. VS. DAKILA
TRADING CORPORATION (2007)
Facts: Respondent Dakila entered into a Distribution
Agreement with petitioner Perkin-Elmer Instruments
Asia (PEIA), a corporation duly organized and existing
under the laws of Singapore and engaged in the
business of manufacturing, producing, selling or
distributing of laboratory equipment. By virtue of the
agreement, PEIA appointed the Dakila as the sole
distributor of its products in the Philippines.
Furthermore, the agreement provides that Dakila shall
order the products of PEIA, which it shall sell in the
Philippines, either from PEIA itself or from Perkin-Elmer
Instrument Philippines (PEIP), an affiliate of PEIA.
On 2 August 1997, PEIA unilaterally terminated
the agreement, prompting respondent to file before the
RTC a Complaint for collection of sum of money and
damages against PEIA and PEIP.
Dakila then filed Ex-Parte Motions for Issuance
of Summons and for Leave of Court to Deputize
Respondents General Manager, Richard A. Tee, to Serve
Summons Outside of the Philippines, which the RTC
granted in its Order, dated 27 April 2000., an Alias
Summons, dated 4 September 2000, was issued by the
RTC to PEIA. However, said Alias Summons was served
on 28 September 2000 and received by Perkinelmer
Asia, a Singaporean based sole proprietorship, owned
by the petitioner Perkin Elmer Singapore, Ltd (PSE) and,
allegedly, a separate and distinct entity from PEIA.
Subsequently, Dakila filed an Ex-Parte motion
to Admit Amended Complaint. In its Amended
Complaint, Dakila claimed that PEIA had become a sole
proprietorship owned by PSE. According to Dakila, a
change in PEIA’s name and juridical status did not
detract from the fact that all its due and outstanding
obligations to 3rd parties were assumed by PSE. Thus, in
its amended complaint, Dakila sought to change the
name of PEIA to PSE.
Thereafter, the RTC admitted respondent’s
amended complaint. This prompted PSE to file a Special
Appearance and Motion to Dismiss respondent’s
Amended Complaint. PSE’s Motion to Dismiss, however,
was denied. As such, Petitioner PSE filed an answer ad
cautelam with compulsory counterclaim. In its
counterclaim, petitioner PSE sought payment of
damages and attorney’s fees by reason of the alleged
unfounded suit filed by respondent Dakila.
Issue: Will the dismissal of the instant case carry with
it the dismissal of petitioner’s counterclaim?
Held: No. Finally, as regards the petitioners
counterclaim, which is purely for damages and
attorney’s fees by reason of the unfounded suit filed by
respondent against it, it has long been settled that the
same truly falls under the classification of compulsory
counterclaim and it must be pleaded in the same action,
otherwise, it is barred. In the case at bar, this Court
orders the dismissal of the Complaint filed by the
respondent against the petitioner because the court a
quo failed to acquire jurisdiction over the person of the
latter. Since the complaint of the respondent was
dismissed, what will happen then to the counterclaim of
the petitioner? Does the dismissal of the complaint carry
with it the dismissal of the counterclaim?
In the cases of Metal Engineering Resources
Corp. v. Court of Appeals, International Container
Terminal Services, Inc. v. Court of Appeals, and BA
Finance Corporation v. Co., the Court ruled that if the
court does not have jurisdiction to entertain the main
action of the case and dismisses the same, then the
compulsory counterclaim, being ancillary to the principal
controversy, must likewise be dismissed since no
jurisdiction remained for any grant of relief under the
counterclaim. If we follow the aforesaid pronouncement
of the Court in the cases mentioned above, the
counterclaim of the herein petitioner being compulsory
in nature must also be dismissed together with the
Complaint. However, in the case of Pinga vs. Heirs of
German Santiago, the Court explicitly expressed that:
Page 99
Civil Procedure
ESGUERRA NOTES
Similarly, Justice Feria notes that the present
rule reaffirms the right of the defendant to
move for the dismissal of the complaint and to
prosecute his counterclaim, as stated in the
separate opinion [of Justice Regalado in BA
Finance]. Retired Court of Appeals Justice
Hererra pronounces that the amendment to
Section 3, Rule 17 [of the 1997 Revised
Rules of Civil Procedure] settles that
nagging question whether the dismissal of
the complaint carries with it the dismissal
of the counterclaim, and opines that by
reason of the amendments, the rulings in
Metals Engineering, International
Container, and BA Finance may be
deemed abandoned. x x x.
x x x, when the Court promulgated the 1997
Rules of Civil Procedure, including the
amended Rule 17, those previous jural
doctrines that were inconsistent with the new
rules incorporated in the 1997 Rules of Civil
Procedure were implicitly abandoned insofar
as incidents arising after the effectivity of the
new procedural rules on 1 July 1997. BA
Finance, or even the doctrine that a
counterclaim may be necessarily dismissed
along with the complaint, clearly conflicts with
the 1997 Rules of Civil Procedure. The
abandonment of BA Finance as doctrine
extends as far back as 1997, when the Court
adopted the new Rules of Civil Procedure. If,
since then, abandonment has not been
affirmed in jurisprudence, it is only because no
proper case has arisen that would warrant
express confirmation of the new rule. That
opportunity is here and now, and we thus
rule that the dismissal of a complaint due
to fault of the plaintiff is without
prejudice to the right of the defendant to
prosecute any pending counterclaims of
whatever nature in the same or separate
action. We confirm that BA Finance and all
previous rulings of the Court that are
inconsistent with this present holding are
now abandoned. [Emphasis supplied].
It is true that the aforesaid declaration of
the Court refers to instances covered by Section 3, Rule
17 of the 1997 Revised Rules of Civil Procedure on
dismissal of the complaint due to the fault of the
plaintiff. Nonetheless, it does not also preclude the
application of the same to the instant case just because
the dismissal of respondents Complaint was upon the
instance of the petitioner who correctly argued lack of
jurisdiction over its person.
Also in the case of Pinga v. Heirs of German
Santiago, the Court discussed the situation wherein the
very filing of the complaint by the plaintiff against the
defendant caused the violation of the latters rights. As
to whether the dismissal of such a complaint should also
include the dismissal of the counterclaim, the Court
acknowledged that said matter is still debatable, viz:
Whatever the nature of the counterclaim, it
bears the same integral characteristics as a
complaint; namely a cause (or causes) of
action constituting an act or omission by which
a party violates the right of another. The main
difference lies in that the cause of action in the
counterclaim is maintained by the defendant
against the plaintiff, while the converse holds
true with the complaint. Yet, as with a
complaint, a counterclaim without a cause of
action cannot survive.
x x x if the dismissal of the complaint
somehow eliminates the cause(s) of the
counterclaim, then the counterclaim cannot
survive. Yet that hardly is the case, especially
as a general rule. More often than not, the
allegations that form the counterclaim are
rooted in an act or omission of the plaintiff
other than the plaintiffs very act of filing the
complaint. Moreover, such acts or omissions
imputed to the plaintiff are often claimed to
have occurred prior to the filing of the
complaint itself. The only apparent
exception to this circumstance is if it is
alleged in the counterclaim that the very
act of the plaintiff in filing the complaint
precisely causes the violation of the
defendants rights. Yet even in such an
instance, it remains debatable whether
the dismissal or withdrawal of the
complaint is sufficient to obviate the
pending cause of action maintained by the
defendant against the plaintiff.
Based on the aforequoted ruling of the Court, if
the dismissal of the complaint somehow eliminates the
cause of the counterclaim, then the counterclaim cannot
survive. Conversely, if the counterclaim itself states
sufficient cause of action then it should stand
independently of and survive the dismissal of the
complaint. Now, having been directly confronted with
the problem of whether the compulsory counterclaim by
reason of the unfounded suit may prosper even if the
main complaint had been dismissed, we rule in the
affirmative.
It bears to emphasize that petitioners
counterclaim against respondent is for damages and
attorneys fees arising from the unfounded suit. While
respondents Complaint against petitioner is already
dismissed, petitioner may have very well already
incurred damages and litigation expenses such as
attorneys fees since it was forced to engage legal
representation in the Philippines to protect its rights and
to assert lack of jurisdiction of the courts over its person
by virtue of the improper service of summons upon it.
Hence, the cause of action of petitioners counterclaim is
not eliminated by the mere dismissal of respondent’s
complaint.
It may also do well to remember that it is
this Court which mandated that claims for damages and
attorneys fees based on unfounded suit constitute
compulsory counterclaim which must be pleaded in the
same action or, otherwise, it shall be barred. It will then
be iniquitous and the height of injustice to require the
petitioner to make the counterclaim in the present
action, under threat of losing his right to claim the same
ever again in any other court, yet make his right totally
dependent on the fate of the respondents complaint.
If indeed the Court dismisses petitioners
counterclaim solely on the basis of the dismissal of
respondents Complaint, then what remedy is left for the
petitioner? It can be said that he can still file a separate
action to recover the damages and attorneys fees based
Page 100
Civil Procedure
ESGUERRA NOTES
on the unfounded suit for he cannot be barred from
doing so since he did file the compulsory counterclaim in
the present action, only that it was dismissed when
respondents Complaint was dismissed. However, this
reasoning is highly flawed and irrational considering that
petitioner, already burdened by the damages and
attorneys fees it may have incurred in the present case,
must again incur more damages and attorneys fees in
pursuing a separate action, when, in the first place, it
should not have been involved in any case at all.
Since petitioners counterclaim is compulsory in
nature and its cause of action survives that of the
dismissal of respondents complaint, then it should be
resolved based on its own merits and evidentiary
support.
Remedy of plaintiff
KO V. PNB (2006)
Facts: Petitioners filed an action for the Annulment of
Mortgage, Extrajudicial Foreclosure Sale, and Annulment
of TCTs and Deed of Sale. The complaint alleged that
the assailed mortgage and foreclosure proceedings were
null and void since the written consent of petitioners, as
beneficiaries of the mortgaged property were not
secured.
During the course of the proceedings, petitioners and
their counsel failed to attend a scheduled trial. Upon
motion of respondent bank, the complaint was
dismissed.
Petitioners filed a motion for reconsideration claiming
that they have been continuously pursuing negotiations
with respondent bank to purchase back the property and
have gained positive results. Respondent bank
countered that from the time the complaint was filed, a
period of three years had elapsed but petitioners failed
to prosecute their case, showing lack of interest in the
early resolution thereof.
Issue: Is an Appeal under Rule 45 the proper remedy in
elevating a case dismissed due to failure to prosecute?
Held: No. On the procedural aspect, we find that
petitioners erred in filing a petition for review on
certiorari under Rule 45 of the Rules of Court instead of
filing an appeal with the Court of Appeals. Section 3,
Rule 17 of the Rules of Court provides:
SEC. 3. Dismissal due to fault of plaintiff.
If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his
evidence in chief on the complaint, or to prosecute
his action for an unreasonable length of time, or to
comply with these Rules or any order of the court,
the complaint may be dismissed upon the motion of
the defendant or upon the courts own motion,
without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the
effect of an adjudication upon the merits,
unless otherwise declared by the court.
(Emphasis supplied)
Upon the order of dismissal, petitioners counsel
filed a timely motion for reconsideration which was
denied by the trial court. Considering that an order of
dismissal for failure to prosecute has the effect of an
adjudication on the merits, petitioners counsel should
have filed a notice of appeal with the appellate court
within the reglementary period. Instead of filing a
petition under Rule 45 of the Rules of Court, the proper
recourse was an ordinary appeal with the Court of
Appeals under Rule 41, which provides:
Sec. 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 x x x. (Emphasis supplied)
1997 Rules on Civil Procedure, 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.
DEFAULT
(RULE 9, SEC. 3)
Nature in general
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, Section 3, par. 1)
When may a defendant be declared in default?
1. Failure to file answer
Default; declaration of. — 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, Section 3, par. 1)
2. Failure to furnish copy of answer
3. Failure to appear at pre-trial
Effect of failure to appear. — The failure of the
plaintiff to appear when so required pursuant to the
next preceding section (duty of parties and their
counsel to appear at pre-trial) shall be cause for
dismissal of the action. The dismissal shall be with
prejudice, unless other-wise ordered by the court. A
Page 101
Civil Procedure
ESGUERRA NOTES
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. (Rule 18, Section 5)
4. Failure to comply with modes of discovery
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:
… the notice of lis pendens. Petitioner filed a motion to set
… the case for pre-trial, which motion was denied by the
… trial court on the ground that respondent bank has not
(c) An order striking out pleadings or parts thereof,
or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or
any part thereof, or rendering a judgment by
default against the disobedient party. [Rule 29,
Section 3(c)]
When allowed
Section 3. Default; declaration of. — 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, Section 3, par. 1)
Effects
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. [Rule 9, Section 3 (a)]
Effect of partial default. — When a pleading asserting a
claim states a common cause of action against several
defending parties, some of whom answer and the others
fail to do so, the court shall try the case against all upon
the answers thus filed and render judgment upon the
evidence presented. [Rule 9, Section 3 (c)]
GAJUDO V. TRADERS ROYAL BANK (2006)
Facts: Petitioners alleged that petitioner Chua obtained
a loan from respondent in the amount of P75k secured
by a real estate mortgage over a parcel of land, and
owned in common by petitioners. As the loan was not
paid, respondent commenced extra-judicial foreclosure
proceedings and the property was sold to respondent for
the sum of P24.9k. Petitioners filed a complaint against
respondent seeking the annulment of the extra-judicial
foreclosure and auction sale of the property, allegedly
because the sale was tainted with irregularity and the
bid price was shockingly or unconscionably low, among
others. Respondent filed its answer with counterclaim,
asserting that the foreclosure sale of the mortgaged
property was done in accordance with law and that the
bid price was neither unconscionable, nor shockingly
low.
During trial, a big conflagration hit the City Hall
of QC destroying the records of the case. After the
records were reconstituted, it was discovered that the
foreclosed property was sold by respondent to the
Ceroferr Realty Corporation, and that the notice of lis
pendens annotated on the certificate of title had already
been cancelled. Petitioners, with leave of court,
amended their complaint, but the trial court dismissed
the case without prejudice for failure to pay additional
filing fees.
Petitioners re-filed the complaint with the same court,
impleading as additional defendants the Ceroferr Realty
Corporation, and as additional cause of action, that the
new defendants conspired with respondent in canceling
yet filed its answer. Petitioner filed a motion to declare
respondent in default, alleging that no answer has been
filed despite the service of summons. Accordingly,
respondent was declared in default and petitioners were
allowed to present evidence ex parte. A partial decision
was rendered.
Respondent filed a motion to set aside partial decision
by default and admit the Answer with counterclaim. The
court denied said motion. Respondent appealed the
Partial Decision to the Court of Appeals (CA). The CA
ruled in favor of the respondents.
Petitioners challenge the CA Decision for failing to apply the
provisions of Section 3, Rule 9. In essence, petitioners argue
that the quantum of evidence for judgments flowing from a
default order under Section 3 of Rule 9 is not the same as
that provided for in Section 1 of Rule 133.
Issue: Whether or not the CA erred in failing to apply
the provisions of Section 3, Rule 9 of the 1997 Rules of
Civil Procedure and in applying instead the rule on
preponderance of evidence under Section 1, Rule 133.
Ruling: No. The Petition has no merit. Between the two
rules, there is no incompatibility that would preclude the
application of either one of them. To begin with, Section
3 of Rule 9 governs the procedure which the trial court
is directed to take when a defendant fails to file an
answer. According to this provision, the court "shall
proceed to render judgment granting the claimant such
relief as his pleading may warrant," subject to the
court’s discretion on whether to require the presentation
of evidence ex parte. The same provision also sets down
guidelines on the nature and extent of the relief that
may be granted. In particular, the court’s judgment
"shall not exceed the amount or be different in kind from
that prayed for nor award unliquidated damages."
As in other civil cases, basic is the rule that the
party making allegations has the burden of proving them
by a preponderance of evidence. Moreover, the parties
must rely on the strength of their own evidence, not
upon the weakness of the defense offered by their
opponent. This principle holds true, especially when the
latter has had no opportunity to present evidence
because of a default order.
Regarding judgments by default, it was
explained in Pascua v. Florendo that complainants are
not automatically entitled to the relief prayed for, once
Page 102
Civil Procedure
ESGUERRA NOTES
the defendants are declared in default. Favorable relief
can be granted only after the court has ascertained that
the relief is warranted by the evidence offered and the
facts proven by the presenting party.
As held in the case of Lim v. Ramolete, the
default or failure of the defendant to answer should not
be interpreted as an admission that the plaintiff’s cause
of action find support in the law or that plaintiff is
entitled to the relief prayed for. Being declared in
default does not constitute a waiver of rights except that
of being heard and of presenting evidence in the trial
court. A defaulted defendant is not actually thrown out
of court. While in a sense it may be said that by
defaulting he leaves himself at the mercy of the court,
the rules see to it that any judgment against him must
be in accordance with law. The evidence to support the
plaintiff’s cause is, of course, presented in his absence,
but the court is not supposed to admit that which is
basically incompetent. Although the defendant would not
be in a position to object, elementary justice requires
that only legal evidence should be considered against
him. If the evidence presented should not be sufficient
to justify a judgment for the plaintiff, the complaint
must be dismissed. And if an unfavorable judgment
should be justifiable, it cannot exceed in amount or be
different in kind from what is prayed for in the
complaint.
In sum, while petitioners were allowed to
present evidence ex parte under Section 3 of Rule 9,
they were not excused from establishing their claims for
damages by the required quantum of proof under
Section 1 of Rule 133. Stated differently, any advantage
they may have gained from the ex parte presentation of
evidence does not lower the degree of proof required.
Clearly then, there is no incompatibility between the two
rules.
VLASON ENTERPRISES v. CA (1999)
Facts: Poro Point Shipping Services, then acting as the
local agent of Omega Sea Transport Company of
Honduras & Panama, requested permission for its
vessel M/V Star Ace, which had engine trouble, to
unload its cargo and to store it at the Philippine Ports
Authority (PPA) compound in San Fernando, La Union.
Despite the approval of the request, the customs
personnel boarded and seized the vessel on suspicion
that it was the hijacked M/V Silver Med and that its
cargo would be smuggled into the country. While
seizure proceedings were ongoing, La Union was hit by 3
typhoons, which damaged the vessel. Because of this,
Omega entered into a salvage agreement with
respondent Duraproof Services to secure and repair the
vessel at an agreed consideration.
The District Collector of Customs lifted the
warrant of seizure, but the Customs Commissioner
declined to issue a clearance and instead forfeited the
vessel and its cargo. This prompted Duraproof to enforce
its preferred salvors lien by filing with the RTC a petition
for certiorari, prohibition and mandamus assailing the
actions of the Customs Officers, and impleading PPA and
Med Line Philippines, Inc. as respondents. Duraproof
amended its petition to include other companies
involved, including Vlason Enterprises. In both Petitions,
Duraproof failed to allege anything pertaining to Vlason,
or any prayer for relief against it.
Summonses for the amended Petition were
served. Duraproof moved several times to declare the
respondents it impleaded in default. Out of those
respondents, only the following were declared by RTC in
default: the Singkong Trading Co., Commissioner Mison,
M/V Star Ace and Omega. Duraproof filed an ex parte
Motion to present evidence against the defaulting
respondents, which was granted.
The RTC ruled in favor of Duraproof and
ordered Vlason to pay P3 Million worth of damages.
Duraproof moved for the execution of judgment. The
Motion was granted and a Writ of Execution was issued.
Vlason Enterprises filed a Motion for
Reconsideration on the ground that it was allegedly not
impleaded as a defendant, served summons or declared
in default, and hence Duraproof may not present
evidence against it in default. The trial court issued a
cease and desist order to restrain the implementing the
Writ of Execution and from levying on the personal
property of the defendants. The order was unheeded.
Duraproof filed with the CA a Petition for
Certiorari and Prohibition to nullify the cease and desist
orders of the trial court. CA issued a TRO against the
RTC order. The CA rendered the assailed Decision,
stating that the decision of the RTC had become final
and executory, never having been disputed or appealed
to a higher court, and that the lower court may now
take appropriate action on the urgent ex-parte motion
for issuance of a writ of execution. Thus, the RTC issued
a writ of possession over petitioner’s barge Lawin.
Issue: Whether or not the default judgment rendered
by the RTC was binding on Vlason.
Ruling: No. Vlason was never declared in default. The
trial court denied Duraproof’s motion to declare all the
defendants in default, but it never acted on the latter’s
subsequent motion to likewise declare Vlason in default.
The RTC declared in default only Atty. Eddie
Tamondong, as well as the other defendants Hon.
Salvador Mison, M/V Star Ace, Omega Sea Transport
Co., Inc. of Panama and Sinkong Trading Co., but
despite due notice to them, they failed to appear. Even
Duraproof cannot pinpoint which trial court order held
petitioner in default.
More important, the trial court admitted that it
never declared petitioner in default. There could not
have been any valid default-judgment rendered against
it. The issuance of an order of default is a condition sine
qua non in order that a judgment by default be clothed
with validity.
Furthermore, it is a legal impossibility to
declare a party-defendant to be in default before it was
validly served summons.
Page 103
Civil Procedure
ESGUERRA NOTES
Order of default
 When some answer and others default
(c) Effect of partial default. — When a pleading
asserting a claim states a common cause of
action against several defending parties, some of
whom answer and the others fail to do so, the
court shall try the case against all upon the
answers thus filed and render judgment upon the
evidence presented. [Rule 9, Section 3(c)]
 Extent of relief to be awarded
(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.
[Rule 9, Section 3(d)]
 Where not allowed
(e) Where no 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. [Rule 9, Section 3(e)]
Procedure after order of default
Section 3. Default; declaration of. — 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, Section 3, par. 1)
Remedy from order of default
Motion to set aside
(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 oath 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. [Rule 9, Section 3(b)]
BHAGWAN RAMNANI V. COURT OF APPEALS
(1993)
Facts: The Dizons filed a case for a sum of money
against the spouses Ramnani for their failure to remit
the value of jewelry which they received on a
consignment basis. Josephine Ramnani submitted an
answer with counterclaim stating the fact that it was the
Dizons who owed them money.
The spouses Ramnani did not appear during
the pre-trial; hence they were declared in default.
Consequently, the spouses Dizon presented their
evidence ex parte. The lower court ruled in against the
spouses Ramnani, holding them liable to the spouses
Dizon.
The Ramnanis filed a motion for
reconsideration on the ground that a "personal
obligation contracted by the wife without the consent of
the husband (was) being made enforceable against the
spouses' conjugal partnership despite absence of any
allegation and proof that the same redounded to the
benefit of the family. The motion was denied. Hence, a
Petition for Certiorari was filed with the Court of Appeals
(CA), arguing that the trial court erred in denying the
motion to lift order of default despite a clear showing of
a meritorious defense.
The CA denied the petition, stressing that the
writ of certiorari issues for the correction of errors of
jurisdiction only or grave abuse of discretion amounting
to lack or excess of jurisdiction. Petitioner’s allegation
of a valid and meritorious defense is a matter that could
very well be ventilated in an ordinary appeal.
Issue: Whether or not the CA erred in not setting aside
the order of default against petitioner Ramnani.
Ruling: No. The remedies available to a defendant who
has been declared in default are:
a) The defendant in default may, at any time after
discovery thereof and before judgment, file a
motion, under oath, to set aside the order of default
on the ground that his failure to answer was due to
fraud, accident, mistake or excusable neglect, and
that he has a meritorious defense; (Sec. 3, Rule
18)
b) 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;
c) If the defendant discovered the default after the
judgment has become final and executory, he may
file a petition for relief under Section 2 of Rule 38;
and
d) He may also appeal from the judgment rendered
against him as contrary to the evidence or to the
law, even if no petition to set aside the order of
default has been presented by him. (Sec. 2, Rule
41)
While the first remedy was adopted by the
petitioner, the motion to lift the order of default was
denied for failure to prove that the non-appearance is
excusable. The invocation of the deteriorating health of
defendant Josephine necessitating her trip abroad for
appropriate medical treatment is unavailing and there is
no medical certificate to attest to such illness.
The petitioner insists, however, that he had a
meritorious defense which the trial court should not
have disregarded. A meritorious defense is only one of
the two conditions. A satisfactory showing by the
movant of the existence of fraud, accident, mistake or
excusable neglect is also an indispensable requirement
for the setting aside of a judgment of default or the
order of default. In view of petitioners’ non-compliance
with this requirement, the motion to lift the order of
default was properly denied.
Page 104
Civil Procedure
ESGUERRA NOTES
Remedies from judgment by default
Before finality
1. Motion for reconsideration or new trial
2. Appeal
MARTINEZ V. REPUBLIC (2006)
FACTS: Jose R. Martinez filed a petition for the
registration in his name of three (3) parcels of land he
allegedly purchased from his uncle. He claimed
continuous possession of the lots, that the lots had
remained unencumbered, and that they became private
property through prescription.
The OSG, in behalf of the Republic of the
Philippines, opposed the petition. Despite the opposition
filed by the OSG, the RTC issued an order of general
default, even against the Republic of the Philippines.
This ensued when during the hearing, no party appeared
before the Court to oppose Martinez’s petition.
RTC concluded that Martinez and his
predecessors-in-interest had been for over 100 years in
possession characterized as continuous, open, public,
and in the concept of an owner. The RTC thus decreed
the registration of the three (3) lots in the name of
Martinez. From this Decision, the OSG filed a Notice of
Appeal. However, after the records had been
transmitted to the CA, the RTC received a letter from
the Land Registration Authority (LRA) stating that only
two of the lots sought to be registered were referred to
in the Notice of Hearing published in the Official Gazette,
and that the third lot was omitted due to the lack of an
approved survey plan for that property. LRA manifested
that this lot should not have been adjudicated to
Martinez for lack of jurisdiction. This letter was referred
by the RTC to the CA for appropriate action.
The CA reversed the RTC and ordered the
dismissal of the petition for registration. It found the
evidence presented by Martinez as insufficient to
support the registration of the subject lots. Martinez
directly assailed the CA decision before the SC, claiming
that the OSG no longer had personality to oppose the
petition, or appeal its allowance by the RTC, following
the order of general default.
ISSUE: Whether an order of general default bars the
Republic from interposing an appeal from the trial
court’s subsequent decision.
HELD: No. We hold that a defendant party declared in
default retains the right to appeal from the judgment by
default on the ground that the plaintiff failed to prove
the material allegations of the complaint, or that the
decision is contrary to law, even without need of the
prior filing of a motion to set aside the order of default.
By 1997, the doctrinal rule concerning the remedies of a
party declared in default had evolved into a fairly
comprehensive restatement as offered in Lina v. Court
of Appeals:
a) The defendant in default may, at any time after
discovery thereof and before judgment, file a motion,
under oath, to set aside the order of default on the
ground that his failure to answer was due to fraud,
accident, mistake or excusable neglect, and that he
has meritorious defenses; (Sec 3, Rule 18)
b) 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;
c) If the defendant discovered the default after the
judgment has become final and executory, he may
file a petition for relief under Section 2 of Rule 38;
and
d) He may also appeal from the judgment rendered
against him as contrary to the evidence or to the
law, even if no petition to set aside the order of
default has been presented by him. (Sec. 2, Rule 41)
The fourth remedy, that of appeal, is anchored
on Section 2, Rule 41 of the 1964 Rules. Yet even after
that provision’s deletion under the 1997 Rules, the Court
did not hesitate to expressly rely again on the Lina
doctrine, including the pronouncement that a defaulted
defendant may appeal from the judgment rendered
against him.
Yet even if it were to assume the doubtful
proposition that this contested right of appeal finds no
anchor in the 1997 Rules, the doctrine still exists,
applying the principle of stare decisis. Jurisprudence
applying the 1997 Rules has continued to acknowledge
the Lina doctrine which embodies this right to appeal as
among the remedies of a defendant, and no argument in
this petition persuades the Court to rule otherwise.
The OSG does not impute error on the part of
RTC in improperly declaring the Republic in default even
though an opposition had been filed to Martinez’s
petition. The RTC appears to have issued the order of
general default simply on the premise that no oppositor
appeared before it on the hearing. But it cannot be
denied that the OSG had already duly filed its Opposition
to Martinez’s petition long before the said hearing. It
was improper to declare the oppositor in default simply
because he failed to appear on the day set for the initial
healing. Strangely, the OSG did not challenge the
propriety of the default order. It would thus be improper
for the Court to make a pronouncement on the validity
of the default order since the same has not been put
into issue.
After finality
1. Petition for relief from judgment
2. Annulment of judgment
Is certiorari a proper remedy?
JAO & COMPANY, INC. V. CA (1995)
FACTS: Due to the non-appearance of the petitioner Jao
& Company, Inc., during the hearing on the merits, the
RTC Manila, upon motion of herein private respondent
Top Service, Inc., issued an order dated April 14, 1989
declaring said petitioner in default and allowed evidence
to be presented ex-parte. The petitioner however filed
an answer. On May 26, 1989, the trial court rendered a
decision ordering Jao to pay Top Service the agreed
rentals with 12% interest. A writ of preliminary
injunction was issued by the RTC. By virtue of such
decision, Top Service stated that Jao’s counsel had
withdrawn his appearance in the trial court and left no
forwarding address. No notice of the said order of
Page 105
Civil Procedure
ESGUERRA NOTES
default and the decision could be given it. The former
contends that the latter’s remedy was timely appeal,
which the latter failed to perfect.
ISSUE: Whether the decision of the trial court,
promulgated on May 26, 1989, became final.
HELD: Yes. Under ordinary circumstances, the proper
remedy of a party wrongly declared in default is either
to appeal from the judgment by default or to file a
petition for relief from judgment, and not certiorari. A
default judgment is an adjudication on the merits and is,
thus, appealable. Since appeal is the proper remedy, the
extraordinary writ of certiorari will not lie.
Petitioner contends that it could not be bound
by the questioned Order of April 14, 1989 declaring it in
default and the subsequent Decision of May 20, 1989
because it did not receive copies thereof. Respondents
counter that such non-service was due to petitioner's
fault in not furnishing the trial court with its "forwarding
address" after its counsel withdrew his appearance. This
Court is not in a position to settle this issue of fact — as
indeed the Supreme Court does not decide such
questions.
But it is not disputed that after receipt of the
decision, petitioner filed a motion for reconsideration.
Thus, whatever defects — if indeed there was any —
may have been committed by the trial court in failing to
give constructive notice of its erroneous default order
was cured by petitioner's voluntary filing of the said
motion for reconsideration. Upon denial thereof,
petitioner should have appealed. But instead of doing
that, it opted for the wrong remedy of certiorari.
INDIANA AEROSPACE UNIVERSITY V.
COMMISSION ON HIGHER EDUCATION (2001)
FACTS: In 1996, the Chairman of the Technical Panel
for Engineering, Architecture, and Maritime Education of
CHED, received a letter from Douglas Macias, Chairman
of the Board of Aeronautical Engineering, PRC inquiring
whether petitioner Indiana Aerospace University had
already acquired university status in view of their
representation in the advertisement in the Manila
Bulletin.
After investigation, it was found that there was
a violation committed by petitioner when it used the
term “university” when it had not yet complied with the
basic requirement of being a university as prescribed in
CHED Memorandum. It was affirmed that petitioner
(registered as Indiana School of Aeronautics, Inc.) had
not amended its Articles of Incorporation to change its
name to a “university.” CHED ordered petitioner to
desist from using the word “university.” Petitioner
through its chairman and founder appealed the Order of
CHED averring that the school will suffer damage if it
will not be allowed to use the word “university” in its
school name.
Prior to the court decision granting the Cease
and Desist Order filed by CHED, petitioner filed
Complaint for Damages before the Court. Respondent
CHED then filed a Motion to Dismiss the Complaint for
damages. Petitioner filed Opposition to the Motion to
Dismiss. The trial court denied respondent CHED’s
motion to dismiss and issued a writ of preliminary
injunction in favor of petitioner. The trial court also
directed CHED to file its Answer to the decision within 15
days from the receipt of the Court Order – which was
August 15, 1998. On September 22, 1998, petitioner
filed Motion to Declare Respondent in Default pursuant
to Section 9, Section 3. On the same day, respondent
CHED filed for Motion for Extension of Time to File its
Answer until November 18, 1998 and submitted its
Answer on November 17, 1998. On November 11,
petitioner filed its Opposition to the Motion for Extension
of Time to File respondent’s Answer. The trial court
rendered its Decision and granted petitioner’s motion to
declare respondent CHED in Default.
Respondent CHED consequently filed with the
CA a petition for certiorari arguing that the RTC had
committed grave abuse of discretion in declaring
respondent CHED in default despite its Filing of an
Answer. The CA ruled that respondent CHED should not
have been declared in default, because its answer had
been filed long before the RTC ruled upon petitioner’s
Motion to declare respondent in default. Thus,
respondent had not obstinately refused to file an
Answer; on the contrary, its failure to do so on time was
due to excusable negligence.
ISSUE: Whether or not certiorari was the proper
remedy to assail the order declaring CHED in default.
HELD: The SC agreed with respondent CHED that
certiorari was the only plain, speedy and adequate
remedy in the ordinary course of law, because the
default Order had improvidently been issued.
The remedies available to a defendant declared
in default are as follows:
(1) a motion to set aside the order of default under
Section 3(b), Rule 9 of the Rules of Court, if the
default was discovered before judgment could be
rendered;
(2) a motion for new trial under Section 1(a) of Rule
37, if the default was discovered after judgment but
while appeal is still available;
(3) a petition for relief under Rule 38, if judgment
has become final and executory; and
(4) an appeal from the judgment under Section 1,
Rule 41, even if no petition to set aside the order of
default has been resorted to.
These remedies, however, are available only to
a defendant who has been validly declared in
default. Such defendant irreparably loses the right to
participate in the trial. On the other hand, a defendant
improvidently declared in default may retain and
exercise such right after the order of default and the
subsequent judgment by default are annulled, and the
case remanded to the court of origin. The former is
limited to the remedy set forth in section 2, paragraph 3
of Rule 41 of the pre 1997 Rules of Court, and can
therefore contest only the judgment by default on the
designated ground that it is contrary to evidence or
law. The latter, however, has the following options: to
resort to this same remedy; to interpose a petition for
certiorari seeking the nullification of the order of default,
even before the promulgation of a judgment by default;
or in the event that judgment has been rendered, to
have such order and judgment declared void.
In prohibiting appeals from interlocutory
orders, the law does not intend to accord executory
force to such writs, particularly when the effect would be
Page 106
Civil Procedure
ESGUERRA NOTES
to cause irreparable damage. If in the course of trial, a
judge proceeds without or in excess of jurisdiction, this
rule prohibiting an appeal does not leave the aggrieved
party without any remedy. In a case like this, a special
civil action of certiorari is the plain, speedy and
adequate remedy.
Hence, a petition for certiorari is available to
respondent CHED to assail the judgment by default on
the ground that it is intrinsically void for having been
rendered pursuant to a patently invalid order of default.
Rule 18
Pre-Trial
Nature and purpose
Pre-trial is a procedural device held prior to the trial for
the court to consider the following purposes:
1. The possibility of 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
admissions of facts and documents to avoid
unnecessary proof;
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 (Filioil
Marketing Corp. vs. Dy Pac & Co.,
G.R. No. 296636, 30 September
1982)
5. The limitation of the number of witnesses;
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;
8. The advisability or necessity of the suspending
the proceedings; and
9. Such other matters as may aid in the prompt
disposition of the cases. (Sec. 2, Rule 18)
Note: Pre-trial is mandatory in civil cases.
When
After the last pleading has been served and
filed, the pre-trial should already be conducted. It shall
be the duty of the plaintiff to promptly move ex parte
that the case be set for pre-trial. (Sec. 1, Rule 18)
The motion is to be filed within five (5) days
after the last pleading joining the issues has been
served and filed. (Administrative Circular No. 3-
99,January 15, 1999)
The “last pleading” need not to be literally
construed as one having been served and field. For
purposes of pre-trial, the expiration of the period for
filing of the last pleading is sufficient. (Sarmiento vs.
Juan, G.R. No. 56605, 28 January 1983)
LCK INDUSTRIES, INC. VS. PLANTERS DEV’T. BANK
(2007)
FACTS: Petitioner LCK is a domestic corporation duly
organized and existing as such under Philippine laws.
Respondent bank is a banking institution duly authorized
to engage in banking business under Philippine laws.
On 1 September 1995, petitioner LCK obtained
a loan from the respondent bank in the amount of
P3,000,000.00 as evidenced by two promissory notes.
As a security for the loan obligation, petitioners-spouses
Chiko and Elizabeth Lim executed a Real Estate
Mortgage over a parcel of land at Quezon City (Quezon
City property). Later on, to secure the same obligation,
another Real Estate Mortgage was executed over
another parcel of land located at Baguio City (Baguio
City property).
Subsequently, petitioner LCK incurred default
in its payment; thus, making the obligation due and
demandable. Several demands were thereafter made by
the respondent bank to no avail. On 13 October 1997, a
final letter-demand was sent by respondent bank to
petitioner LCK asking for the payment of its obligation in
the amount of P2,962,500.00. Such final demand
notwithstanding, petitioner LCK failed or refused to pay
its obligation.
Consequently, respondent bank caused the
extrajudicial foreclosure of the Baguio City property
which was sold at the public auction. Since the proceeds
of the foreclosed Baguio City property were not enough
to satisfy the entire loan obligation which amounted to
P2,962,500.00, respondent bank further caused the
extrajudicial foreclosure of the Quezon City property.
Prior to the auction sale of the Quezon City
property on 18 March 1998, petitioners, on 12 March
1998, filed with the RTC of Quezon City, Branch 81, an
action for Annulment of the Foreclosure of Mortgage and
Auction Sale of the Quezon City property with
Restraining Order/Preliminary Injunction and with
Damages.
Thereafter, the RTC conducted a pre-trial
conference. In the Pre-Trial Order dated 8 September
2000, the parties made admissions and stipulations.
On 18 April 2001, the parties agreed to submit
the case for the decision of the RTC based on the
stipulations and admissions made at the pre-trial
conference.
HELD: Pre-trial is an answer to the clarion call for the
speedy disposition of cases. Hailed as the most
important procedural innovation in Anglo-Saxon justice
in the nineteenth century, pre-trial is a device intended
to clarify and limit the basic issues between the parties.
It thus paves the way for a less cluttered trial and
resolution of the case. Pre-trial seeks to achieve the
following:
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;
Page 107
Civil Procedure
ESGUERRA NOTES
d. The possibility of obtaining stipulations or
admissions of facts and of documents to
avoid unnecessary proof;
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 or necessity of suspending
the proceedings; and
i. Such other matters as may aid in the
prompt disposition of the action.
The purpose of entering into a stipulation of
facts is to expedite trial and to relieve the parties and
the court as well of the costs of proving facts which will
not be disputed on trial and the truth of which can be
ascertained by reasonable inquiry. Its main objective is
to simplify, abbreviate and expedite the trial, or totally
dispense with it.
The parties themselves or their
representative with written authority from them are
required to attend in order to arrive at a possible
amicable settlement, to submit to alternative modes of
dispute resolution, and to enter into stipulations or
admissions of facts and documents. All of the matters
taken up during the pre-trial, including the stipulation of
facts and the admissions made by the parties, are
required to be recorded in a pre-trial order.
In the Pre-Trial Order dated 8 September
2000, the RTC defined the issues as follows: (1) whether
or not the petition was filed with the Office of the Clerk
of Court; (2) whether or not the extrajudicial foreclosure
of real estate mortgage by defendant bank was made in
accordance with the provisions of Act No. 3135; and (3)
whether or not the parties are entitled to their
respective claims for attorneys fees and damages.
Based on the admissions and stipulations
during the pre-trial conference and the issues defined by
the court a quo as embodied in the Pre-Trial Order, the
parties agreed to submit the case for the resolution of
the RTC. Both petitioners and respondent also
manifested that they would forego their respective
claims for attorneys fees, leaving solely the issue of the
validity of the foreclosure of mortgage and auction sale
for the RTCs disposition. However, in petitioners
Memorandum filed after the case was submitted for
resolution, petitioners raised the question of
overpayment, a new issue that was included neither in
their Complaint nor in the issues defined in the Pre-Trial
Order issued by the RTC.
Generally, pre-trial is primarily intended to
make certain that all issues necessary to the disposition
of a case are properly raised. Thus, to obviate the
element of surprise, parties are expected to disclose at
the pre-trial conference all issues of law and fact they
intend to raise at the trial. However, in cases in which
the issue may involve privileged or impeaching matters,
or if the issues are impliedly included therein or may be
inferable therefrom by necessary implication to be
integral parts of the pre-trial order as much as those
that are expressly stipulated, the general rule will not
apply.
The case at bar falls under this particular
exception. Upon scrupulous examination of the Pre-Trial
Order dated 8 September 2000, it can be deduced that
the parties stipulated that the remaining sum of
petitioner LCKs obligation as of 13 October 1997 was
P2,962,500.00. In the same Pre-Trial Order, the parties
likewise stipulated that the Baguio City property was
sold at the public auction for P2,625,000.00 and the
Quezon City property for P2,231,416.67. On both
occasions, respondent bank emerged as the highest
bidder. By applying simple mathematical operation, the
mortgaged properties were purchased by the respondent
at the public auctions for P4,856,416.67; thus, after
deducting therefrom the balance of petitioner LCKs
obligation in the amount of P2,962,500.00, an excess in
the sum of P1,893,916.67 remains.
Requirements for appearance
It shall be the duty of both parties and their
counsels to appear at the pre-trial. The non-
appearance of a party may be excused only if:
1. A valid cause is shown therefor; and
2. A representative shall appear in his behalf fully
authorized in writing to:
a. Enter into amicable settlement;
b. Submit to alternative modes of dispute
resolution; and
c. Enter into stipulations or admissions of
facts and of documents. (Sec. 4, Rule 18)
Procedure
It shall be the duty of the plaintiff to promptly
move ex parte that the case be set for pre-trial. (Sec. 1,
Rule 18)
Under the Supreme Court Guidelines on Pre-
Trial and Discovery (A.M. No. 03-1-09-SC, effective 16
August 2004), if the plaintiff fails to file the motion to
set the case for pre-trial, the clerk of court shall issue a
notice of pre-trial.
Notice
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. (Sec. 3, Rule
18)
Pre-trial brief required (Sec. 6)
The parties shall file with the court and serve
on the adverse party, in such manner as shall ensure their
receipt thereof at least three (3) days before the date of
the pre-trial, their respective pre-trial briefs.
Contents of the pre-trial:
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
stipulation of facts;
Page 108
 Civil Procedure
ESGUERRA NOTES

3. The issues to be tried or resolved; Effect of failure to appear

4. The documents or exhibits to be presented
stating the purpose thereof; Sec. 5. Effect of failure to appear.
5. A manifestation of their having availed or their
intention to avail themselves of discovery The failure of the plaintiff to appear when so
procedures or referral to commissioners; and required pursuant to the next preceding section shall be
6. The number and names of the witnesses, and the cause for dismissal of the action. The dismissal shall be
substance of their respective testimonies. with prejudice, unless otherwise ordered by the court. A
similar failure on the part of the defendant shall be
Failure to file pre-trial brief shall have the cause to allow the plaintiff to present his evidence ex
same effect as failure to appear at the pre-trial. parte and the court to render judgment on the basis
thereof.
No evidence shall be allowed to be presented
and offered during the trial in support of party’s
CALALANG VS. CA (1993)
evidence–in-chief other that those that had been earlier
identified and pre-marked during the pre-trial, except if
Facts: On April 29, 1980, respondent Filipinas
allowed by the court for good cause shown. (A.M. No.
Manufacturers Bank filed a complaint for collection of a
03-1-09-SC, July 13, 2004)
sum of money against petitioner Conrado Calalang and 3
other defendants namely, Hugo M. Arca, Rio Arturo
Record or order of pre-trial
Salceda and the Acropolis Trading Corporation with the
The pre-trial order shall be issued within ten
Court of First Instance of Rizal, 7th Judicial District,
(10) days after the termination of the pre-trial (A.M. No.
Branch 36, Makati under Judge Segundo M. Zosa.
03-1-09-SC).
Petitioner, after having been served with
This order recites in detail the following:
summons on May 19, 1980, filed a Motion to Dismiss on
1. Matters taken up in the conference;
June 2, 1980. The other summoned defendant, Hugo M.
2. Actions taken thereon;
Arca, filed a Motion for Bill of Particulars on June 5,
3. Amendments allowed to the pleadings;
1980. The two other defendants namely, the Acropolis
and
Trading Corporation and Rio Arturo Salceda were also
4. Agreements or admissions made by the
summoned but only a clerk-employee of the Acropolis
parties as to any of the matters
Trading Corporation received the summons while Arturo
considered.
R. Salceda was no longer residing at his given address.
Should the action proceed to trial, the pre-trial order:
On November 16, 1987, the trial court issued
1. Defines and limits the issues to be tried;
an Order setting the
pre-trial of the case for January 7,
and
2. Controls the subsequent course of the 1988 at 8:30 a.m.
action except if it is modified before trial
to prevent manifest injustice. At the pre-trial conference, respondent bank's
counsel arrived 15 minutes late or at 8:45 a.m..
The contents of the pre-trial order shall control the However, the case had already been dismissed. Thus, in
the Order of January 7, 1988, the court declared:
subsequent course of the action, unless:
1. Modified before trial to prevent manifest
For failure of plaintiff's counsel to appear
injustice (Sec. 7, Rule 18).
inspite of notice and considering that this
2. Issues that are impliedly included among
case has been pending for seven (7)
those listed or that may be inferable from
years, without plaintiff having taken
those listed by necessary implication
positive steps to prosecute the same, it is
which are as much integral parts of the
hereby DISMISSED pursuant to Section 3,
pre-tral order as those expressly listed
Rule 17, Rules of Court. Defendants'
(Philippine Export and Foreign Loan
counterclaim is likewise dismissed.
Guarantee Corporation vs. Amalgamated
Management and Development
On January 12, 1988, counsel for the
Corporation, G.R. No. 177729, 28
respondent bank filed a Motion for Reconsideration of
September 2011).
the order of dismissal citing as reason for his late arrival
3. Sec. 5, Rule 10 of the Rules of Court
"the unusually heavy traffic he encountered along
which allows the trial of issues not raised
Kamias Road in Quezon City, which was caused by a
in the pleadings but not objected to or
stalled jeepney along the main thoroughfare." The
tried with the express or implied consent
motion was denied on January 26, 1988.
of the parties, and permits an amendment
of the pleadings to conform to the
evidence (Son vs. Son, G.R. No. 73077, Ruling: The pre-trial conference scheduled for
29 December 1995). January 8, 1987 was not premature. A pre-trial cannot
validly be held until the last pleading has been filed,
A party is deemed to have waived the right to which last pleading may be the plaintiff's reply, except
where the period to file the last pleading has lapsed. 15
invoke stipulations in the pre-trial order if he failed to
The period to appear and file the necessary pleading
object the introduction of evidence outside of the pre-
having expired on the Acropolis Trading Corporation, the
trial order, as well as in cross-examining the witness in
lower court can direct that a pre-trial conference be held
regard to said evidence.
among the answering defendants. However, though it is
within the discretion of the trial court to declare a party
non-suited for non-appearance in the pre-trial

Page 109
Civil Procedure
ESGUERRA NOTES
conference, such discretion must not be abused. The
precipitate haste of the lower court in declaring the
respondent bank non-suited was uncalled for and
deserved a second look. Considering the fact that the
counsel for the plaintiff/respondent bank did arrive for
the pre-trial conference, though a bit late and that
counsel for the defendant was himself also late, the trial
court should have called the case again. An admonition
to both counsels to be more prompt in appearing before
the Court as scheduled would have sufficed, instead of
having dismissed the complaint outright.
Unless a party's conduct is so negligent,
irresponsible, contumacious, or dilatory as to provide
substantial grounds for dismissal for non-appearance,
the courts should consi
der lesser sanctions which would still amount
into achieving the desired end.
To be a sufficient ground for dismissal, delay
must not only be lengthy but also unnecessary and
dilatory resulting in trifling of judicial processes.
On plaintiff
Sec. 3. Dismissal due to fault of plaintiff.
If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his evidence in
chief on the complaint, or to prosecute his action for an
unreasonable length of time, or to comply with these
Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the
court's own motion, without prejudice to the right of the
defendant to prosecute his counterclaim in the same or
in a separate action. This dismissal shall have the effect
of an adjudication upon the merits, unless otherwise
declared by the court.
SPOUSES CORPUZ VS. CITIBANK (2009)
FACTS: Azucena Corpuz (Azucena) was a cardholder of
Citibank Mastercard No. 5423-3925-5788-2007 and
Citibank VISA Card No. 4539-7105-2572-2001 both
issued by Citibank, N.A. (Citibank). Each card had a
credit limit of P40,000.00. In view of her then impending
official business trip to Europe, Azucena paid in full on
December 7, 1998 her monthly chargeson both credit
cards via checks and also made advance check
payments of P20,000.00 on December 8, 1998 for her
VISA Card, and another P20,000.00 for her Mastercard
on December 14, 1998, to cover future transactions.
While in Italy on December 9, 1998,
Azucena dined at a restaurant. To settle her bill of
46,000 liras, she presented her VISA Card, but to her
surprise and embarrassment, the restaurant did not
honor it. She then brought out her Mastercard which the
restaurant honored. On even date, Azucena incurred a
bill of 378,000 liras at a shop which she intended to
charge to her credit cards. This time, both her VISA and
Mastercard were not honored, drawing her to pay the
bill in cash.
Informed of the incidents via overseas
telephone calls to Manila, Azucenas husband Renato
Corpuz (Renato) inquired why his wifes credit cards
were not honored, to which Citibank explained that her
check-payments had not yet been cleared at the time.
Upon her return to the country, Azucena
wrote Citibank on January 13, 1999 informing it that her
credit cards had not been honored and demanding the
refund of her overseas call expenses amounting to
132,000 liras or P3,175.00 at the time. Citibank did not
respond to the letter, however, drawing Azucena to
write Citibank for the cancellation of the cards].
Citibank still sent billing statements to
Azucena, however, charging her interest charges and
late payment penalties. Only after Azucenas counsel
informed Citibank of imminent legal remedieson her part
did Citibank indulge Azucena with a written explanation
why her credit cards were not honored in Italy.
Azucena and Renato (hereafter the
spouses) later filed on November 12, 1999 a complaint
for damages against Citibank at the Regional Trial Court
of Las Pias City.
After an exchange of pleadings ─ reply,
rejoinder and sur-rejoinder ─ by the parties, and the
issues having been joined, the trial court set the case for
pre-trial conferenceon May 5, 2003 during which the
spouses and their counsel failed to appear, despite
notice. On Citibanks counsels motion, the trial court, by
Orderof even date, dismissed the spouses Complaint and
directed Citibank to present evidence on its Compulsory
Counterclaim.
The spouses moved for the reconsideration
of the trial courts May 5, 2003 Order, explaining that
their failure to attend the pre-trial conference was due
to the negligenceof their counsel who failed to inform
[them]
about [the pre-trial] and include the same in his
calendar because . . . the pre-trial was still far away.
The spouses motion for reconsideration was denied by
Order of September 17, 2003
HELD: Section 5of Rule 18 provides that the dismissal
of an action due to the plaintiffs failure to appear at the
pre-trial shall be with prejudice, unless otherwise
ordered by the court. In this case, the trial court
deemed the plaintiffs-herein spouses as non-suited and
ordered the dismissal of their Complaint. As the
dismissal was a final order, the proper remedy was to
file an ordinary appeal and not a petition for certiorari.
The spouses petition for certiorari was thus properly
dismissed by the appellate court.
Procedural infirmities aside, this Court took
a considered look at the spouses excuse to justify their
non-appearance at the pre-trial but found nothing
exceptional to warrant a reversal of the lower courts
disposition thereof.
Counsel for the spouses admit having failed
to inform his clients of the scheduled pre-trial because
he forgot to note the same in his calendar and
eventually forgot about it due to heavy workload. The
spouses eventually admitted too having received the
notice of pre-trial. Azucena, who is a lawyer herself,
advanced the reason that she forgot about the
scheduled pre-trial owing to her then forthcoming
retirement at the Office of the Solicitor General to thus
press her to accomplish her assigned work including
winding up all administrative matters in the office prior
to her leaving.
While Section 4 of Rule 18 of the Rules of
Court allows as an exception a valid cause for the non-
appearance of a party at the pre-trial, the instances
cited by the spouses and their counsel hardly constitute
compelling exigencies or situations which warrant
occasional flexibility of litigation rules.
Page 110
Civil Procedure
ESGUERRA NOTES
On defendant, compare with default
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.
CITIBANK, N.A. VS. CHUA (1993)
Facts: On September 4 of 1985, he (private respondent
Crescencio Velez) deposited his unfunded personal
checks with his current account with the petitioner. But
prior to depositing said checks, he would present his
personal checks to a bank officer asking the latter to
have his personal checks immediately credited as if it
were a cash deposit and at the same time assuring the
bank officer that his personal checks were fully funded.
Having already gained the trust and confidence of the
officers of the bank because of his past transactions, the
bank's officer would always accommodate his request.
After his requests are granted which is done by way of
the bank officer affixing his signature on the personal
checks, private respondent Cresencio Velez would then
deposit his priorly approved personal checks to his
current account and at the same time withdraw sums of
money from said current account by way of petitioner
bank's manager's check. Private respondent would then
deposit petitioner bank's manager's check to his various
current accounts in other commercial banks to cover his
previously deposited unfunded personal checks with
petitioner bank. Naturally, petitioner bank and its
officers never discovered that his personal check
deposits were unfunded. On the contrary, it gave the
petitioner bank the false impression that private
respondent's construction business was doing very well
and that he was one big client who could be trusted.
This deceptive and criminal scheme he did every
banking day without fail from September 4, 1985 up to
March 11, 1986. The amounts that he was depositing
and withdrawing during this period (September 4, 1985
to March 11, 1986) progressively became bigger. It
started at P46,000.00 on September 4, 1985 and on
March 11, 1986 the amount of deposit and withdrawal
already reached over P3,000,000.00. At this point in
time (March 11, 1986), the private respondent
Cresencio Velez presumably already feeling that sooner
or later he would be caught and that he already wanted
to cash in on his evil scheme, decided to run away with
petitioner's money. On March 11, 1986, he deposited
various unfunded personal checks totalling
P3,095,000.00 and requested a bank officer that the
same be credited as cash and after securing the
approval of said bank officer, deposited his various
personal checks in the amount of P3,095,000.00 with his
current account and at the same time withdrew the sum
of P3,244,000.00 in the form of petitioner's manager's
check. Instead of using the proceeds of his withdrawals
to cover his unfunded personal checks, he ran away with
petitioner bank's money. Thus, private respondent
Cresencio Velez's personal checks deposited with
petitioner bank on March 11, 1986 in the total aggregate
amount of P3,095,000.00 bounced. The checks bounced
after said personal checks were made the substantial
basis of his withdrawing the sum of P3,244,000.00 from
his current account with petitioner bank."
Subsequently, on August 19, 1986, petitioner
bank filed a criminal complaint against private
respondents for violation of Batas Pambansa Blg. 22
(Bouncing Checks Law) and estafa (six counts) under
Article 315 par. 2(d) of the Revised Penal Code. On April
28, 1988, the investigating fiscal recommended the
filing of an information against private respondents for
violations of the mentioned laws.
On June 13, 1989, petitioner bank submitted
its answer to the complaint filed by private respondents.
In the Order dated February 20, 1990, the case was set
for pre-trial on March 30, 1990 and petitioner bank was
directed to submit its pre-trial brief at least 3 days
before the pre-trial conference. Petitioner bank only filed
its pre-trial brief on March 30, 1990.
On March 30, 1990, the date of the pre-trial
conference, counsel for petitioner bank appeared,
presenting a special power of attorney executed by
Citibank officer Florencia Tarriela in favor of petitioner
bank's counsel, the J.P. Garcia & Associates, to
represent and bind petitioner bank at the pre-trial
conference of the case at bar.
Inspite of this special power of attorney,
counsel for private respondents orally moved to declare
petitioner bank as in default on the ground that the
special power of attorney was not executed by the Board
of Directors of Citibank. Petitioner bank was then
required to file a written opposition to this oral motion to
declare it as in default. In said opposition petitioner
bank attached another special power of attorney made
by William W. Ferguson, Vice President and highest
ranking officer of Citibank, Philippines, constituting and
appointing the J.P. Garcia & Associates to represent and
bind the BANK at the pre-trial conference and/or trial of
the case of "Cresencio Velez, et al. vs. Citibank, N.A.".
In an Order dated April 23, 1990, respondent judge
denied private respondents' oral motion to declare
petitioner bank as in default and set the continuation of
the pre-trial conference for May 2, 1990.
On the scheduled pre-trial conference, private
respondents reiterated, by way of asking for
reconsideration, their oral motion to declare petitioner
bank as in default for its failure to appear through an
authorized agent and that the documents presented are
not in accordance with the requirements of the law.
On August 15, 1990, respondent judge issued
an order declaring petitioner bank as in default.
HELD: We reiterate the previous admonitions of this
Court against "precipitate orders of default as these
have the effect of denying the litigant the chance to be
heard. While there are instances, to be sure, when a
party may be properly defaulted, these should be the
exceptions rather than the rule and should be allowed
only in clear cases of an obstinate refusal or inordinate
neglect to comply with the orders of the court. Absent
such a showing, the party must be given every
reasonable opportunity to present his side and to refute
the evidence of the adverse party in deference to due
process of law".
Considering further that petitioner bank has a
meritorious defense and that the amount in contest is
substantial, the litigants should be allowed to settle their
claims on the arena of the court based on a trial on the
merits rather than on mere technicalities.
Page 111
Civil Procedure
ESGUERRA NOTES
Rule 20
Calendar of Cases
Calendar (Rule 20, Sec. 1)
 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.
Preferences (Rule 20, Sec. 1)
 Preference shall be given to:
o habeas corpus cases;
o election cases;
o special civil actions; and
o those so required by law.
Assignment of cases (Rule20, Sec. 2)
 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.
Rule 21
Computation of Time
How to compute time (Rule 22, Section 1)
 In computing any period of time prescribed or
allowed by the Rules of Court, 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.
Effect of interruption (Rule 22, Section 2)
 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.
Rule 30
Trial
Notice of Trial (Rule 30, Section 1)
 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 five (5) days before such
date.
Adjournments and postponements (Rule 30,
Section 2)
 A court may adjourn a trial from day to day,
and to any stated time, as the expeditious and
convenient transaction of business may
require, but shall have no power to adjourn a
trial for a longer period than one month for
each adjournment nor more than three months
in all, except when authorized in writing by the
Court Administrator, Supreme Court.
Absence of Evidence (Rule 30, Section 3)
 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 due diligence has
been used to procure it.
 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.
Illness of party or counsel (Rule 30, Section 4)
 A motion to postpone a trial on the ground of
illness of a party or counsel may be granted if:
a) it appears upon affidavit or sworn
certification that the presence of such
party or counsel at the trial is
indispensable; and
b) that the character of his illness is
such as to render his non-attendance
excusable.
Subpoena (Rule 21)
 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 under the laws of the
Philippines, or for taking of his deposition (Rule
21, Sec. 1).
 SUBPOENA DUCES TECUM - is a process
directed to a person requiring him to
bring with him at the hearing or trial of
an action any books, documents, or
other things under his control.
 SUBPOENA AD TESTIFICANDUM – is a
process directed to a person requiring
him to attend and testify at the hearing
or the trial of the action, or at any
investigation conducted by the
competent authority, or for the taking
of his deposition.
Page 112
Civil Procedure
ESGUERRA NOTES
 Service of Subpoena (Rule 21, Section 6)
 Service of subpoena shall be made in the
same manner as personal or substituted
service of summons.
 The original shall be exhibited and a copy
thereof delivered to the person on whom
it is served, tendering to him the fees for
one day's attendance and the kilometrage
allowed by these Rules, except that, when
a subpoena is issued by or on behalf of
the Republic of the Philippines or an
officer or agency thereof, the tender need
not be made.
 The service must be made so as to allow
the witness a reasonable time for
preparation and travel to the place of
attendance.
 If the subpoena is duces tecum, the
reasonable cost of producing the books,
documents or things demanded shall also
be tendered.
 Compelling attendance (Rule 21, Sec. 8)
 In case of failure of a witness to attend,
the court or judge issuing the subpoena,
upon proof of the service thereof and of
the failure of the witness, may issue a
warrant to the sheriff of the province, or
his deputy, to arrest the witness and bring
him before the court or officer where his
attendance is required, and the cost of
such warrant and seizure of such witness
shall be paid by the witness if the court
issuing it shall determine that his failure
to answer the subpoena was willful and
without just cause.
 Exceptions (Rule 21, Sec. 10): This rule
shall not apply to:
a) 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
b) a detention prisoner if no
permission of the court in which
his case is pending was obtained.
 Contempt (Rule 21, Sec. 9)
 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.
 Exceptions (Rule 21, Sec. 10): This rule
shall not apply to:
c) 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
d) a detention prisoner if no permission
of the court in which his case is
pending was obtained.
 Quashing a subpoena (Rule 21, Section 4)
 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.
Conduct
Order of Trial (Rule 30, Section 5)
 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:
a. The plaintiff shall adduce evidence in support
of his complaint;
b. The defendant shall then adduce evidence in
support of his defense, counterclaim, cross-
claim and third-party complaints;
c. The third-party defendant if any, shall adduce
evidence of his defense, counterclaim, 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 counterclaim 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 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.
Agreed statement of facts (Rule 30, Section 6)
 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.
Page 113
Civil Procedure
ESGUERRA NOTES
 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.
 During the Pre-Trial Conference, the court shall
consider the possibility of obtaining stipulations
or admissions of facts and of documents to
avoid unnecessary proof (Rule 18, Section 2
(d).
Statement of judge (Rule 30, Section 7)
 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.
Suspension of Actions (Rule 30, Section 8)
 The suspension of actions shall be governed by
the provisions of the Civil Code.
 The Civil Code provides:
Article 2030. 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 compromise but
the other party refused the offer.
The duration and terms of the
suspension of the civil action or proceeding and
similar matters shall be governed by such
provisions of the rules of court as the Supreme
Court shall promulgate. Said rules of court shall
likewise provide for the appointment and duties
of amicable compounders.
Article 2035. No compromise upon the following
questions shall be valid:
(1) The civil status of persons;
(2) The validity of a marriage or a legal
separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
Duty of judge to receive evidence and power to
delegate to clerk of court (Rule 30, Sec. 9)
 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 have 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.
Trial by commissioner (Rule 32)
 Reference by consent (Rule 32, Sec. 1)
 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.
 The word "commissioner" includes a
referee, an auditor and an examiner.
 Reference ordered on motion (Rule 32, Sec. 2)
 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.
 Order of reference; powers of the
commissioner (Rule 32, Sec. 3)
 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 other
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.
Consolidation of trial (Rule 31, Sec. 1)
 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 costs or delay.
Page 114
Civil Procedure
ESGUERRA NOTES
Philippine National Bank v. Gotesco Tyan Ming
Development, Inc. (2009)
Facts: The Philippine National Bank (PNB) extended
credit facilities worth P800,000,000.00 to respondent
Gotesco Tyan Ming Development, Inc. (GOTESCO). To
secure the credit facility, GOTESCO executed a Mortgage
Trust Indenture over a parcel of land in Pasig City.
GOTESCO failed to pay the amount in full. Accordingly,
PNB instituted foreclosure proceedings on the GOTESCO
property.
The one-year redemption period expired
without GOTESCO exercising its right of redemption.
Accordingly, PNB consolidated the title in its name. PNB
filed an Ex-Parte Petition for Issuance of Writ of
Possession with the RTC of Pasig City. The case was
docketed as LRC Case No. R-6695-PSG and was raffled
to Branch 155. GOTESCO then filed a motion to
consolidate LRC Case No. R-6695-PSG with its case for
annulment of foreclosure proceedings, specific
performance and damages against PNB, docketed as
Civil Case No. 68139, and pending with RTC Branch 161.
The Hon. Judge Luis R. Tongco of Branch 155 issued an
Order granting the motion for consolidation.
PNB filed a motion for reconsideration with RTC
Branch 161 but it was denied. PNB then filed a petition
for certiorari with the CA. CA rendered the assailed
Decision dismissing the petition. PNB contends that the
consolidation of its petition for issuance of a writ of
possession with GOTESCOs case for annulment of
foreclosure proceedings has seriously prejudiced its right
to a writ of possession. It points that after the
consolidation of title in its name, when GOTESCO failed
to redeem the property, entitlement to a writ of
possession becomes a matter of right. Moreover, a
petition for issuance of a writ of possession is a non-
litigious proceeding; hence, it must not be consolidated
with a civil action for the annulment of foreclosure
proceedings, specific performance, and damages, which
is litigious in nature.
Issue: Whether or not the lower courts properly granted
GOTESCO’s motion for consolidation.
Held: No. The legal basis of an order of consolidation of
two (2) cases is Section 1, Rule 31 of the Rules of Civil
Procedure, which states:
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 costs or delay.
In Teston v. Development Bank of the Philippines, we
laid down the requisites for the consolidation of cases,
viz.:
A court may order several actions pending
before it to be tried together where they arise from
the same act, event or transaction, involve the
same or like issues, and depend largely or
substantially on the same evidence, provided that
the court has jurisdiction over the cases to be
consolidated and that a joint trial will not give one
party an undue advantage or prejudice the
substantial rights of any of the parties.
The rule allowing consolidation is designed to
avoid multiplicity of suits, to guard against oppression
or abuse, to prevent delays, to clear congested
dockets, and to simplify the work of the trial court; in
short, the attainment of justice with the least expense
and vexation to the parties- litigants. Thus, in
Philippine Savings Bank v. Maalac, Jr., we disregarded
the technical difference between an action and a
proceeding, and upheld the consolidation of a petition
for the issuance of a writ of possession with an
ordinary civil action in order to achieve a more
expeditious resolution of the cases.
But in the instant case, the consolidation of
PNBs petition for a writ of possession with GOTESCOs
complaint for annulment of foreclosure proceeding
serves none of the purposes cited above. On the
contrary, it defeated the very rationale of consolidation.
The record shows that PNBs petition was filed on May
26, 2006, and remains pending after three (3) years,
despite the summary nature of the petition. Obviously,
the consolidation only delayed the issuance of the
desired writ of possession. Further, it prejudiced PNBs
right to take immediate possession of the property and
gave GOTESCO undue advantage, for GOTESCO
continues to possess the property during the pendency
of the consolidated cases, despite the fact that title to
the property is no longer in its name. It is clear that
the motion for consolidation was filed merely to
frustrate PNBs right to immediate possession of the
property.
Moreover, jurisprudence teems with
pronouncements that, upon the expiration of the
redemption period, the right of the purchaser to the
possession of the foreclosed property becomes
absolute. Thus, the mere filing of an ex parte motion
for the issuance of a writ of possession would suffice,
and there is no bond required since possession is a
necessary consequence of the right of the confirmed
owner. It is a settled principle that a pending action for
annulment of mortgage or foreclosure sale does not
stay the issuance of the writ of possession.
Indisputably, the consolidation of PNBs petition with
GOTESCOs complaint runs counter to this well
established doctrine.
Compare with:
Rule 2, Section 5. Joinder of causes of action. — A
party may in one pleading assert, in the alternative or
otherwise, as many causes of action as he may have
against an opposing party, subject to the following
conditions:
a. The party joining the causes of action shall
comply with the rules on joinder of parties;
b. The joinder shall not include special civil actions
or actions governed by special rules;
c. Where the causes of action are between the
same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the
Regional Trial Court provided one of the causes of
action falls within the jurisdiction of said court
and the venue lies therein; and
d. Where the claims in all the causes action are
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.
Page 115
Civil Procedure
ESGUERRA NOTES
Rule 3, Section 6. Permissive joinder of parties. — All
persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise
provided in these Rules, join as plaintiffs or be joined as
defendants in one complaint, where any question of law
or fact common to all such plaintiffs or to all such
defendants may arise in the action; but the court may
make such orders as may be just to prevent any plaintiff
or defendant from being embarrassed or put to expense
in connection with any proceedings in which he may
have no interest.
Severance of trial
1997 Rules on Civil Procedure, 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,
counterclaim, or third-party complaint, or of any
separate issue or of any number of claims, cross-claims,
counterclaims, third-party complaints or issues
Swagman Hotels and Travel, Inc. v. Court of
Appeals (2005)
Facts: Petitioner Swagman Hotels and Travel, Inc.,
through Atty. Leonor L. Infante and Rodney David
Hegerty, its president and vice-president, respectively,
obtained from private respondent Neal B. Christian loans
evidenced by three promissory notes dated 7 August
1996, 14 March 1997, and 14 July 1997. The three
promissory notes were for the amount of P50,000 each
and uniformly provided for (1) a term of three years; (2)
an interest of 15 % per annum, payable quarterly; and
(3) the repayment of the principal loans after three
years from their respective dates. In December 1997,
the parties entered into a renegotiation of the three
promissory notes resulting in the reduction of the
interest from 15% to 6% per annum. In a letter dated
16 December 1998, Christian informed the petitioner
corporation that he was terminating the loans and
demanded from the latter payment in the total amount
of US$150,000 plus unpaid interests.
On 2 February 1999, private respondent Christian filed a
complaint for a sum of money and damages against the
petitioner corporation, Hegerty, and Atty. Infante. The
petitioner corporation, together with its president and
vice-president, filed an Answer raising as a defense the
lack of cause of action, among others. According to
them, Christian had no cause of action because the
three promissory notes were not yet due and
demandable.
During the pendency of the case, two of the promissory
notes with due dates of 7 August 1999 and 14 March
2000 matured. The trial court rendered a decision on 5
May 2000 declaring the first two promissory notes dated
7 August 1996 and 14 March 1997 as already due and
demandable and ordered the payment of the amount
due plus unpaid interests. While conceding that at the
time the complaint was filed, none of the promissory
notes was due and demandable, the trial court ruled
that under Section 5 of Rule 10 of the 1997 Rules of
Civil Procedure, a complaint which states no cause of
action may be cured by evidence presented without
objection. Thus, even if the plaintiff had no cause of
action at the time he filed the instant complaint, as
defendants obligation are not yet due and demandable
then, he may nevertheless recover on the first two
promissory notes in view of the introduction of evidence
showing that the obligations covered by the two
promissory notes are now due and demandable. The
Court of Appeals affirmed the ruling in toto.
Issue: Whether or not a complaint that lacks a cause of
action at the time it was filed can be cured by the
accrual of a cause of action during the pendency of the
case.
Held: No. At the time the complaint was filed with the
trial court on 2 February 1999, none of the three
promissory notes was due yet; although, two of the
promissory notes with the due dates of 7 August 1999
and 14 March 2000 matured during the pendency of the
case with the trial court. Despite its finding that the
petitioner corporation did not violate the modified terms
of the three promissory notes and that the payment of
the principal loans were not yet due when the complaint
was filed, the trial court did not dismiss the complaint,
citing Section 5, Rule 10 of the 1997 Rules of Civil
Procedure, which reads:
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.
The lower court’s interpretation of Section 5, Rule 10 of
the 1997 Rules of Civil Procedure is erroneous.
Amendments of pleadings are allowed under Rule 10 of
the 1997 Rules of Civil Procedure in order that the actual
merits of a case may be determined in the most
expeditious and inexpensive manner without regard to
technicalities, and that all other matters included in the
case may be determined in a single proceeding, thereby
avoiding multiplicity of suits. Section 5 applies to
situations wherein evidence not within the issues raised
in the pleadings is presented by the parties during the
trial, and to conform to such evidence the pleadings are
subsequently amended on motion of a party. Thus, a
complaint which fails to state a cause of action may be
cured by evidence presented during the trial.
However, the curing effect under Section 5 is
applicable only if a cause of action in fact exists at
the time the complaint is filed, but the complaint is
defective for failure to allege the essential facts.
For example, if a complaint failed to allege the
fulfillment of a condition precedent upon which the
cause of action depends, evidence showing that such
condition had already been fulfilled when the complaint
was filed may be presented during the trial, and the
complaint may accordingly be amended thereafter. It
thus follows that a complaint whose cause of action has
Page 116
Civil Procedure
ESGUERRA NOTES
not yet accrued cannot be cured or remedied by an
amended or supplemental pleading alleging the
existence or accrual of a cause of action while the case
is pending. Such an action is prematurely brought and
is, therefore, a groundless suit, which should be
dismissed by the court upon proper motion seasonably
filed by the defendant. As this Court eloquently said in
Surigao Mine Exploration Co., Inc. v. Harris:
It is a rule of law to which there is, perhaps, no
exception, either at law or in equity, that to recover at
all there must be some cause of action at the
commencement of the suit…unless the plaintiff has a
valid and subsisting cause of action at the time his
action is commenced, the defect cannot be cured or
remedied by the acquisition or accrual of one while the
action is pending, and a supplemental complaint or an
amendment setting up such after-accrued cause of
action is not permissible.
Rule 33
Demurrer to Evidence
Republic vs. Tuvera (2007)
Facts: The Philippine Commission on Good Government
(PCGG), in behalf of the Republic, filed before the
Sandiganbayan a Complaint against Juan and Victor
Tuvera, seeking to recover funds allegedly acquired by
said parties in flagrant breach of trust and fiduciary
obligations with grave abuse of right and power in
violation of the Constitution and the laws of the Republic
of the Philippines. In particular, the Complaint alleged
that Juan Tuvera, as Presidential Executive Assistant of
President Marcos, took advantage of his relationship to
influence upon and connection with the President by
engaging in a scheme to unjustly enrich himself at the
expense of the Republic and of the Filipino people,
specifically, by securing TLA No. 356 on behalf of Twin
Peaks despite existing laws expressly prohibiting the
exportation of mahogany of the narra species and Twin
Peaks’ lack of qualification to be a grantee thereof for
lack of sufficient logging equipment to engage in the
logging business.
In their Answer, respondents Victor Tuvera and
Twin Peaks claimed that Twin Peaks was awarded TLA
No. 356 only after its articles of incorporation had been
amended enabling it to engage in logging operations,
that the Republic’s reference to Chinese operations and
revenue of approximately P45 million were merely
imagined, and that the PCGG has no statutory authority
to institute the action.
The trial ensued. After the Republic rested its
case, with leave of court, respondents filed a Demurrer
to Evidence. Respondents argued that the Republic
failed to present sufficient legal affirmative evidence to
prove its claim. In particular, respondents’ demurrer
contends that the memorandum (Exh. B) and TLA No.
356 are not "legal evidence" because "legal evidence" is
not meant to raise a mere suspicion or doubt.
Respondents also claim that income tax returns are not
sufficient to show one’s holding in a corporation.
Respondents also cited the factual antecedents
culminating with the Court’s decision in Felipe Ysmael,
Jr. & Corp., Inc. v. Sec. of Environment and Natural
Resources.
The Republic filed a Manifestation, contending
that the demurrer is not based on the insufficiency of its
evidence but on the strength of the evidence of
respondents as shown by their own exhibits.
In its Resolution dated 23 May 2001, the
Sandiganbayan sustained the demurrer to evidence and
referred to the decision of this Court in Ysmael in
holding that res judicata applies.
Issue: Whether or not the Sandiganbayan correctly
sustained the demurrer to evidence.
Held: No. The Supreme Court noted that the
Sandiganbayan justified the grant of demurrer with res
judicata as rationale. Res judicata is an inappropriate
ground for sustaining a demurrer to evidence, even as it
stands as a proper ground for a motion to dismiss. A
demurrer may be granted if, after the presentation of
plaintiff’s evidence, it appears upon the facts and the
law that the plaintiff has shown no right to relief. In
contrast, the grounds for res judicata present
themselves even before the presentation of evidence,
and it should be at that stage that the defense of res
judicata should be invoked as a ground for dismissal.
Properly speaking, the movants for demurral who wish
to rely on a controlling value of a settled case as a
ground for demurrer should invoke the ground of stare
decisis in lieu of res judicata.
Distinguished from motion to dismiss for failure to
state a cause of action (Rule 16, Sec. 1 [g])
The Supreme Court distinguished a motion to
dismiss for failure of the complainant to state a cause of
action from a motion to dismiss based on lack of cause
of action.
1. The first [situation where the complaint does
not alleged cause of action] is raised in a motion to
dismiss under Rule 16 before a responsive pleading is
filed and can be determined only from the allegations
in the initiatory pleading and not from evidentiary or
other matter aliunde. The second [situation where the
evidence does not sustain the cause of action alleged]
is raised in a demurrer to evidence under Rule 33
after the plaintiff has rested his case and can be
resolved only on the basis of the evidence he has
presented in support of his claim. (Republic vs.
Tuvera, id., citing Domondon v. Lopez, 383 SCRA
376).
2. The first does not concern itself with the truth
and falsity of the allegations while the second arises
precisely because the judge has determined the truth
and falsity of the allegations and has found the
evidence wanting. (Id.)
3. A motion to dismiss based on lack of cause of
action is filed by the defendant after the plaintiff has
presented his evidence on the ground that the latter
has shown no right to the relief sought. While a
motion to dismiss under Rule 16 is based on
preliminary objections which can be ventilated before
the beginning of the trial, a motion to dismiss under
Rule 33 is in the nature of a demurrer to evidence on
the ground of insufficiency of evidence and is
presented only after the plaintiff has rested his case.
(Id.)
Page 117
Civil Procedure
ESGUERRA NOTES
4. If a motion to dismiss under Rule 16 is
DENIED, the defendant may file his responsive
pleading. Under Rule 33, the defendant may present
his evidence. (Riano, p. 399)
5. If a motion to dismiss under Rule 16 is
GRANTED, the complaint may be refiled, depending
on the ground for dismissal. In Rule 33, the complaint
may not be refiled, and the remedy of the plaintiff is
to appeal from the order of dismissal. (Id.)
The Manila Banking Corp. vs. University of
Baguio,Inc, (2007)
Facts: Manila Banking Corporation (“MBC”) filed a
Complaint for Sum of Money against the University of
Baguio for the latter’s failure to pay its loan. Five years
later, MBC amended the complaint and impleaded GDI
as additional defendant, alleging that it was unaware
and did not approve the diversion of the loan to GDI;
that it granted the loan without collateral upon the
university’s undertaking that it would construct new
buildings; and that GDI connived with the university and
Bautista, Jr. in fraudulently contracting the debt.
In its Answer, the university claimed that the
bank and GDI approved the diversion. Allegedly, Victor
G. Puyat, then GDI’s President, and Vicente G. Puyat,
then the bank’s President, decided to use the proceeds
of the loan. The university stated that Vicente G. Puyat
and Victor G. Puyat even assured the university, in
separate letters11both dated October 22, 1981, that it
would be relieved of any liability from the loan.
Consequently, even if the loan was overdue, the bank
did not demand payment until February 8, 1989.
Thereafter, MBC and GDI executed a deed
of dacion en pago, whereby the latter ceded and
transferred to MBC a parcel of land consisting of
210,000 square meters located in Nasugbu, Batangas
and covered by Transfer Certificate of Title No. T-70784,
in full settlement of the loan.
The university moved to dismiss the amended
complaint on the grounds that: (1) there was "no more
cause of action" against it since the loan had been
settled by GDI; and (2) the bank "failed to prosecute the
action for an unreasonable length of time." Said motion
was, however, denied, by the trial court since the
"matters relied upon by the university were evidentiary
in nature." The university moved for reconsideration,
which was opposed by MBC. The trial court granted the
University’s Motion to Dismiss Amended Complaint and
the Complaint for Sum of Money.
Issue: Did the trial court err in dismissing the amended
complaint, without trial, upon motion of respondent
university?
Held: Yes. The Supreme Court ruled that the
university’s motion to dismiss the amended complaint
was improper under Rule 16 because it was filed after
respondent university filed its responsive pleading, its
Answer. Also, the motion’s merit could not be
determined based solely on the allegations of the
initiatory pleading, the amended complaint, since the
motion was based on the deed of dacion en pago, which
was not even alleged in the complaint. And since the
deed of dacion en pago had been expunged from the
record, the trial court erred in its finding of payment and
lack of cause of action based on the deed. In fact, on
January 11, 2002 or just three months before it
dismissed the amended complaint, the trial court had
even noted petitioner counsel’s manifestation regarding
the parties’ initial efforts to enter into a "dacion en pago
but not based on the previous offer made but on a new
proposal involving new properties" and urged them to
pursue further settlement discussions.
In addition, the motion alleged that petitioner
had "no more cause of action" or lacked a cause of
action against the university. Said motion was a motion
to dismiss under Rule 33 in the nature of demurrer to
evidence and would be proper only after petitioner had
presented its evidence and rested its case. In the case
at bar, there had been no presentation of evidence yet
and petitioner had not rested its case. Therefore, the
August 17, 1999 Order properly denied the motion to
dismiss for being improper under either Rule 16 or 33.
Distinguished from demurrer in criminal case
(Rule 119, Sec. 23)
1. In a civil case, leave of court is NOT required
before filing a demurrer. In a criminal case, a
demurrer is filed with or without leave of court.
2. In a civil case, if the demurrer is granted, the
order of dismissal is appealable. In a criminal
case, the order of dismissal is NOT appealable
because of the constitutional policy against double
jeopardy.
3. In a civil case, if the demurrer is denied, the
defendant may proceed to present his evidence. In
a criminal case, the accused may adduce his
evidence only if the demurrer is filed with leave of
court. He cannot present his evidence if he filed
the demurrer without leave of court. (Riano, p.
401)
Rule 34
Judgment on the Pleadings
Sunbanun vs. Go (2010)
Facts: Sunbanun is the owner of a residential house. Go
leased the entire ground floor of petitioner’s house for
one year which was to expire 7 July 1996. To earn extra
income, Go accepted ldodgers from whom she received
a monthly income of P15,000. Go paid for the monthly
rental until March 1996 when petitioner drove away Go’s
lodgers by telling them that they could stay on the
rented premises only until 15 April 1996 since she was
terminating the lease. The lodgers left the rented
premises by 15 April 1996, and petitioner then
padlocked the rooms vacated by Go’s lodgers. Go filed
an action for damages against petitioner. Go alleged
that she lost her income from her lodgers. Petitioner
alleged that Go violated the lease contract when she
subleased the premises. Petitioner moved for the case to
be submitted for judgment on the pleadings considering
that the only disagreement between the parties was the
correct interpretation of the lease contract.
Page 118
Civil Procedure
ESGUERRA NOTES
Held: In this case, the trial court rendered a judgment
on the pleadings. Section 1, Rule 34 of the Rules of
Court reads:
SECTION 1. Judgment on the pleadings. 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.
The trial court has the discretion to grant a motion for
judgment on the pleadings filed by a party if there is no
controverted matter in the case after the answer is
filed.[7] A judgment on the pleadings is a judgment on
the facts as pleaded,[8] and is based exclusively upon
the allegations appearing in the pleadings of the parties
and the accompanying annexes.
This case is unusual because it was petitioner, and not
the claimant respondent, who moved for a judgment on
the pleadings during the pre-trial. This is clear from the
trial courts Order dated 7 October 1997 which reads:
ORDER
When this case was called for pre-trial, parties
appeared together with counsel. Defendant
[Doris U. Sunbanun] moved that considering that
there is no dispute as far as the contract is
concerned and the only disagreement between
the parties is on the interpretation of the contract
so that the issue boils down on to which of the
parties are correct on their interpretation. With
the conformity of the plaintiff [Aurora B. Go], this
case is therefore considered closed and
submitted for judgment on the pleadings. x x x
(Emphasis supplied)
Petitioner, in moving for a judgment on the
pleadings without offering proof as to the truth of her
own allegations and without giving respondent the
opportunity to introduce evidence, is deemed to have
admitted the material and relevant averments of the
complaint, and to rest her motion for judgment based on
the pleadings of the parties. As held in Tropical Homes,
Inc. v. CA:
As to the amount of damages awarded as a
consequence of this violation of plaintiffs rights, the
lower court based its award from the allegations and
prayer contained in the complaint. The defendant,
however, questions this award for the reason that,
according to the defendant, the plaintiff, in moving for
judgment on the pleadings, did not offer proof as to the
truth of his own allegations with respect to the damages
claimed by him, and gave no opportunity for the
appellant to introduce evidence to refute his claims. We
find this objection without merit. It appears that when
the plaintiff moved to have the case decided on the
pleadings, the defendant interposed no objection and
has practically assented thereto. The defendant,
therefore, is deemed to have admitted the allegations of
fact of the complaint, so that there was no necessity for
plaintiff to submit evidence of his claim.
In this case, it is undisputed that petitioner
ejected respondents lodgers three months before the
expiration of the lease contract on 7 July 1996.
Petitioner maintains that she had the right to terminate
the contract prior to its expiration because respondent
allegedly violated the terms of the lease contract by
subleasing the rented premises. Petitioners assertion is
belied by the provision in the lease contract[12] which
states that the lessee can use the premises as a dwelling
or as lodging house. Furthermore the lease contract
clearly provides that petitioner leased to respondent the
ground floor of her residential house for a term of one
year commencing from 7 July 1995. Thus, the lease
contract would expire only on 7 July 1996.
However, petitioner started ejecting respondents lodgers
in March 1996 by informing them that the lease contract
was only until 15 April 1996. Clearly, petitioners act of
ejecting respondents lodgers resulted in respondent
losing income from her lodgers. Hence, it was proper for
the trial court and the appellate court to order petitioner
to pay respondent actual damages in the amount
of P45,000.
Distinguished from summary judgment
Diman vs. Alumbres (1998)
Facts: A complaint for Quiting of Title and Damages by
Lacalle against Diman. Diman personally served a
Request for Admission from Lacalle but it was unheeded.
Lacalle did not file their Answer as well. Dimans moved
for summary judgment for failure of Lacalle to file their
pre-trial briefs. Lacalle opposed such motion. Diman’s
motion was denied by the RTC on the ground that the
complaint and answer shows a material issue.
Held: It is also the law which determines when a
summary judgment is proper. It declares that although
the pleadings on their face appear to raise issues of fact
-- e.g., there are denials of, or a conflict in, factual
allegations -- if it is shown by admissions, depositions or
affidavits, that those issues are sham, fictitious, or not
genuine, or, in the language of the Rules, that "except
as to the amount of damages, there is no genuine issue
as to any material fact and that the moving party is
entiled to a judgment as a matter of law, the Court shall
render a summary judgment for the plaintiff or the
defendant as the case may be.
Parenthetically, the existence or appearance of
ostensible issues in the pleadings, on the one hand, and
their sham or fictitious character, on the other, are what
distinguish a proper case for a summary judgment from
one for a judgment on the pleadings under Rule 19 of
the 1964 Rules. In the latter case, there is no ostensible
issue at all, but the absence of any because of the
failure of the defending party's answer to raise an
issue. Rule 19 expresses the principle as follows:
"Where an answer fails to tender an issue, or
otherwise admits the material allegations of the adverse
party's pleading, the court may, on motion of that party,
direct judgment on such pleading **."
On the other hand, in the case of a summary
judgment, issues apparently exist -- i.e., facts are
asserted in the complaint regarding which there is as yet
no admission, disavowal or qualification; or specific
denials or affirmative defenses are in truth set out in the
answer – but the issues thus arising from the pleadings
are sham, fictitious, not genuine, as shown by
admissions, depositions or admissions. In other words,
as a noted authority remarks, a judgment on the
pleadings is a judgment on the facts as pleaded while a
summary judgment is a judgment on the facts as
Page 119
Civil Procedure
ESGUERRA NOTES
summarily proven by affidavits, depositions or
admissions. Another distinction is that while the remedy
of a judgment on the pleadings may be sought only by a
claimant (one seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory
relief, supra), a summary judgment may be applied for
by either a claimant or a defending party.
These basic distinctions escaped His Honor. He
denied the Dimans' motion for summary judgment in his
Order of June 14, 1995, opining that a "perusal of the
Complaint and the Answer will clearly show that material
issue is raised in that both plaintiffs and defendants
claimed ownership over the land in dispute, presenting
their respective titles thereto and accused each other of
possessing false title to the land." He added, citing
cases, that a summary judgment "is not proper where
the defendant presented defenses tendering factual
issues which call for the presentation of evidence." Such
a ratiocination is grossly erroneous. Clearly, the grounds
relied on by the Judge are proper for the denial of a
motion for judgment on the pleadings -- as to which the
essential question, as already remarked, is: are there
issues arising from or generated by the pleadings? -- but
not as regards a motion for summary judgment -- as to
which the crucial question is: issues having been raised
by the pleadings, are those issues genuine, or sham or
fictitious, as shown by affidavits, depositions or
admissions accompanying the application therefor?
Rule 35
Summary Judgments
Ontimare vs. Elep (2006)
Facts: Plaintiffs and Respondents are neighbors in
Quezon City. Respondent wanted to build a four-door,
two-storey apartment on their lot. Petitioner owned the
adjoining house and adjacent lot. His terrace extends to
the boundary between his property and respondents.
Respondents wrote to petitioner to seek his consent to
the construction of a firewall adjacaent to his existing
firewall. Instead of consenting, petitioner filed a
complaint with the Building Official asking that the
request for a building permit be withheld since a firewall
would adversely affect the ventilation and market value
of his property. A cease and desist order to stop the
construction was issued but was thereafter lifted upon
written explanation by respondents to the City engineer.
Respondents were issued a new building. While workers
were construction the firewall, petitioner fired his
shotgun, threatening to kill anyone who would enter his
property. As a result, a portion of the firewall remained
unfinished. According to respondents, water seeped in
the building and damaged the sanding, the wood
parquet floors and the ceiling. Respondents filed an
action for damages with application for preliminary
injunction and restraining order against petitioner, who
moved for summary judgment. RTC issued the summary
judgment in favor of respondents and ordered petitioner
to pay respondent damages. CA affirmed the decision of
the RTC.
Held: Hence, for summary judgment to be proper, two
(2) requisites must concur, to wit: (1) there must be no
genuine issue on any material fact, except for the
amount of damages; and (2) the moving party must be
entitled to a judgment as a matter of law.
When, on their face, the pleadings tender a
genuine issue, summary judgment is not proper. An
issue is genuine if it requires the presentation of
evidence as distinguished from a sham, fictitious,
contrived or false claim.
In the instant case, the summary judgment
was rendered afterthe presentation of evidence by both
parties in a full blown trial. Records show that during the
two-year trial of the case, Ontimare Sr. had presented
his own witnesses, all four of them, and had cross-
examined the witnesses of the opposing party. The trial
courts decision was merely denominated as summary
judgment. But in essence, it is actually equivalent to a
judgment on the merits, making the rule on summary
judgment inapplicable in this case.
Motion required
Asian Construction and Development Corp. v. PCIB
(2006)
Facts: PCIBank filed a complaint for sum of money with
prayer for a writ of preliminary attachment against
Asiakonstrukt (defendant). After ex-parte presentation
of evidence, RTC issued the writ of preliminary
attachment. Defendant pleaded in its Answer severe
financial and currency crisis which adversely affected
and put defendant out of business. PCIBank filed a
verified Motion for Summary Judgment contending that
the defenses interposed by the defendant are sham, and
contrived. RTC rendered a summary judgment ordering
defendant to pay PCIBank.
Held: Under Rule 35 of the 1997 Rules of Procedure, as
amended, except as to the amount of damages, when
there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of
law, summary judgment may be allowed. Summary or
accelerated judgment is a procedural technique aimed at
weeding out sham claims or defenses at an early stage
of litigation thereby avoiding the expense and loss of
time involved in a trial.
Under the Rules, summary judgment is
appropriate when there are no genuine issues of fact
which call for the presentation of evidence in a full-
blown trial. Even if on their face the pleadings appear to
raise issues, when the affidavits, depositions and
admissions show that such issues are not genuine, then
summary judgment as prescribed by the Rules must
ensue as a matter of law. The determinative factor,
therefore, in a motion for summary judgment, is the
presence or absence of a genuine issue as to any
material fact.
A genuine issue is an issue of fact which
requires the presentation of evidence as distinguished
from a sham, fictitious, contrived or false claim. When
the facts as pleaded appear uncontested or undisputed,
then there is no real or genuine issue or question as to
the facts, and summary judgment is called for. The
party who moves for summary judgment has the burden
of demonstrating clearly the absence of any genuine
issue of fact, or that the issue posed in the complaint is
patently unsubstantial so as not to constitute a genuine
issue for trial. Trial courts have limited authority to
render summary judgments and may do so only when
there is clearly no genuine issue as to any material fact.
When the facts as pleaded by the parties are disputed or
contested, proceedings for summary judgment cannot
take the place of trial.
Page 120
Civil Procedure
ESGUERRA NOTES

Concept of final judgment and final order

Rule 36
Judgments, Final Orders and Entry BA Finance Corporation v. Court of Appeals (1994)

Facts: Yanky Hardware Company, Inc. (YANKY), applied

for and was granted by petitioner BA Finance
1997 Rules on Civil Procedure, Rule 36
Corporation a credit accommodation. To secure the
payment of all its loans, YANKY executed a chattel
Section 1. Rendition of judgments and final orders.
mortgage over its stock-in-trade or merchandise
— A judgment or final order determining the merits of
inventory in favor of petitioner. In time, petitioner
the case shall be in writing personally and directly
demanded from YANKY the payment of its accumulated
prepared by the judge, stating clearly and distinctly the
obligations, or the delivery of the mortgaged chattels for
facts and the law on which it is based, signed by him,
purposes of extrajudicial foreclosure.
and filed with the clerk of the court.
Petitioner filed a complaint against YANKY for replevin
Section 2. Entry of judgments and final orders. — If
with damages or, in the alternative, payment of the
no appeal or motion for new trial or reconsideration is
amount of P559,565.00 plus interest, contending that it
filed within the time provided in these Rules, the
had the right to take possession of the chattels
judgment or final order shall forthwith be entered by the
described in the chattel mortgage or to be paid the total
clerk in the book of entries of judgments. The date of
amount of the loans plus interest. The trial court
finality of the judgment or final order shall be deemed to
ordered the seizure of all the merchandise and other
be the date of its entry. The record shall contain the
personal properties described in the chattel mortgage.
dispositive part of the judgment or final order and shall
The sheriff accordingly seized chattels found in the
be signed by the clerk, within a certificate that such
premises of YANKY and later transferred them to
judgment or final order has become final and executory.
petitioner's warehouse.
Section 3. Judgment for or against one or more of
Upon motion, the trial court accordingly issued an order
several parties. — Judgment may be given for or against
for the sale of the mortgaged properties at public
one or more of several plaintiffs and for or against one
auction to prevent depreciation of value. Respondent
or more of several defendants. When justice so
Wilson Siy won as highest bidder. Petitioner then filed
demands, the court may require the parties on each side
an Urgent Motion to Cancel Auction Sale stating that it
to file adversary pleadings as between themselves and
was not given an opportunity to participate in the sale
determine their ultimate rights and obligations.
and was deprived of its right to bid. The trial court
granted petitioner’s motion and cancelled the auction
Section 4. Several judgments. — In an action
sale.
against several defendants, the court may, when a
several judgment is proper, render judgment against
Respondent Siy filed a motion for reconsideration of the
one or more of them, leaving the action to proceed
order cancelling the auction sale. The trial court, in an
against the others.
order dated 20 June 1984, granted the motion for
reconsideration and allowed respondent Siy to put up a
Section 5. Separate judgments. — When more than
bond to justify the release of properties to him.
one claim for relief is presented in an action, the court,
Respondent Siy submitted a surety bond after which, on
at any stage, upon a determination of the issues
28 June 1984, the sheriff was directed to deliver to Siy
material to a particular claim and all counterclaims
the chattels thus sold. Conformably with the above
arising out of the transaction or occurrence which is the
order, the sheriff delivered assorted hardware materials
subject matter of the claim, may render a separate
to Siy and submitted a Sheriff's Report on the properties
judgment disposing of such claim. The judgment shall
actually delivered. On 24 July 1984, respondent Siy
terminate the action with respect to the claim so
filed his motion to compel delivery of certain chattels
disposed of and the action shall proceed as to the
sold in the auction sale but not delivered by petitioner to
remaining claims. In case a separate judgment is
him. In an order dated 27 July 1984, the trial court
rendered the court by order may stay its enforcement
directed petitioner to produce and/or account for the
until the rendition of a subsequent judgment or
undelivered properties. On 22 January 1986, the trial
judgments and may prescribe such conditions as may be
court issued an order directing petitioner to deliver to
necessary to secure the benefit thereof to the party in
Siy the properties appearing in the inventory minus the
whose favor the judgment is rendered.
properties already delivered, and if this be not possible,
to pay the equivalent amount thereof.
Section 6. Judgment against entity without juridical
personality. — When judgment is rendered against two
Twenty-three (23) days after its receipt of the
or more persons sued as an entity without juridical
aforementioned order, petitioner filed its notice of
personality, the judgment shall set out their individual or
appeal and a record on appeal with the Court of Appeals.
proper names, if known.
In its appeal, petitioner questioned the 20 June 1984
order of the trial court which, in effect, permitted the
Form intervention of respondent Siy by entertaining his
motion for reconsideration and allowing him to put up a
Rule 36, Section 1. Rendition of judgments and final surety bond to justify the release of the properties to
orders. — A judgment or final order determining the him. The Court of Appeals held that petitioner could no
merits of the case shall be in writing personally and longer appeal the 20 June 1984 order because it was
directly prepared by the judge, stating clearly and already way beyond the reglementary period to appeal.
distinctly the facts and the law on which it is based,
signed by him, and filed with the clerk of the court.

Page 121
Civil Procedure
ESGUERRA NOTES
Petitioner submits that the order of 20 June 1984 was
merely interlocutory hence unappealable, and that in
appealing the final order of 22 January 1986, it should
be allowed to question the order of 20 June 1984
because its reversal will necessarily render null and void
the final order of 22 January 1986.
Issue: Whether the order dated 20 June 1984 granting
respondent Siy’s motion for reconsideration of the order
cancelling the auction sale can be assailed in the present
appeal.
Held: No. The principal case filed with the trial court by
petitioner against YANKY was for replevin or, in the
alternative, for collection of the amount of the loans,
plus interest owed by YANKY. This Court likewise noted
that the disputed order of 22 January 1986, subject of
the present appeal, only directed petitioner to turn over
to respondent Siy properties which had remained
undelivered to the latter as highest bidder, a matter
which was merely an incident of the principal case. The
order of the trial court was already final so far as it
concerned the dispute between petitioner and
respondent Siy because it was to resolve the right of the
latter to receive the disputed properties and petitioner's
obligation to deliver those properties to Siy. This is
based on the settled rule that only a final order or
judgment on the merits may be the subject of an
appeal. A final order is defined as one which disposes of
the whole subject matter or terminates a particular
proceeding or action, leaving nothing to be done but to
enforce by execution what has been determined; on the
other hand, an order is interlocutory if it does not
dispose of a case completely, but leaves something
more to be done upon its merits.
Hence, the argument of petitioner that it can still
question the order of 20 June 1984 while appealing the
final order of 22 January 1986 is untenable. It may be
true that the 20 June 1984 order allowed the
intervention of respondent Siy and reversed the court's
previous order setting aside the auction sale. However,
upon submission by Siy of a surety bond with the court,
the latter issued a final order dated 28 June 1984, which
was issued earlier than the final order of 22 January
1986. The order of 28 June 1984 directed the delivery of
the auctioned properties to respondent Siy.
Although the order of 20 June 1984 may be considered
interlocutory as it required something more to be done
by respondent Siy, i.e., the filing of the bond, the
subsequent order of 28 June 1984 can be considered a
final one which determined and settled the issue on the
validity of the auction sale and the right of respondent
Siy as highest bidder to acquire the properties he
purchased. Petitioner should have appealed the 28 June
1984 order if it wanted to question the validity of the
intervention of respondent Siy as well as of the auction
sale. But it did not do so. Moreover, records show that
after the issuance of the order of 28 June 1984 directing
the delivery of the properties to Siy, the remaining
proceedings in the trial court pertained only to the
execution and implementation by the sheriff of the order
of 28 June 1984.
Kinds (as to finality)
1. Rendition of judgment
Rule 36, Section 1. Rendition of judgments and
final orders. — A judgment or final order
determining the merits of the case shall be in
writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and
the law on which it is based, signed by him, and
filed with the clerk of the court.
2. Entry of judgment
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, within a certificate
that such judgment or final order has become final
and executory.
3. Entry of satisfaction of judgment
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.
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.
Kinds (as to process procuring)
1. Judgment on the pleadings (Rule 34)
Rule 34, Section 1. Judgment on the pleadings.
— Where an answer fails to tender an issue, or
otherwise admits the material allegations of the
adverse party's pleading, the court may; on
motion of that party, direct judgment on such
pleading. 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.
Page 122
Civil Procedure
ESGUERRA NOTES
2. Judgment on demurrer to evidence (Rule 33)
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.
3. Summary judgments (Rule 35)
Rule 35, Section 1. Summary judgment for
claimant. — A party seeking to recover upon a
claim, counterclaim, or cross-claim or to obtain a
declaratory relief may, at any time after the
pleading in answer thereto has been served, move
with supporting affidavits, depositions or
admissions for a summary judgment in his favor
upon all or any part thereof.
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 any time,
move with supporting affidavits, depositions or
admissions for a summary judgment in his favor
as to all or any part thereof.
4. Default judgments
Rule 9, Section 3. Default; declaration of. — 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
(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.
(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
oath 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.
(c) Effect of partial default. — When a pleading
asserting a claim states a common cause of
action against several defending parties, some
of whom answer and the others fail to do so,
the court shall try the case against all upon the
answers thus filed and render judgment upon
the evidence presented.
(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.
(e) Where no 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.
5. Judgments after ex parte presentation of
evidence
Rule 18, Section 5. Effect of failure to appear. —
The failure of the plaintiff to appear when so
required pursuant to the next preceding section
(duty of parties and counsel to appear at the pre-
trial) shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless other-
wise 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.
6. Orders for dismissal
a. Motion to dismiss under Rule 16, supra
b. Dismissals under Rule 17
Section 1. Dismissal upon notice by plaintiff.
— A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any
time before service of the answer or of a
motion for summary judgment. Upon such
notice being filed, the court shall issue an
order confirming the dismissal. Unless
otherwise stated in the notice, the dismissal is
without prejudice, except that a notice
operates as an adjudication upon the merits
when filed by a plaintiff who has once
dismissed in a competent court an action
based on or including the same claim.
Section 2. Dismissal upon motion of plaintiff.
— Except as provided in the preceding
section, a complaint shall not be dismissed at
the plaintiff's instance save upon approval of
the court and upon such terms and conditions
as the court deems proper. If a counterclaim
has been pleaded by a defendant prior to the
service upon him of the 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 manifests his
preference to have his counterclaim resolved
in the same action. Unless otherwise specified
in the order, a dismissal under this paragraph
shall be without prejudice. A class suit shall
not be dismissed or compromised without the
approval of the court.
Page 123
Civil Procedure
ESGUERRA NOTES
Section 3. Dismissal due to fault of plaintiff. — If,
for no justifiable cause, the plaintiff fails to appear
on the date of the presentation of his evidence in
chief on the complaint, or to prosecute his action
for an unreasonable length of time, or to comply
with these Rules or any order of the court, the
complaint may be dismissed upon motion of the
defendant or upon the court's own motion, without
prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the
effect of an adjudication upon the merits, unless
otherwise declared by the court.
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.
c. Dismissals under Rule 18, Section 5
Rule 18, Section 5. Effect of failure to appear. —
The failure of the plaintiff to appear when so
required pursuant to the next preceding section
(duty of parties and counsel to appear at pre-trial)
shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless other-
wise 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.
d. Dismissals under Rule 29, Section 5
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 attorney's fees.
Kinds (as to parties)
1. As against one or more several parties
Rule 36, Section 3. Judgment for or against one
or more of several parties. — Judgment may be
given for or against one or more of several
plaintiffs and for or against one or more of 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.
2. Several judgments
Rule 36, Section 4. Several judgments. — 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.
3. Against entity without juridical personality
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.
Kinds (as to claims)
1. Entire
2. At various stages or separate judgments
Rule 36, Section 5. Separate judgments. —
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
transaction or occurrence which is the subject
matter of the 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.
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:
xxx
(f) An order of execution
Kinds (as to how executed)
1. Judgments not stayed on 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.
Page 124
Civil Procedure
ESGUERRA NOTES
2. Judgments for money
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 by 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 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, if 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 effect 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 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.
3. Judgments for specific acts
Rule 39, Section 10. Execution of judgments
for specific act. —
(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 effect 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.
Page 125
Civil Procedure
ESGUERRA NOTES
(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.
(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.
(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 the hearing
and after the former has failed to remove the
same within a reasonable time fixed by the court.
(e) Delivery of personal property. — In judgment
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.
4. Special judgments
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.
Effects of judgments and final orders
1. Local
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:
(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 missed
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.
2. Foreign
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.
Amendment of judgment
1. Before it becomes final and executory
Eternal Gardens Memorial v. Intermediate
Appellate Court (1988)
Facts: Petitioner Eternal Gardens Memorial Parks
Corporation and private respondent North Philippine
Union Mission Corporation of the Seventh Day
Adventists executed a Land Development Agreement
whereby the former undertook to introduce and
construct at its own expense and responsibility
necessary improvements on the property owned by
private respondent into a memorial park to be
subdivided into and sold as memorial plot lots.
Respondent executed in petitioner's favor a Deed of
Absolute Sale with Mortgage) on the lots with titles
involved in the land development project.
Page 126
Civil Procedure
ESGUERRA NOTES
All went well until Maysilo Estate asserted its
claim of ownership over the parcel of land in question.
Confronted with such conflicting claims, petitioner as
plaintiff filed a complaint for interpleader against
respondent and Maysilo Estate, alleging that it has no
claim of ownership except as a purchaser thereof and is
willing to pay whoever is entitled or declared to be the
owners of said properties.
During trial of the case, respondent presented
a motion for the placing on judicial deposit the amounts
due and unpaid from petitioner. The trial court denied
judicial deposit in its order dated February 13, 1984.
Another order dated October 26, 1984 was issued
amending the February 13, 1984 order, (1) setting aside
the order for respondent's deposit of the amounts it had
previously received from petitioner; and (2) denying
respondent’s motion to require Eternal Gardens to
deposit the balance under the Land Development
Agreement.
Respondent filed before the Intermediate
Appellate Court (IAC) a petition for certiorari praying
that the Orders of February 13, 1984 and October 26,
1984 of the Regional Trial Court be set aside and that an
order be issued to deposit in court or in a depositor
trustee bank of any and all payments, plus interest
thereon, due the private respondent. The IAC dismissed
the petition in its decision on February 27, 1985.
However, in its Resolution dated 5 September 1985m ut
reversed its decision and ordered the respondent to
deposit whatever amounts are due from it under the
Land Development Agreement.
Eternal Gardens moved for a reconsideration of
the above decision but it was denied. Hence this
petition.
Issue: Whether or not the IAC abused its discretion
amounting to lack of jurisdiction in reconsidering its
resolution of February 27, 1985 and in requiring instead
in the resolution of September 5, 1985, that petitioner
Eternal Gardens deposit whatever amounts are due from
it under the Land Development Agreement.
Held: No. There is no question that courts have
inherent power to amend their judgments, to make
them conformable to the law applicable provided that
said judgments have not yet attained finality. In fact,
motions for reconsideration are allowed to convince the
courts that their rulings are erroneous and improper and
in so doing, said courts are given sufficient opportunity
to correct their errors.
In the case at bar, petitioner admitted among
others in its complaint in Interpleader that it is still
obligated to pay certain amounts to private respondent;
that it claims no interest in such amounts due and is
willing to pay whoever is declared entitled to said
amounts. Such admissions in the complaint were
reaffirmed in open court before the IAC as stated in the
latter court's resolution dated September 5, 1985.
Under the circumstances, there appears to be no
plausible reason for petitioner's objections to the deposit
of the amounts in litigation after having asked for the
assistance of the lower court by filing a complaint for
interpleader where the deposit of aforesaid amounts is
not only required by the nature of the action but is a
contractual obligation of the petitioner under the Land
Development Program.
The essence of an interpleader, aside from the
disavowal of interest in the property in litigation on the
part of the petitioner, is the deposit of the property or
funds in controversy with the court. The IAC found that
more than twenty million pesos are involved; so that
interest alone for savings or time deposit would be
considerable, now accruing in favor of the Eternal
Gardens. Finding that such is violative of the very
essence of the complaint for interpleader, the Court of
Appeals cannot be faulted for finding that the lower
court committed a grave abuse of discretion which
requires correction by the requirement that a deposit of
said amounts should be made to a bank approved by the
Court.
2. After it becomes final and executory
Nunal v. Court of Appeals (1993)
Facts: Respondents filed a case for partition and
accounting of a parcel of land located in Isabela against
Luisa Lyon Nuñal, now deceased and herein represented
by her heirs. Subject parcel of land was formerly owned
by Frank C. Lyon and Mary Ekstrom Lyon, deceased
parents of petitioner and the respondents. Respondents
claimed that said parcel of land has been in possession
of petitioner Luisa Lyon Nuñal since 1946 and that she
made no accounting of the income derived therefrom,
despite demands made by private respondents for the
partition and delivery of their shares.
On December 17, 1974, the trial court
rendered its judgment in favor of private respondents
and ordered the partition of the property. On July 30,
1982, the order of partition was affirmed in toto by the
Court of Appeals. The case was remanded to the court
of origin for the ordered partition.
On July 17, 1984, Mary Lyon Martin, daughter
of the late Frank C. Lyon and Mary Ekstrom Lyon, filed a
motion to quash the order of execution with preliminary
injunction. In her motion, she contends that not being a
party to the case her rights, interests, ownership and
participation over the land should not be affected by a
judgment in the said case; that the order of execution is
unenforceable insofar as her share, right, ownership and
participation is concerned, said share not having been
brought within the jurisdiction of the court.
The trial court dismissed the motion to quash
order of execution with preliminary injunction filed by
Mary Lyon Martin and directed the partition. The private
respondents filed motion for clarification as to whether
the partition of property is to be confined merely among
the party plaintiffs and defendants, to the exclusion of
Mary Lyon Martin. On January 9, 1987, the lower court
issued the assailed order directing the inclusion of Mary
Lyon Martin as co-owner with a share in the partition of
the property, it would be unfair and unjust if she would
be left out in the partition of said property. The
petitioners appealed to the Court of Appeals, which
dismissed the appeal.
Issue: Whether of not the trial court may order the
inclusion of Mary L. Martin as co-heir entitled to
participate in the partition of the property in considering
that the decision rendered in that case has long become
final and executory.
Page 127
Civil Procedure
ESGUERRA NOTES
Held: No. In the case of Manning International
Corporation v. NLRC, We held that ". . ., nothing is more
settled in the law than that when a final judgment
becomes executory, it thereby becomes immutable and
unalterable. The judgment may no longer be modified in
any respect, even if the modification is meant to correct
what is perceived to be an erroneous conclusion of fact
or law, and regardless of whether the modification is
attempted to be made by the Court rendering it or by
the highest Court of land. The only recognized
exceptions are the correction of clerical errors or the
making of so-called nunc pro tunc entries which cause
no prejudice to any party, and, of course, where the
judgment is void."
Furthermore, "any amendment. or alteration
which substantially affects a final and executory
judgment is null and void for lack of jurisdiction,
including the entire proceedings held for that purpose."
In the case at bar, the decision of the trial
court in the case has become final and executory. Thus,
upon its finality, the trial judge lost his jurisdiction over
the case. Consequently, any modification that he would
make, as in this case, the inclusion of Mary Lyon Martin
would be in excess of his authority. The remedy of Mary
Lyon Martin is to file an independent suit against the
parties in the case and all other heirs for her share in
the subject property, in order that all the parties in
interest can prove their respective claims.
Industrial Timber Corporation v. Court of Appeals
(1994)
Facts: In the earlier case of Industrial Timber
Corporation v. NLRC, G.R.
No. 83616, the Supreme Court affirmed the findings of
the NLRC that the petitioners are the employers of
private respondents and remanded the case for a
determination of the validity of the quitclaim allegedly
signed by the latter. In its resolution dated February 3,
1992, the NLRC affirmed in toto the decision of Labor
Arbiter on February 26, 1987, ordering the petitioners to
reinstate the private respondents, and to pay them back
wages and other benefits. In view of the lapse of time
since the promulgation of the decision, the NLRC
likewise directed the petitioners to pay the private
respondents severance benefits should reinstatement of
the private respondents to their former position be no
longer possible.
This resolution became final and executory on
March 9, 1992, and entry of judgment was made on
March 25, 1992. The respondents meanwhile had filed
on March 20, 1992, an ex parte motion for issuance of a
writ of execution with manifestation that from February
26, 1987, up to the present, they have not been
reinstated and thus were entitled to back salaries for the
said period and until actual reinstatement shall have
been made.
Upon computation, the Labor Arbiter held
petitioners liable to the respondents for the total amount
of P387,122.65 for back salaries. The NLRC, on appeal,
only made a slight modification of the amount of the
award and directed the petitioners to pay respondents
the sum of P375,795.20.
Petitioners submit that the recomputation
should not have been allowed because the monetary
awards due the respondents had already been
determined and fixed in the order which became final
and executory. It is argued that to allow the
recomputation and the increase of the monetary award
to the respondents would in effect allow an arbiter to
change a decision that has become final and executory.
Issue: Whether or not the petitioners can be held liable
for the recomputed amount although the resolution has
already become final and executory.
Held: Yes. It is true that after a judgment has become
final and executory, it can no longer be modified or
otherwise disturbed. However, this principle admits of
exceptions, as where facts and circumstances transpire
which render its execution impossible or unjust and it
therefore becomes necessary, "in the interest of justice,
to direct its modification in order to harmonize the
disposition with the prevailing circumstances."
In this case, the back wages and other benefits
awarded by Arbiter Solamo to each of the private
respondents in the amount of P24,300.00 correspond
merely to the period between their illegal dismissal on
April 26, 1986, up to the time of the rendition of the
decision on February 26, 1987. There is no dispute that
from April 26, 1986, to this date, the private
respondents have not been reinstated nor has payment
of the monetary awards decreed by the NLRC been
made to them.
It may be true that the amount of backwages
and other benefits due to the private respondents as
recomputed, is not in harmony with the literal import of
the dispositive portion of the decision subject of
execution. However, sight must not be lost of the fact
that at the time the recomputation was made in 1992,
five (5) years had already elapsed from the time the
Labor Arbiter rendered his Decision on February 26,
1987. Thus, a recomputation was necessary to arrive at
a just and proper determination of the monetary awards
due the private respondents.
Supplemental Judgment
Esquivel v. Alegre (1989)
Facts: Spouses Teotimo and Visitacion (“private
respondents”) filed a case for unlawful detainer against
Spouses Cresenciana and Lamberto (“petitioners”). The
trial court ruled in favor of private respondents, which
decision was affirmed by the Court of Appeals and the
Supreme Court. After private respondents secured a writ
of execution in the unlawful detainer case, petitioners
filed a complaint for reconveyance with nullity of
judgment damages and preliminary injunction (the
“second case”) alleging that they had prior possession
over the land subject of the unlawful detainer case.
Notably, the question of prior possession of the land in
question was raised and passed upon in the unlawful
detainer case. Hence, the courts ruled in favour of
private respondents in the second case.
After their motion for reconsideration of the
second case was denied, petitioners filed their notice of
appeal but due to the opposition of private respondents
to the non-inclusion in the record on appeal of certain
pleadings, orders and decisions which they claimed are
relevant to the disposition of the appeal, petitioners
were ordered by respondent court to amend their record
on appeal to satisfy the objections of the private
respondents. In the meantime private respondents
Page 128
Civil Procedure
ESGUERRA NOTES
transferred the property in question to the spouses
Wilfredo Encinas and Patrocinia Dasmarinas. Petitioners
must have learned of the sale before they could file their
amended record on appeal, which must have prompted
them to file a motion for supplemental complaint against
the vendees of the property in question, the spouses
Wilfredo Encinas and Patrocinia Dasmarinas which was
admitted by respondent court. As borne by the records
of the case, respondent court ruled in favor of herein
petitioners in the supplemental complaint which was
affirmed by the Court of Appeals.
Petitioners claim that the decision of
respondent court in the supplemental complaint revised
the decision in the original complaint tantamount to an
amendment or reversal of said original decision of
respondent court penned by a previous presiding judge
therein.
Issue: Whether or not the decision rendered by a trial
court in a supplemental complaint modified the decision
of the same branch of the court in the original complaint
and amounts to an amendment of the original decision
Held: No. There is a difference between an amended
judgment and a supplemental judgment. In an amended
and clarified judgment, the lower 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. The amended and
clarified decision is an entirely new decision which
supersedes the original decision. Following the Court's
differentiation of a supplemental pleading from an
amending pleading, it can be said that a supplemental
decision does not take the place or extinguish the
existence of the original. As its very name denotes, it
only serves to bolster or adds something to the primary
decision. A supplement exists side by side with the
original. It does not replace that which it supplements.
In the instant case no restudy was made by
respondent court of the original decision but only on the
issues raised in the supplemental complaint. The
supplemental decision cannot stand alone as a judgment
on the merits as there was no declaration of the
respective rights and duties of the parties. It only
declared the supplemental defendants as successors-in-
interest of the defendants in the original complaint,
"such that whatever is the result of the appealed case
shall be legally binding upon them ...".
The part of the supplemental decision which
petitioners claim to have revised the original, is quoted
as follows:
In the light of the foregoing testimony of the
witnesses presented by supplemental plaintiffs together
with the documentary exhibits supporting the allegations
of the supplemental complaint, the Court finds that the
evidence presented by the supplemental plaintiffs are
preponderantly sufficient to justify and warrant a
judgment in their favor.
There can be no other interpretation of the
above statement of respondent court than that all
documentary and testimonial evidence prescribed by
supplemental plaintiffs, petitioners herein, sufficiently
prove that when supplemental defendants entered into
the contract of absolute sale with the original
defendants, they already had full knowledge of the
controversy between supplemental plaintiffs and the
original defendants in Civil Case No. 4883 such that they
must be adjudged as successors-in-interest of original
defendants Teotimo Alaurin and Visitacion Magno. This
interpretation is borne by the statement of respondent
court at the end of the paragraph preceding that which
petitioners herein claim to have revised the original
decision, which states:
... One thing, however, clear is that both
supplemental defendants are successors-in-interest of
Teotimo Alaurin The prayer for reconveyance of the
property in question cannot be justified in the light of
the decision of Hon. Jose C. Razo.
It must be pointed out that the dispositive
portion itself of the supplemental decision is clear and
unambiguous. It does not make any declaration or
pronouncement that may be taken to have revised or
amended the original decision. All that it declares is that
the supplemental defendants Wilfredo Encinas and
Patrocinia Dasmarinas are successors-in-interest of
defendants Teotimo Alaurin and Visitacion Magno such
that whatever is the result of the appealed case shall be
legally binding upon them.
Judgments Nun Pro Tunc
Cardoza v. Singson (1990)
Facts: Plaintiffs in Civil Case No.1853 filed for a Motion
for Execution of Judgment on 29 August 1979. The
motion alleged that a decision dated February 7, 1938 of
the Court of First Instance, Leyte which was affirmed
with modification in the decision of the Court of Appeals
in C.A. G.R. No. 3645, promulgated on December 6,
1939 had long been final and executory. Plaintiffs
allegedly acquired knowledge of the appellate court's
decision only in November 11, 1974 because before the
death of their original counsel in 1944 they were not
informed of the said decision. In an order dated
September 4, 1979, the trial court directed the
plaintiffs-movants to submit their memorandum within
fifteen days and for the defendants-oppositors to file
their opposition thereto within the same period from
receipt of the memorandum.
On May 4, 1980, plaintiffs' counsel filed a
motion to defer the consideration of the motion for
execution on the ground that in during one of the
hearings, they allegedly discovered that no entry of
judgment had been made and that nobody could tell
whether parties or their counsel received a copy of the
decision of the Court of Appeals. Plaintiffs therefore,
prayed for the recording of the decision of the Court of
Appeals in the book of entries of Judgment.
On July 6, 1981, the trial court issued an order
that "a nunc pro tunc judgment be entered pursuant to
the decision of the Court of Appeals in Civil Case No.
C.A. G.R. No. 3545." For the satisfaction of the
judgment it likewise ordered the issuance of a writ of
execution.
On July 21, 1981, the writ of execution was
issued directing the Provincial Sheriff of Southern Leyte
or his deputies to enforce and execute the decision of
the trial court as modified by the appellate court.
On January 8, 1982 herein petitioner Juanito
Cardoza filed the instant petition for certiorari,
mandamus and prohibition with preliminary injunction.
Page 129
Civil Procedure
ESGUERRA NOTES
In his petition, he alleged inter alia that the respondent
judge usurped the jurisdiction of the Court of Appeals
when it issued the Order of July 6, 1981 directing that "a
non pro tunc' judgment be entered pursuant to the
decision of the Court of Appeals in Civil Case C.A. G.R.
No. 3545" because (a) under Section 10 of Rule 5 of the
Revised Rules of Court, its issuance is the ministerial
duty of the Clerk of Court of the Court of Appeals; (b)
that the trial court erred in granting the application for
issuance of a nunc pro tunc judgment because plaintiffs'
inaction to move for the execution of the Judgment 40
years after its promulgation is a ground for its denial;
(c) that private respondents have not adduced evidence
to overcome the regularity in the performance of official
function so that it can be presumed that the Clerk of
Court of the Court of Appeals made the entry of
judgment; and (d) that respondent judge gravely
abused his discretion when he deprived petitioner of his
property without due process of law.
Issue: Whether or not the trial court committed a grave
abuse of discretion when it made the entry of judgment
nunc pro tunc and issued the writ of execution.
Held: Acting not only as a court of law but also as a
court of equity, the trial court correctly made the entry
of a judgment nunc pro tunc pursuant to the decision of
the Court of Appeals in Civil Case No. C.A. G.R. No.
3545. In so doing, the lower court merely ordered the
judgment of the, Court of Appeals to be executed.
The issuance of a nunc pro tunc order was
recognized by this Court in Lichauco v. Tan Pho, 51 Phil.
862 where an order or judgment actually rendered by a
court at a former time had not been entered of record as
rendered. There is no doubt that such an entry operates
to save proceedings had before it was made.
Contrary to what the petitioner claims, the
lower courts action—decreeing the entry of a
judgment nunc pro tunc—was not done arbitrarily nor
capriciously. The petitioner was allowed to oppose the
motions in open court and was even required to submit
a memorandum to support his position. The petitioner,
however, failed to submit a memorandum. Neither did
he adduce sufficient evidence to support his claims over
the properties in question.
Finally, well settled is the rule that a judgment
which has become final and executory can no longer be
amended or corrected by the court except for clerical
errors or mistakes. In such a situation, the trial court
loses jurisdiction over the case except to execute the
final judgment, as in this case.
Law of The Case
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 v.
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 v.
Court of Appeals, G.R. No. 80194, Mar. 21, 1989).
Bar By Former Judgment And Conclusiveness Of
Judgment, Distinguished
Del Rosario vs Far East Bank and Trust Company
(2007)
Facts: On May 21, 1974, petitioner Davao Timber
Corporation (DATICOR) and respondent Private
Development Corporation of the Philippines (PDCP)
entered into a loan agreement under which PDCP
extended to DATICOR a foreign currency loan of US
$265,000 and a peso loan of P2.5 million or a total
amount of approximately P4.4 million, computed at the
then prevailing rate of exchange of the dollar with the
peso. The loans were secured by real estate mortgages
over six parcels of land.
Petitioners paid a total of P3 million to PDCP,
which the latter applied to interest, service fees and
penalty charges. This left petitioners, by PDCP’s
computation, with an outstanding balance on the
principal of more than P10 million as of May 15, 1983.
By March 31, 1982, petitioners had filed a complaint
against PDCP before the then Court of First Instance
(CFI) of Manila for violation of the Usury Law, annulment
of contract and damages. The appeal before the
Supreme Court was docketed as G.R. No. 73198.
In the interim, PDCP assigned a portion of its
receivables from petitioners (the receivables) to its co-
respondent Far East Bank and Trust Company (FEBTC)
under a Deed of Assignment dated April 10, 1987 for a
consideration of P5,435,000. FEBTC, as assignee of the
receivables, and petitioners later executed a
Memorandum of Agreement (MOA) dated December 8,
1988 whereby petitioners agreed to, as they did pay
FEBTC the amount of P6.4 million as full settlement of
the receivables.
On September 2, 1992, the Supreme Court
promulgated its Decision in G.R. No. 73198. It
determined that after deducting the P3 million earlier
paid by petitioners to PDCP, their remaining balance on
the principal loan was only P1.4 million.
Based on the Supreme Court decision,
petitioners filed on April 25, 1994 a Complaint for sum
of money against PDCP and FEBTC before the RTC
of Makati, mainly to recover the excess payment which
they computed to be P5.3 million -- P4.335 million from
PDCP, and P965,000 from FEBTC. The case was
docketed as Civil Case No. 94-1610.
On May 31, 1995, Branch 132 of
the Makati RTC rendered a decision in Civil Case No. 94-
1610 ordering PDCP to pay petitioners the sum
of P4.035 million, to bear interest at 12% per annum
from April 25, 1994 until fully paid; to execute a release
or cancellation of the mortgages. As for the complaint of
petitioners against respondent FEBTC, the trial court
dismissed it for lack of cause of action, ratiocinating that
the MOA between petitioners and FEBTC was not subject
to the Supreme Court’s Decision in G.R. No. 73198,
FEBTC not being a party thereto.
Page 130
Civil Procedure
ESGUERRA NOTES
From the trial court’s decision, petitioners and
respondent PDCP appealed to the Court of Appeals
(CA). The appeal was docketed as CA-G.R. CV No.
50591.
On May 22, 1998, the CA rendered a
decision in CA-G.R. CV No. 50591, holding that
petitioners outstanding obligation, which the Supreme
Court had determined in G.R. No. 73198 to be P1.4
million, could not be increased or decreased by any act
of the creditor PDCP. The CA held that when PDCP
assigned its receivables, the amount payable to it by
DATICOR was the same amount payable to
assignee FEBTC, irrespective of any stipulation that
PDCP and FEBTC might have provided in the Deed of
Assignment, DATICOR not having been a party thereto,
hence, not bound by its terms. Citing Articles 2154 and
2163 of the Civil Code which embody the principle
of solutio indebiti, the CA held that the party bound to
refund the excess payment of P5 million was FEBTC as it
received the overpayment; and that FEBTC could
recover from PDCP the amount of P4.035 million
representing its overpayment for the assigned
receivables based on the terms of the Deed of
Assignment or on the general principle of equity.
Noting, however, that DATICOR claimed in its
complaint only the amount of P965,000 from FEBTC, the
CA held that it could not grant a relief different from or
in excess of that prayed for. Finally, the CA held that the
claim of PDCP against DATICOR for the payment of P1.4
million had no basis, DATICORs obligation having
already been paid in full, overpaid in fact, when it paid
assignee FEBTC the amount of P6.4 million. This
decision was affirmed by the Supreme Court on appeal.
On April 25, 2000, petitioners filed before the
RTC of Makati a Complaint against FEBTC to recover the
balance of the excess payment of P4.335 million. The
case was docketed as Civil Case No. 00-540.
In its Answer, FEBTC denied responsibility, it
submitting that nowhere in the dispositive portion of the
CA Decision in CA-G.R. CV No. 50591 was it held liable
to return the whole amount of P5.435 million
representing the consideration for the assignment to it
of the receivables, and since petitioners failed to claim
the said whole amount in their original complaint in Civil
Case No. 94-1610 as they were merely claiming the
amount of P965,000 from it, they were barred from
claiming it.
On July 10, 2001, the trial court issued the
assailed Decision dismissing petitioner’s complaint on
the ground of res judicata and splitting of cause of
action.
Issue: Whether in filing an action against FEBTC for the
difference in its original claim and the claim adjudged by
the courts in CA-G.R. CV No. 50591, FEBTC forum-
shopped
Held: Yes, the filing of Civil Case No. 00-540 constitutes
forum shopping as the issue raised by petitioner is
covered by the doctrine of res judicata. Section 47 of
Rule 39 of the Rules of Court, on the doctrine
of res judicata, reads:
Sec. 47. Effect of judgments or final
orders. The effect of a judgment or final order
rendered by a court of the Philippines, having
jurisdiction to pronounce the judgment or final
order, may be as follows:
xxxx
(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 whichappears upon its face
to have been so adjudged, or which was actually
and necessarily included therein or necessary
thereto. (Underscoring supplied)
The above-quoted provision lays down two
main rules. Section 49(b) enunciates the first rule of res
judicata known as bar by prior judgment or estoppel by
judgment, which states that the judgment or decree of a
court of competent jurisdiction on the merits concludes
the parties and their privies to the litigation and
constitutes a bar to a new action or suit involving the
same cause of action either before the same or any
other tribunal.
Stated otherwise, bar by former judgment
makes the judgment rendered in the first case an
absolute bar to the subsequent action since that
judgment is conclusive not only as to the matters
offered and received to sustain it but also as to any
other matter which might have been offered for that
purpose and which could have been adjudged therein. It
is in this concept that the term res judicata is more
commonly and generally used as a ground for a motion
to dismiss in civil cases.
The second rule of res judicata embodied in
Section 47(c), Rule 39 is conclusiveness of
judgment. This rule provides that any right, fact, or
matter in issue directly adjudicated or necessarily
involved in the determination of an action before a
competent court in which a judgment or decree is
rendered on the merits is conclusively settled by the
judgment therein and cannot again be litigated between
the parties and their privies whether or not the claim or
demand, purpose, or subject matter of the two suits is
the same. It refers to a situation where the judgment
in the prior action operates as an estoppel only as to
the matters actually determined or which were
necessarily included therein.
In determining whether causes of action are
identical to warrant the application of the rule of res
judicata, the test is to ascertain whether the same
evidence which is necessary to sustain the second action
would suffice to authorize a recovery in the first even in
cases in which the forms or nature of the two actions
are different. Simply stated, if the same facts or
evidence would sustain both, the two actions are
considered the same within the rule that the judgment
in the former is a bar to the subsequent action.
There is no doubt that the judgment on appeal
relative to Civil Case No. 94-1610 (that rendered in CA-
Page 131
Civil Procedure
ESGUERRA NOTES
G.R. CV No. 50591) was a final judgment. Not only did it
dispose of the case on the merits; it also became
executory as a consequence of the denial of FEBTCs
motion for reconsideration and appeal.
Neither is there room to doubt that the
judgment in Civil Case No. 94-1610 was on the merits
for it determined the rights and liabilities of the parties.
To recall, it was ruled that: (1) DATICOR overpaid
by P5.3 million; (2) FEBTC was bound to refund the
excess payment but because DATICORs claim against
FEBTC was only P965,000, the court could only grant so
much as the relief prayed for; and (3) PDCP has no
further claim against DATICOR because its obligation
had already been paid in full. Right or wrong, that
judgment bars another case based upon the same cause
of action.
Immutability against Final Judgment
Griffith vs. Estur (2008)
Facts: On 25 July 1997, respondents Estur, Ofalsa,
and Ereve (respondents) filed an amended complaint for
illegal dismissal, nonpayment of legal holiday pay,
13th month pay, and service incentive leave pay against
Lincoln Gerald, Inc. (Lincoln) and petitioner Dominic
Griffith (petitioner).
Lincoln, a corporation owned by
the Griffith family, is engaged in the manufacture of
furniture. Respondents alleged that petitioner Dominic
Griffith, the Vice President for Southeast Asia
Operations, managed the corporation.
On 4 October 1999, Labor Arbiter Vicente
R. Layawen (Labor Arbiter Layawen) decided the case in
favor of respondents. Lincoln filed a notice of appeal
on 9 November 1999 but failed to file the required
memorandum of appeal. On 6 July 2001, the decision of
Labor Arbiter Layawen became final and executory, and
the first writ of execution was issued on 2 October 2001.
In February 2002, petitioner received a copy of the first
alias writ of execution dated 7 January 2002, issued by
Labor Arbiter Jaime Reyno (Labor Arbiter Reyno)
directed against him and Lincoln.
On 19 February 2002, petitioner filed a motion
to quash the first alias writ of execution. Petitioner
alleged in his motion that he was unaware of the labor
case filed against him because he was Lincolns Vice
President for Southeast Asia Operations only until 17
September 1997. Petitioner contended that the addition
of the execution fee in the writ in effect modified Labor
Arbiter Layawens decision, and thus nullified the
writ. Furthermore, petitioner maintained that as an
officer of Lincoln, he was not personally liable to pay the
judgment debt because he acted in good faith and within
the bounds of his authority. Labor Arbiter Reyno denied
the motion in an order dated 24 April 2002. Petitioner
filed a motion for reconsideration, which the National
Labor Relations Commission (NLRC) denied on 16 July
2002.
On 11 September 2002, Labor
Arbiter Reyno issued a second alias writ of execution
against petitioner and Lincoln.
Issue: Whether the petitioner Griffith can assail the
decision of Labor Arbiter Layawens based on the
defenses which he raised
Held: No. Labor Arbiter Layawens decision is already
final and executory and can no longer be the subject of
an appeal. Thus, petitioner is bound by
the decision and can no longer impugn the same.
Indeed, well-settled is the rule that a decision that has
attained finality can no longer be modified even if the
modification is meant to correct erroneous conclusions
of fact or law. The doctrine of finality of judgment is
explained in Gallardo-Corro v. Gallardo:
Nothing is more settled in law than that once a
judgment attains finality it thereby becomes immutable
and unalterable. It may no longer be modified in any
respect, even if the modification is meant to correct
what is perceived to be an erroneous conclusion of fact
or law, and regardless of whether the modification is
attempted to be made by the court rendering it or by
the highest court of the land. Just as the losing party
has the right to file an appeal within the prescribed
period, the winning party also has the correlative right
to enjoy the finality of the resolution of his case. The
doctrine of finality of judgment is grounded on
fundamental considerations of public policy and sound
practice, and that, at the risk of occasional errors, the
judgments or orders of courts must become final at
some definite time fixed by law; otherwise, there would
be no end to litigations, thus setting to naught the main
role of courts of justice which is to assist in the
enforcement of the rule of law and the maintenance of
peace and order by settling justiciable controversies with
finality.
While petitioner can no longer challenge the
decision which has become final and executory, he can
question the manner of its execution especially if it is
not in accord with the tenor and terms of the judgment.
As held in Abbott v. NLRC:
In Sawit v. Rodas and Daquis v. Bustos, we
held that a judgment becomes final and executory by
operation of law, not by judicial declaration. Accordingly,
finality of judgment becomes a fact upon the lapse of
the reglementary period of appeal if no appeal is
perfected. In such a situation, the prevailing party is
entitled as a matter of right to a writ of execution; and
issuance thereof is a ministerial duty, compellable
by mandamus.
In the instant case, however, what is sought to
be reviewed is not the decision itself but the manner of
its execution. There is a big difference. While it is true
that the decision itself has become final
and executory and so can no longer be challenged, there
is no question either that it must be enforced in
accordance with its terms and conditions. Any
deviation therefrom can be the subject of a proper
appeal.
Page 132
Civil Procedure
ESGUERRA NOTES
REMEDIES AGAINST JUDGMENTS OR FINAL
ORDERS
Remedies Before Finality Of Judgment
(1) Motion for reconsideration
(2) Motion for new trial
(3) Appeal
DEFINITION
A motion for reconsideration under Rule 37 is directed
against a judgment or final order. It is not the motion
for reconsideration of interlocutory order, which often
precedes a petition for certiorari under Rule 65. It does
not apply to cases that fall under Summary Procedure.
GROUNDS: [Rule 37, Sec. 1]
Grounds for Motion for New Trial:
(1) FAME – Fraud, accident, mistake, excusable
negligence
(a) Conditions:
(i) Which ordinary prudence could not have
guarded against; and
(ii) By reason of which such aggrieved party has
probably been impaired in his rights
NOTE: Fraud must be extrinsic fraud which means 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.
(2) Newly discovered evidence
(a) Requisites:
(i) It must have been discovered after the trial
(ii) It could not have been discovered and
produced at the trial even with the exercise of
reasonable diligence; and
(iii) The evidence is of such weight that if
admitted, would probably alter the result of the
action; and
(iv) It must be material and not merely collateral,
cumulative, or corroborative
Grounds for Motion for Reconsideration:
(1) Damages awarded are excessive
(2) Evidence is insufficient to justify the decision or final
order
(3) The decision or final order is contrary to law
WHEN TO FILE:
An aggrieved party may file a motion for new trial or
reconsideration within the period for taking an appeal.
The motions are filed with the court which rendered the
questioned judgment or final order.
The period for appeal is within 15 days after notice to
the appellant of the judgment or final order appealed
from. The 15-day period is deemed to commence upon
receipt by the counsel of record, which is considered
notice to the parties. Service upon the parties
themselves is prohibited and is not considered as official
receipt of judgment.
Effect of Filing – The filing of a timely motion interrupts
the period to appeal.
FORM AND CONTENTS [Rule 37, Sec. 2]
Form:
(1) The motion must comply with the provisions of Rule
15 otherwise it will not be accepted for filing and/or will
not suspend the running of the reglementary period.
(2) It shall be made in writing, stating the ground or
grounds therefor
(3) Written notice shall be served by movant on the
adverse party
NOTE: Non-compliance with this requirement would
reduce the motion to a mere pro forma motion, which
shall not toll the period for appeal.
Contents of a motion for new trial
(1) If based on FAME, it shall be supported by an
affidavit of merits
NOTE: An affidavit of merits is one which recites the
nature and character of FAME on which the motion is
based and stating the movant’s good and substantial
cause of action or defense and the evidence he intends
to present if granted
(2) If based on newly found evidence, it shall be
supported by:
(a) Affidavits of witnesses by whom such evidence is
expected or given; or
(b) Duly authenticated documents which are
proposed to be introduced in evidence
Contents of a motion for reconsideration
(1) Shall point out specifically the findings or conclusions
of the judgment or final order which are not supported
by evidence or which are contrary to law
(2) Make express reference to testimonial or
documentary evidence or provisions of law alleged to be
contrary to such findings or conclusions
RESOLUTION OF MOTION AND COURT ACTION
Court action – The court may: [Rule 37, Sec. 3]
(1) Set aside the judgment or final order and grant a
new trial; or upon such terms as may be just
(2) Deny the motion
(3) Amend such judgment or final order accordingly if:
(a) The court finds that excessive damages have
been awarded or that; or
(b) That the judgment or final order is contrary to
the evidence or law
Resolution [Rule 37, Sec. 4] – he motion shall be
resolved within 30 days from submission
The 30-day period to resolve the motion is held to be
mandatory [Gonzales v. Bantolo (2006)]
GRANT OF THE MOTION; EFFECT
Grant of motion for reconsideration
The court may amend the judgment or final order
accordingly. The amended judgment is in the nature of a
new judgment, which supersedes the original judgment.
Grant of motion for new trial
The original judgment shall be vacated, and the action
shall stand for trial de novo. The recorded evidence
upon the former trial shall be used at the new trial
without retaking them (if they are material and
competent).
Partial grant
Rule 37, Sec. 7 allows the court to order a new trial or
grant reconsideration as to such issues if severable
without interfering with the judgment or final order upon
the rest.
Page 133
Civil Procedure
ESGUERRA NOTES

REMEDY WHEN MOTION IS DENIED; FRESH 15- If a new trial is If the court finds that
DAY RULE granted, originalexcessive damages have
Effect of Denial of Motion – The judgment or final order judgment or final orderbeen awarded or that the
shall stand as is is vacated. judgment or final order is
Single-Motion Rule [Rule 37, Sec. 5] The case stands for contrary to the evidence or
A party shall not be allowed to file a 2nd motion for trial de novo and will law, it may amend such
reconsideration. be tried anew judgment or final order
 Follow the Omnibus Motion Rule accordingly
Available even on Available against the
NOTE: While a 2nd motion for reconsideration is not appeal but only on the judgments or final orders or
allowed, a second motion for new trial is authorized ground of newly both the trial and appellate
 However, it must be based on a ground not discovered evidence courts
existing nor available when the 1st motion was * Both are prohibited motions under Summary
made within the period allowed but excluding Procedure
the time during which the first motion had
APPEALS IN GENERAL
been pending.
NATURE OF APPEAL
Fresh 15-Day Rule: The aggrieved party has a “fresh
period” of 15 DAYS within which to file his appeal. (1) Not a natural right nor a part of due process
If the motion is denied, the movant has a “fresh period” (2) It is merely a statutory right, and may be exercised
of 15 days from receipt or notice of the order denying only in the manner and in accordance with provisions of
the motion for new trial or motion for reconsideration the law. It must comply with the requirements; failing to
within which to file an appeal. [Neypes v. CA, 2005] do so, the right to appeal is lost
(3) Once granted, appeals become part of due process
NOTES: and should be liberally applied in favor of the right to
(1) This fresh period becomes significant only when a appeal
party opts to file a motion for new trial or
reconsideration JUDGMENTS AND FINAL ORDERS SUBJECT TO
(2) This rule does not refer to the period within which to APPEAL; MATTERS NOT APPEALABLE
appeal from the order denying the motion for
reconsideration but to the period within which to appeal Rule 41, Sec. 1, as amended by AM 07-7-12-SC (2007)
from the judgment itself. provides:

Filing of a proper motion for new trial interrupts the (1) Appeal may be taken from a judgment or final order
running of the period of appeal which begins to run that completely disposes of the case, or of a particular
again from receipt of the notice of the movant of the matter therein when declared by the Rules to be
order denying his motion (fresh 15 day period) [Phil. appealable
Commercial and Industrial Bank v. Ortiz]
(2) No appeal may be taken from:
Remedies if Motion is DENIED: (a) An order denying a petition for relief or any
(1) To appeal from the judgment or final order itself similar motion seeking relief from judgment;
(2) The order denying the motion may itself be assailed
by a petition for certiorari under Rule 65 (b) An interlocutory order;
(3) Rule 37, Sec. 9 says that an order denying a motion
for new trial or reconsideration is NOT appealable (c) An order disallowing or dismissing an appeal;
(a) NOTE HOWEVER: AM 07-7-12 amended Sec. 1 of
Rule 41 by deleting “An order denying a motion for (d) An order denying a motion to set aside a
new trial or reconsideration” from the non-appealable judgment by consent, confession or compromise on
orders. the ground of fraud, mistake or duress, or any
other ground vitiating consent;
Motion for New Trial Motion for
Reconsideration (e) An order of execution;
Grounds: Grounds:
(1) Fraud, accident, (1) Damages awarded are (f) A judgment or final order for or against one or
mistake, or excusable excessive more of several parties or in separate claims,
negligence (2) That evidence is counterclaims, cross-claims and third-party
(2) Newly discovered insufficient to justify the complaints, while the main case is pending, unless
evidence decision or final order the court allows an appeal therefrom; and
(3) 3. That decision or final
order is contrary to law (g) An order dismissing an action without prejudice.

Second motion may be Second motion from the NOTE: AM 07-7-12-SC removed from the original list “an
allowed so long as same party is prohibited. order denying a motion for new trial or reconsideration.”
based on grounds not The prohibition applies only NOTE, HOWEVER: Rule 37, Sec. 9 which states that no
existing or available at to final orders or judgments, appeal can be made from an order denying MR or MNT.
the time the first hence it is allowed in
motion was made interlocutory orders Only final judgments or orders can be appealed as
distinguished from interlocutory judgments or orders
which are not appealable.

Page 134
Civil Procedure
ESGUERRA NOTES

Final Order Interlocutory Order ISSUES TO BE RAISED ON APPEAL

Disposes of the matter in its Does not dispose of a case Appeal is limited to cognizable judgments/issues.
entirety, leaving nothing completely but leaves The appellate court has no jurisdiction to review a
more to be done but to something more to be judgment which is immediately final and executory by
enforce execution decided upon. express provision of law. [Republic v. Bermudez-Lorino
Appealable Not appealable except (2005)]
through a petition for Rationale: Appeal is merely a privilege conferred by law
certiorari under Rule 65 upon the litigants.
Must clearly and distinctly No need to comply with A party cannot change the theory on appeal. Only issues
state the law and the facts such a requirement pleaded in the lower court and properly raised may be
on which it is based resolved by the appellate court. [Medina v. CA (1992)]
However, issues which are inferred from or necessarily
connected with the issue properly raised and pleaded
An interlocutory order is one that does not finally may be resolved by the appellate court. [Espina v. CA
dispose of the case, and does not end the court's task of (1992)]
adjudicating the parties’ contentions and determining
their rights and liabilities as regards each other, but RELIEF FROM JUDGMENTS, ORDERS, AND OTHER
obviously indicates that other things remain to be done. PROCEEDINGS
[BPI v. Lee (2012)] [Rule 38]

CONCEPT
REMEDY AGAINST JUDGMENTS AND ORDERS Remedies AFTER finality of judgment
WHICH ARE NOT APPEALABLE (1) Petition for relief [Rule 38]
The aggrieved party may file a special civil action under (2) Action to Annul Judgment [Rule 47]
Rule 65. [Rule 41, Sec. 1] (3) Collateral Attack of a Judgment that is Void on its
Face
MODES OF APPEAL
A petition for relief from judgment together with a
(1) Ordinary appeal – Rule 40 and 41 motion for new trial and a motion for reconsideration are
(a) Notice of appeal remedies available only to parties in the proceedings
(b) Record on appeal where the assailed judgment is rendered. In fact, it has
(2) Petition for review – Rule 42 been held that a person who was never a party to the
(3) Petition for review on certiorari – Rule 45 case, or even summoned to appear therein, cannot avail
of a petition for relief from judgment [Alaban v. Cam]
NOTE: This is not applicable to the SC since it is not a
trier of facts.
Ordinary Petition for Petition for
Appeal Review Review on
RULE 37 v. RULE 38
Certiorari
Appeal by writ of Rule 42 Rule 45
Rule 37 Rule 38
error
Available BEFORE judgment Available AFTER judgment has
becomes final and executory become final and executory
Case is decided Case decided by Case decided by
by RTC in its RTC in the the RTC, CA, CTA, Applies to judgments or final Applies to judgments, final
original exercise of its and orders only orders and other proceedings
jurisdiction appellate Sandiganbayan Grounds: (1) FAME and (2) Ground: FAME
jurisdiction Newly discovered evidence
Appealed to the Petition for review Appealed to the Filed within the time to Filed within 60 days from
CA with the CA SC appeal knowledge of judgment and
File notice of File a verified File verified within 6 months from entry of
appeal or record petition for review petition for review judgment
of appeal with with CA. on certiorari with If denied, order of denial is If denied, order denying a
court of origin Pay docket and the SC. not appealable; hence, petition for relief is not
and give a copy lawful fees and Pay docket and remedy is appeal from appealable; remedy is
to adverse party P500 as deposit lawful fees and judgment appropriate civil action under
for costs with the P500 for costs. Rule 65
CA. Submit proof of Legal remedy Equitable remedy
Furnish RTC and service of a copy Motion need not be verified Petition must be verified
adverse party a to the lower court
copy of such and adverse party Rule 37 and Rule 38 are EXCLUSIVE remedies.
A party who has filed a timely motion for new trial
Within 15 days Within 15 days Within 15 days and/or reconsideration cannot file a petition for relief
from notice of from notice of from notice of after his motion has been denied.
judgment for decision to be judgment or order A party who has filed a timely motion for new trial or
notice of appeal reviewed or from of denial of MFR motion for reconsideration can no longer file a petition
and 30 days for denial of a MFR or or MFNT for relief from judgment after his motion has been
records on MFNT denied. These remedies are mutually exclusive. It is only
appeal in appropriate cases where a party aggrieved by the
judgment has not been able to file a motion for new trial
or motion for reconsideration that a petition for relief
can be filed. [Francisco v. Puno, 1981]

Page 135
Civil Procedure
ESGUERRA NOTES
WHEN PROPER
Rule 38 can be availed of once the judgment has
become final and executory.
The relief provided for by Rule 38 is of equitable
character and is only allowed in exceptional cases, that
is where there is no other available or adequate remedy.
A petition for relief is not regarded with favor and
judgment will not be disturbed where the party
complaining has or by his exercising proper diligence
would have had an adequate remedy at law, as where
petitioner could have proceeded by appeal to vacate or
modify the default judgment. [Manila Electric v. CA
(1990)]
Under Sec. 1, it is also available when “any other
proceeding is thereafter taken against the petitioner in
any court through FAME”
Thus, it was held that a petition for relief is also
applicable to a proceeding taken after entry of judgment
or final order such as an order of execution [Cayetano v.
Ceguerra] or an order dismissing an appeal [Medran v.
CA]
WHERE FILED
Rule 38 is not an independent action but a continuation
of the old case. Hence, it is filed with the same court
and same branch which decided the case.
GROUNDS [Rule 38, Sec. 1 and 2]
(1) When judgment or final order is entered or any other
proceeding is thereafter taken against petitioner through
FAME
(2) When petitioner has been prevented from taking an
appeal by FAME
PERIOD FOR FILING [Rule 38, Sec. 3]
(1) Within 60 days after petitioner learns of the
judgment, final order, or other proceeding to be set
aside; AND
(2) Not more than 6 months after such judgment or final
order was entered, or such proceeding was taken
The two periods for the filing of a petition for relief are
not extendible and never interrupted. Both periods must
be complied with. [Phil. Rabbit Bus Lines Inc. v. Ariaga]
Reckoning points:
(1) The 60-day period is reckoned from the time the
party acquired knowledge of the order, judgment or
proceeding. Not from the date he actually read the same
[Perez v. Araneta]
(2) 6-months period is computed from the date of entry
of the order or judgment
FORM AND CONTENTS OF THE PETITION
(1) The petition for relief must be verified
(2) The petition must be accompanied by an affidavit
showing the FAME relied upon; and
(3) The affidavit of merit accompanying the petition
must also show the facts constituting the petitioner’s
good and substantial cause of action or defense as the
case may be
The absence of an affidavit of merits is a fatal defect and
warrant denial of the petition [Fernandez v. Tan Tiong
Tick].
However, it is not a fatal defect so long as the facts
required to be set out also appear in the verified petition
[Fabar Inc. v. Rodelas].
When Affidavit of Merit is not necessary:
(1) When there is lack of jurisdiction over the
defendant;
(2) When there is lack of jurisdiction over the subject
matter;
(3) When judgment was taken by default;
(4) When judgment was entered by mistake or was
obtained by fraud; or
(5) Other similar cases.
ORDER TO FILE ANSWER
[Rule 38, Sec. 4]
An order to answer shall issue only if petition is
sufficient in form and substance.
If petition is sufficient in form and in substance, the
court shall issue an order requiring the adverse party to
answer within 15 days from receipt thereof.
PROCEEDINGS AFTER ANSWER IS FILED [Rule 38,
Sec. 6]
After filing of answer or expiration of the period therefor,
court shall hear the petition.
If the court finds that the allegations are not true –
Petition is dismissed.
If the court finds that allegations are true:
(1) It shall set aside the judgment, final order, or other
proceeding complained of upon such terms as may be
just
(2) Thereafter, case shall stand as if such had never
been rendered, issued, or taken
(3) The court shall then proceed to hear and determine
the case as if timely motion for new trial or
reconsideration has been granted by it
REMEDY FOR DENIAL OF PETITION FOR RELIEF.
Appeal from an order denying a petition for relief is no
longer available under the present rules.
The remedy against a denial of a petition for relief is
certiorari under Rule 65, when proper.
ANNULMENT OF JUDGMENTS OR FINAL ORDERS
AND RESOLUTIONS
[Rule 47]
Annulment of Judgment is a remedy in law independent
of the case where the judgment sought to be annulled
was rendered and may be availed of though the
judgment has been executed.
Page 136
Civil Procedure
ESGUERRA NOTES

Effect of motion for extension of time

Rule 37 - The period of appeal shall be interrupted by a
New Trial or Reconsideration timely motion for new trial or reconsideration.

Not required for appeal

Grounds and nature (Rule 37, Sec. 1)
Second motion for new trial
Motion for New Trial Sec. 5. Second motion for new trial.
Within the period for taking an appeal, the aggrieved A motion for new trial shall include all grounds then
party may move the trial court to set aside the available and those not so included shall be deemed
judgment or final order and grant a new trial for one or waived. A second motion for new trial, based on a
more of the following causes materially affecting the ground not existing nor available when the first motion
substantial rights of said party: was made, may be filed within the time herein provided
(a) Fraud, accident, mistake or excusable excluding the time during which the first motion had
negligence (FAME) which ordinary prudence could been pending.
not have guarded against and by reason of which such
aggrieved party has probably been impaired in his Second motion for reconsideration
rights; or
PCI Leasing and Finance, Inc. v. Milan (2010)
(b) Newly discovered evidence, which he could
not, with reasonable diligence, have discovered and
Facts: The instant case was commenced on February
produced at the trial, and which if presented would
18, 2000, upon the filing of a Complaint for Sum of
probably alter the result.
Money[6] by petitioner PCI Leasing and Finance, Inc.
(PCI Leasing) against herein respondents Antonio C.
Distinguish from motion to reopen trial
Milan (Antonio) and Laura M. Milan. The complaint was
A motion to reopen the trial is different and distinct from
docketed as Civil Case No. Q-00-40010 in the RTC of
a motion for new trial.
Quezon City, Branch 226.
For one thing, a motion to reopen may properly be
On March 2, 2000, the RTC issued summons to
presented only after either or both parties have formally
respondents, addressed to their place of residence as
offered, and closed their evidence, but before judgment.
stated in the complaint, which is at No. 47 San Ildefonso
On the other hand, a motion for new trial is proper only
Drive, Torres Village, Novaliches, Quezon City.
after rendition or promulgation of judgment.
On March 10, 2000, the process server of the
For another, a motion for reopening, unlike a motion for
RTC filed his Officers Return, stating that he went to the
new trial, is not specifically mentioned and prescribed as
aforementioned address on two occasions to serve the
a remedy by the Rules of Court. There is no specific
summons and the copy of the complaint to the
provision in the Rules of Court governing motions to
respondents. At both times, however, the process server
reopen. It is albeit a recognized procedural recourse or
was told by the people he encountered there that
device, deriving validity and acceptance from long,
respondents had already transferred to an unknown
established usage.
location. The summons and the copy of the complaint
were, thus, returned unserved.
A motion for new trial in civil or criminal actions may be
applied for and granted only upon specific, well-defined
In view of the above situation, PCI Leasing
grounds, set forth respectively in Rules 37 (Section 1)
filed on April 10, 2000 a Motion to Archive Civil Case No.
and 121 (Section 2). On the other hand, the reopening
Q-00-40010, asserting that it was then conducting an
of a case for the reception of additional evidence after a
investigation in order to ascertain the whereabouts of
case has been submitted for decision but before
the respondents. PCI Leasing prayed that the case be
judgment is actually rendered is, it has been said,
archived, subject to its reinstatement after the
controlled by no other rule than that of the paramount
whereabouts of the respondents was determined.
interests of justice, resting entirely in the sound judicial
discretion of a Trial Court; and its concession, or denial,
In an Orderdated April 13, 2000, the RTC
by said Court in the exercise of that discretion will not
denied the Motion to Archive given that the
be reviewed on appeal unless a clear abuse thereof is
circumstances of the case were not within the purview of
shown. A brief review of precedents treating of the
the provisions of paragraph II (c) of Administrative
matter of reopening a trial provides a clearer insight into
Circular No. 7-A-92 (Guidelines in the Archiving of Cases
the nature of the remedy, and is not inutile at this point.
(Alegre v. Reyes, G.R. No. L-56923, 9 May 1988)
Subsequently, on July 13, 2000, the RTC
issued an Order,[16] directing PCI Leasing to take the
Motion for Reconsideration
necessary steps to actively prosecute the instant case
within ten days from receipt under pain of dismissal of
Within the same period, the aggrieved party may also
the case for lack of interest.
move for reconsideration upon the grounds that the
damages awarded are excessive, that the evidence
On July 31, 2000, PCI Leasing filed a Motion
is insufficient to justify the decision or final order,
for Issuance of Alias Summons.[17] Said motion was,
or that the decision or final order is contrary to law.
however, denied by the RTC via an Order[18] dated
Periods
August 3, 2000 on the ground that the same was a mere
scrap of paper for apparently containing a defective
For filing - Within the period for taking an
notice of hearing.
appeal

Page 137
Civil Procedure
ESGUERRA NOTES
On September 5, 2000, PCI Leasing filed
another Motion for Issuance of Alias Summons, which
the RTC scheduled for hearing on October 13, 2000.
During the hearing of the motion on said date, there was
no appearance from both counsels of PCI Leasing and
respondents. Accordingly, the RTC issued an Order
dated October 13, 2000 dismissing the instant case.
PCI Leasing sought a reconsideration of the
above Order. In a Resolution dated January 4, 2001, the
RTC denied the Motion for Reconsideration. On January
26, 2001, PCI Leasing filed an Ex Parte Motion for
Reconsideration, once more seeking a reconsideration of
the dismissal of its case. Given the alleged amount of
the respondents liability, PCI Leasing stressed that it
had a valid cause of action against the former and it
never lost interest in the prosecution of its case. PCI
Leasing then implored the RTC to revisit the Order dated
October 13, 2000 and the Resolution dated January 4,
2001 to make the dismissal without prejudice, in order
for PCI Leasing to maintain its right to re-file its legal
claim against respondents.
The RTC denied the Ex Parte Motion for
Reconsideration in a Resolution dated April 6, 2001. The
trial court observed, inter alia, that the Ex Parte Motion
was already the second motion for reconsideration filed
by PCI Leasing. Also, the RTC made mention of the
provisions of Section 3, Rule 17of the Rules of Court
relating to the dismissal of a case due to the fault of a
plaintiff.
On May 11, 2001, PCI Leasing filed a Notice of
Appeal in an attempt to challenge the Order dated
October 13, 2000 of the RTC, as well as the Resolutions
dated January 4, 2001 and April 6, 2001. On August 3,
2001, the RTC rendered a Resolution dismissing the
Notice of Appeal, given that the same was filed beyond
the reglementary period.
Held: No party shall be allowed a second motion for
reconsideration of a judgment or final order. A second
motion for reconsideration is a prohibited pleading.
For resolution
Sec. 4. Resolution of motion.
A motion for new trial or reconsideration shall be
resolved within thirty (30) days from the time it is
submitted for resolution.
Contents
In General
Sec. 2. Contents of motion for new trial or
reconsideration and notice thereof.
The motion shall be made in writing stating the ground
or grounds therefor, a written notice of which shall be
served by the movant on the adverse party. 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.
Sec. 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.
Motion for new trial
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.
Motion for reconsideration
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.
Pro forma motion and its effects
A pro forma motion for new trial or reconsideration shall
not toll the reglementary period of appeal.
Marina Properties Corp. v. CA (1998)
Facts: Petitioner Marina Properties Corporation
(MARINA for short) is a domestic corporation engaged in
the business of real estate development. Among its
projects is a condominium complex project, known as
the MARINA BAYHOMES CONDOMINIUM PROJECT
consisting of 10 building clusters with 31 housing units
to be built on a parcel of land at Asiaworld City, Coastal
Road in Paranaque, Metro Manila. The area is covered by
T.C.T. No. (121211) 42201 of the Registry of Deeds of
the same municipality.
The construction of the project commenced
sometime in 1988, with respondent H.L. Carlos
Construction, Inc. (H.L. CARLOS for brevity) as the
principal contractor, particularly of Phase III. CARLOS to
purchase a condominium unit therein known as Unit B-
121. Thus, on October 9, 1988, the parties entered into
a Contract to Purchase and to Sell covering Unit B-121
for P3,614,000.00. H.L. CARLOS paid P1,034,200.00 as
downpayment, P50,000.00 as cash deposit and
P67,024.22 equivalent to 13 monthly amortizations.
After paying P1,810,330.70, which was more
than half of the contract price, H.L. CARLOS demanded
for the delivery of the unit, but MARINA refused. H.L.
CARLOS filed the instant complaint for specific
performance with damages against MARINA with the
Housing and Land Use Regulatory Board (HLURB).
Page 138
Civil Procedure
ESGUERRA NOTES
In its answer, MARINA claimed that its
cancellation of the Contract to Purchase and Sell is
justified since H.L. CARLOS has failed to pay its monthly
installment since October 1989 or for a period of almost
two (2) years; that H.L. CARLOS abandoned its work on
the project as of December 1989; and that the instant
case should have been suspended in view of the
pendency of Civil Case No. 89-5870 for damages in the
Makati RTC involving the same issues.
On February 21, 1992, the HLURB, through
Atty. Abraham N. Vermudez, Arbiter, rendered a
decision, declaring the cancellation of the subject
Contract to Sell as null and void.
Whereupon, MARINA interposed an appeal to
the Board of Commissioners of HLURB (First Division)
which affirmed the assailed decision. On further appeal
to the Office of the President, the decision of the Board
of Commissioners (First Division) was affirmed.
MARINA filed a motion for reconsideration but
was denied.
The Court of Appeals sustained MARINA as
regards the award of actual damages, finding that no
evidence was presented to prove the P30,000.00 award
as monthly rental for the condominium unit. However,
as to the pronouncement of the Office of the President
that MARINAs motion for reconsideration was merely
pro-forma, the Court of Appeals noted that MARINA did
not raise any new issue in its motion for reconsideration.
In the same vein, respondent court ruled that MARINA
was not deprived of its right to appeal.
The Court of Appeals likewise brushed aside
MARINAs assertion that the complaint should have been
dismissed on the ground of litis pendentia.
There is no dispute that the case at bench and
Civil Case No. 89-5870 for damages at the Makati RTC
involves the same parties although in the civil case, the
officers of MARINA have been impleaded as co-
defendants. While the first requisite obtains in this case,
the last two are conspicuously absent.
It will be observed that the two cases involve
distinct and separate causes of action or rights asserted.
Civil Case No. 89-5870 is for the collection of sums of
money corresponding to unpaid billings and labor costs
incurred by H.L. CARLOS in the construction of the
project under the Construction Contract agreed upon by
the parties. Upon the other hand, the case at bench is
for specific performance (delivery of the condominium
unit) and damages arising from the unilateral
cancellation of the Contract to Purchase and to Sell by
MARINA.
Moreover, the reliefs sought are also different.
In the civil case, H.L. CARLOS prays for the award of
P7,065,885.03 representing unpaid labor costs, change
orders and price escalations including the sum of
P2,000,000.00 as additional compensatory damages. In
the instant case, H.L. CARLOS seeks not only the
awa[r]d of actual and exemplary damages but also the
delivery of the condominium unit upon MARINAs
acceptance of the monthly amortization on the
remaining balance, the execution of a final deed of sale
and the delivery of the title to the said private
respondent.
MARINAs claim that the present complaint
should be dismissed on the ground of splitting a cause of
action, deserves scant consideration. The two
complaints did not arise from a single cause of action
but from two separate causes of action. It bears
emphasis that H.L. CARLOS cause of action in the civil
case stemmed from the breach by MARINA of its
contractual obligation under the Construction Contract,
while in the case at bench, H.L. CARLOS cause of action
is premised on the unilateral cancellation of the Contract
to Purchase and Sell by MARINA.
Accordingly, the Court of Appeals affirmed the
Order of the Office of the President but deleted the
award of actual damages.
Held: Although a motion for reconsideration merely
reiterate the issues already passed upon by the court,
that by itself does not make it pro forma and is
immaterial because what is essential is compliance with
the requisites of the Rules. An aggrieved party is
allowed one motion for reconsideration of the assailed
decision or final order before he may file a petition for
review with the CA.
Republic v. ICC (2006)
Facts: On April 4, 1995, respondent ICC, holder of a
legislative franchise under Republic Act (RA) No. 7633 to
operate domestic telecommunications, filed with the NTC
an application for a Certificate of Public Convenience and
Necessity to install, operate, and maintain an
international telecommunications leased circuit service
between the Philippines and other countries, and to
charge rates therefor, with provisional authority for the
purpose.
In an Order dated June 4, 1996, the NTC
approved the application for a provisional authority
subject to conditions. Respondent ICC filed a motion
for partial reconsideration of the Order insofar as the
same required the payment of a permit fee. In a
subsequent Order dated June 25, 1997, the NTC denied
the motion.
Therefrom, ICC went to the CA on a petition
for certiorari with prayer for a temporary restraining
order and/or writ of preliminary injunction, questioning
the NTC's imposition against it of a permit fee of
P1,190,750.50 as a condition for the grant of the
provisional authority applied for.
In its original decision dated January 29,
1999, the CA ruled in favor of the NTC whose
challenged orders were sustained, and accordingly
denied ICC's certiorari petition
In time, ICC moved for a reconsideration.
This time, the CA, in its Amended Decision dated
September 30, 1999, reversed itself. Petitioner NTC
filed a motion for reconsideration, but its motion was
denied by the CA in a Resolution dated January 24,
2000.
Held: The mere fact that a motion for reconsideration
reiterates issues already passed upon by the court does
not, by itself, make it a pro forma motion. Among the
ends to which a motion for reconsideration is addressed
is precisely to convince the court that its ruling is
erroneous and improper, contrary to the law or
evidence. The movant has to dwell of necessity on
issues already passed upon.
Page 139
Civil Procedure
ESGUERRA NOTES
Action by court
Options in general
Sec. 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.
Grant of motion for new trial
Sec. 6. Effect of granting of motion for new trial.
If a new trial is granted in accordance with the
provisions of this Rule, the original judgment or final
order shall be vacated, and the action shall stand for
trial de novo; but the recorded evidence taken upon the
former trial, in so far as the same is material and
competent to establish the issues, shall be used at the
new trial without retaking the same.
Partial new trial or reconsideration
Sec.7. Partial new trial or reconsideration.
If the grounds for a motion under this Rule appear to
the court to affect the issues as to only a part, or less
than all of the matter in controversy, or only one, or less
than all, of the parties to it, the court may order a new
trial or grant reconsideration as to such issues if
severable without interfering with the judgment or final
order upon the rest.
Sec. 8. Effect of order for partial new trial.
When less than all of the issues are ordered retried, the
court may either enter a judgment or final order as to
the rest, or stay the enforcement of such judgment or
final order until after the new trial.
Denial Remedy
Sec. 9. Remedy against order denying a motion for new
trial or reconsideration.
An order denying a motion for new trial or
reconsideration is not appealable, the remedy being an
appeal from the judgment or final order.
APPEAL
ORDINARY APPEAL
Rule 40
MTC to RTC
Where to appeal
Sec. 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 be further referred to as the appellant and the
adverse party as the appellee.
When to appeal
Sec. 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 allowed.
How to appeal
Sec. 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
timeliness 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
the following:
(Section 6, Rule 41)
a. Full names of all the parties to the
proceedings shall be stated in the caption of
the record on appeal;
b. Include the judgment or final order from
which the appeal is taken;
c. 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;
d. Together with such data as will show that
the appeal was perfected on time.
e. Every record on appeal exceeding twenty
(20) pages must contain a subject index.
Copies of the notice of appeal and the record on appeal
where required, shall be served on the adverse party.
Perfection of appeal
Sec. 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 from, specify the court to which the
appeal is being taken, and state the material dates
showing the timeliness of the appeal.
Appeal is deemed perfected (Rule 41, Sec. 9):
a. By notice of appeal: as to him, upon
the filing of the notice of appeal in
due time; and
b. By record on appeal: as to him, with
respect to the subject matter thereof,
upon the approval of the record of
appeal filed in due time.
Page 140
Civil Procedure
ESGUERRA NOTES
Appellate court docket and other lawful fees
Sec. 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. N.B Same as (Rule 41, Sec. 4)
Procedure in RTC
Sec. 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 appellant’s 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 the 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.
Appeal from MTC order dismissing case
a. Without Trial on the Merits
Sec. 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 case of reversal, the case shall
be remanded for further proceedings.
b. With Trial on the Merits
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.
MTC without jurisdiction
Encarnacion v. Amigo (2006)
Facts: On April 11, 1995, petitioner became the owner
of a parcel of land by virtue of a waiver of rights
executed by his mother-in-law, which he thereafter
subdivided into two lots.
Sometime in 1985, respondent allegedly entered the
premise and took possession of a portion of the property
without the permission of the predecessor-in-interest of
the said property.
On March 2, 2001, petitioner filed a complaint
for ejectment (unlawful detainer) with the MTC after his
February 1, 2001 letter to the respondent demanding
that the latter vacate the premises remained unheeded.
The letter was received by the respondent on February
12, 2001.
Respondent alleged that he has been in actual
possession and occupation of a portion of the subject
land since 1968.
The MTC rendered judgment in favor of the
plaintiff, but the RTC dismissed the case on appeal, on
the ground that the MTC has no jurisdiction over the
case. Hence the latter acquired no appellate jurisdiction
over thereof.
Petitioner filed a petition for review before the
Court of Appeals, which remanded the case to the RTC
for the proper action.
Held: The RTC should have taken cognizance of the
case. If the case is tried on the merits by the Municipal
Court without jurisdiction over the subject matter, the
RTC on appeal may no longer dismiss the case if it has
original jurisdiction thereof. Moreover, the RTC shall no
longer try the case on the merits, but shall decide the
case on the basis of the evidence presented in the lower
court, without prejudice to the admission of the
amended pleadings and additional evidence in the
interest of justice.
MTC with jurisdiction
Canlas v. Tubil (2009)
Facts: On June 9, 2004, a complaint for unlawful
detainer was filed by respondent Iluminada Tubil against
petitioners Rodolfo Canlas, Victoria Canlas, Felicidad
Canlas and spouses Pablo and Charito Canlas before the
MTC. The pertinent allegations read:
Petitioners filed a motion to dismiss alleging
that the MTC is without jurisdiction over the subject
matter, and that the case was not prosecuted in the
name of the real parties in interest.
On September 14, 2004, the MTC denied the
motion because the grounds relied upon were
evidentiary in nature which needed to be litigated.
Thus, petitioners filed their answer where they
denied the allegations in the complaint. They claimed
that together with their predecessors-in-interest, they
had been in open, continuous, adverse, public and
uninterrupted possession of the land for more than 60
years; that respondents title which was issued pursuant
to Free Patent No. 03540 was dubious, spurious and of
unlawful character and nature; and that respondents
cause of action was for an accion publiciana, which is
beyond the jurisdiction of the MTC.
On October 23, 2006, the MTC rendered
judgment dismissing the complaint for unlawful detainer
because respondent failed to show that the possession
of the petitioners was by mere tolerance.
Respondent appealed to the RTC which
rendered its Decision on April 11, 2007 affirming in toto
the judgment of the MTC. Respondent filed a motion for
reconsideration but it was denied in an Orderdated June
Page 141
Civil Procedure
ESGUERRA NOTES
8, 2007.
Respondent filed a petition for review with the
Court of Appeals, which rendered the assailed decision
on June 12, 2008, which reversed the Regional Trial
Courts Decision.
Petitioners moved for reconsideration but it
was denied by the Court of Appeals in its September 1,
2008 Resolution.
Held: 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.
Rule 41
RTC to CA
Subject of appeal
Sec.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:
(a) An order denying a motion for new trial or
reconsideration;
(b) An order denying a petition for relief or any similar
motion seeking relief from judgment;
(c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) 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;
(f) An order of execution;
(g) A judgment or final order for or against one or more
of several parties or in separate claims, counterclaims,
crossclaims and third-party complaints, while the main
case is pending, unless the court allows an appeal
therefrom; and
(h) An order dismissing an action without prejudice.
In all the above instances where the judgment or final
order is not appealable, the aggrieved party may file an
appropriate special civil action under Rule 65.
Non-appealable orders
AM 07-7-12-SC dated 4 December 2007
Amendments to Rules 41, 45, 58, and 65
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 a petition for relief or any similar
motion seeking relief from judgment;
2. An interlocutory order;
3. An order disallowing or dismissing an appeal;
4. An order denying a motion to set aside a judgment
by consent, confession or compromise on the ground of
fraud, mistake or duress, or any other ground vitiating
consent;
5. An order of execution;
6. A judgment or final order for or against one or more
of several parties or in separate claims, counterclaims,
cross-claims and third-party complaints, while the main
case is pending, unless the court allows an appeal
therefrom; and
7. An order dismissing an action without prejudice.
In any of the foregoing circumstances, the aggrieved
party may file an appropriate special civil action as
provided in Rule 65.
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, the Regional
Trial Court or other courts, 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 questions of
law, which 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.
RULE 58
SEC. 5. Preliminary injunction not granted without
notice; exception.
No preliminary injunction shall be granted without
hearing and prior notice to the party or persons 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 ex parte 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 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. The court shall also
determine, within the same period, whether or not the
preliminary injunction shall be granted, and accordingly
issue the corresponding order.
However, 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 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.
Page 142
Civil Procedure
ESGUERRA NOTES
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.
The trial court, the Court of Appeals, the Sandiganbyan
or the Court of Tax Appeals that issued a writ of
preliminary injunction against a lower court, board,
officer, or quasi-judicial agency shall decide the main
case or petition within six (6) months from the issuance
of the writ.
RULE 65
Sec. 4. When and where to file the petition.
The petition shall be filed not later than sixty (60) days
from notice of the judgment, order or resolution. In case
a motion for reconsideration or new trial is timely filed,
whether such motion is required or not, the petition
shall be filed not later than sixty (60) days counted from
the notice of the denial of the motion.
If the petition relates to an act or an omission of a
municipal trial court or of a corporation, a board, an
officer or a person, it shall be filed with the Regional
Trial Court exercising jurisdiction over the territorial area
as defined by the Supreme Court. It may also be filed
with the Court of Appeals or with the Sandiganbayan,
whether or not the same is in aid of the court’s appellate
jurisdiction. If the petition involves an act or an omission
of a quasi-judicial agency, unless otherwise provided by
law or these rules, the petition shall be filed with and be
cognizable only by the Court of Appeals. In election
cases involving an act or an omission of a municipal or a
regional trial court, the petition shall be filed exclusively
with the Commission on Elections, in aid of its appellate
jurisdiction.
Sec. 7. Expediting proceedings; injunctive relief.
The court in which the petition is filed may issue orders
expediting the proceedings, and it may also grant a
temporary restraining order or a writ of preliminary
injunction for the preservation of the rights of the
parties pending such proceedings. The petition shall not
interrupt the course of the principal case, unless a
temporary restraining order or a writ of preliminary
injunction has been issued, enjoining the public
respondent from further proceeding with the case.
The public respondent shall proceed with the principal
case within ten (10) days from the filing of a petition for
certiorari with a higher court or tribunal, absent a
temporary restraining order or a preliminary injunction,
or upon its expiration. Failure of the public respondent
to proceed with the principal case may be a ground for
an administrative charge.
Sec. 8. Proceedings after comment is filed.
After the comment or other pleadings required by the
court are filed, or the time for the filing thereof has
expired, the court may hear the case or require the
parties to submit memoranda. If, after such hearing or
filing of memoranda or upon the expiration of the period
for filing, the court finds that the allegations of the
petition are true, it shall render judgment for such relief
to which the petitioner is entitled.
However, the court may dismiss the petition if it finds
the same patently without merit or prosecuted
manifestly for delay, or if the questions raised herein are
too unsubstantial to require consideration. In such
event, the court may award in favor of the respondent
treble costs solidarily against the petitioner and counsel,
in addition to subjecting counsel to administrative
sanctions under Rules 139 and 139-B of the Rules of
Court.
The Court may impose motu proprio, based on res ipsa
loquitur, other disciplinary sanctions or measures on
erring lawyers for patently dilatory and unmeritorious
petitions for certiorari.
Denial of motion for reconsideration of order
dismissing a complaint not an interlocutory order
Silverio, Jr. v. CA (2009)
Facts: On November 16, 2004, during the pendency of
the case, Ricardo Silverio, Jr. filed a petition to remove
Ricardo C. Silverio, Sr. as the administrator of the
subject estate. On November 22, 2004, Edmundo S.
Silverio also filed a comment/opposition for the removal
of Ricardo C. Silverio, Sr. as administrator of the estate
and for the appointment of a new administrator.
On January 3, 2005, the RTC issued an Order
granting the petition and removing Ricardo Silverio, Sr.
as administrator of the estate, while appointing Ricardo
Silverio, Jr. as the new administrator.
On January 26, 2005, Nelia S. Silverio-Dee
filed a Motion for Reconsideration of the Order dated
January 3, 2005, as well as all other related orders.
On February 4, 2005, Ricardo Silverio Jr. filed
an Urgent Motion for an Order Prohibiting Any Person to
Occupy/Stay/Use Real Estate Properties Involved in the
Intestate Estate of the Late Beatriz Silverio, Without
Authority from this Honorable Court.
Then, on May 31, 2005, the RTC issued an
Omnibus Order affirming its Order dated January 3,
2005 and denying private respondents motion for
reconsideration. In the Omnibus Order, the RTC also
authorized Ricardo Silverio, Jr. to, upon receipt of the
order, immediately exercise his duties as administrator
of the subject estate. The Omnibus Order also directed
Nelia S. Silverio-Dee to vacate the property at No. 3,
Intsia, Forbes Park, Makati City within fifteen (15) days
from receipt of the order.
Nelia Silverio-Dee received a copy of the
Omnibus Order dated May 31, 2005 on June 8, 2005.
On June 16, 2005, private respondent filed a
Motion for Reconsideration dated June 15, 2005 of the
Omnibus Order. This was later denied by the RTC in an
Order dated December 12, 2005, which was received by
private respondent on December 22, 2005.
Notably, the RTC in its Order dated December
12, 2005 also recalled its previous order granting
Page 143
Civil Procedure
ESGUERRA NOTES
Ricardo Silverio, Jr. with letters of administration over
the intestate estate of Beatriz Silverio and reinstating
Ricardo Silverio, Sr. as the administrator.
From the Order dated December 12, 2005,
Ricardo Silverio, Jr. filed a motion for reconsideration
which was denied by the RTC in an Order dated October
31, 2006. In the same order, the RTC also allowed the
sale of various properties of the intestate estate of the
late Beatriz Silverio to partially settle estate taxes,
penalties, interests and other charges due thereon.
Among the properties authorized to be sold was the one
located at No. 3 Intsia Road, Forbes Park, Makati City.
Meanwhile, on January 6, 2006, Nelia Silverio-
Dee filed a Notice of Appeal dated January 5, 2006 from
the Order dated December 12, 2005 while the Record on
Appeal dated January 20, 2006 was filed on January 23,
2006.
Thereafter, on October 23, 2006, Ricardo
Silverio, Jr. filed a Motion to Dismiss Appeal and for
Issuance of a Writ of Executionagainst the appeal of
Nelia Silverio-Dee on the ground that the Record on
Appeal was filed ten (10) days beyond the reglementary
period pursuant to Section 3, Rule 41 of the Rules of
Court.
Thus, on April 2, 2007, the RTC issued an
Order denying the appeal on the ground that it was not
perfected within the reglementary period. The RTC
further issued a writ of execution for the enforcement of
the Order dated May 31, 2005 against private
respondent to vacate the premises of the property
located at No. 3, Intsia, Forbes Park, Makati City. The
writ of execution was later issued on April 17, 2007 and
a Notice to Vacatewas issued on April 19, 2007 ordering
private respondent to leave the premises of the subject
property within ten (10) days.
Held: An interlocutory order is one which does not
dispose of the case completely but leaves something to
be decided upon. It is only after judgment has been
rendered in the case that the ground for the appeal of
the interlocutory order may be included in the appeal of
the judgment itself. The interlocutory order generally
cannot be appealed separately from the judgment. It is
only when such interlocutory order was rendered
without or in excess of jurisdiction or with grave abuse
of discretion that certiorari under Rule 65 may be
resorted to.
Sec.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
questions 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.
Period of ordinary appeal
Sec.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 appellant shall
file a notice of appeal and a record on appeal within
thirty (30) days from 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 allowed.
Motion for Reconsideration filed on last day of 15-
day period
Manila Memorial Park v. CA (2000)
Facts: On 04 June 1975, respondents filed an action for
reconveyance and recovery of parcels of land against
petitioner Manila Memorial Park Cemetery, Inc., and its
co-defendants United Housing Corporation, Victorino
Hernandez, heirs of Aurelio de Leon, and heirs of Nicolas
Gatchalian.
After a protracted litigation, the trial court,
through then Presiding Judge Efricio B. Acosta,
dismissed the complaint in a decision, dated 17 June
1983.
Respondents received a copy of the decision on 04 July
1983. On 19 July 1983, the last day of the prescribed
fifteen-day period for appeal, private respondents filed a
motion for new trial and/or reconsideration. The motion
was denied by the trial court in its order of 03 October
1989. A copy of the order was received by respondents
on 28 November 1989.
On 07 December 1989, respondents filed a
notice of appeal and, on 11 December 1989, the trial
court gave due course to the appeal and directed the
transmittal of the records of the case to the Court of
Appeals. The records of the case, however, were not
transmitted to the appellate court due to missing
transcript of stenographic notes. On 23 April 1996, the
trial court required the parties to appear in conference.
Almost a year had lapsed but the missing stenographic
notes were still not submitted to the trial court.
On 28 February 1997, respondents filed a
motion for new trial for the retaking and presentation of
testimonial and documentary evidence on the ground
that the reconstitution of the missing stenographic notes
was no longer possible considering that the court
stenographers who had transcribed the testimony of
witnesses by then since retired from the service, their
whereabouts unknown.
On 22 April 1997, petitioner filed a motion to
dismiss the appeal and an opposition to the motion for
new trial filed by respondents contending that the
appeal was filed out of time and that the remedy for
new trial could not be availed of since it was filed long
after the reglementary period to appeal had lapsed.
Page 144
Civil Procedure
ESGUERRA NOTES
The trial court, in its order of 16 July 1997
granting the Motion for New Trial and denying the
Motion to Dismiss of Manila Memorial Park.
The trial court ratiocinated that the final
resolution of the case could not be held in abeyance
indefinitely nor could petitioner's motion to dismiss the
appeal still be entertained after their having waited for
eight years before raising the issue.
Petitioner moved to reconsider, but to no avail,
the trial court's order of 16 July 1997. Dissatisfied,
petitioner elevated the matter via a petition for certiorari
to the Court of Appeals insisting that the trial court had
acted capriciously and whimsically, as well as with grave
abuse of discretion amounting to lack or excess of
jurisdiction, in holding that it was barred from assailing
the timeliness of the appeal and in granting
respondent's motion for new trial long after the decision
of the trial court had already become final and
executory.
Held: In an ordinary appeal from the final judgment or
order of a MeTC or MTC to the RTC, and from the RTC to
the CA in actions or proceedings originally filed in the
RTC, the 15-day period for appeal prescribed by Section
39 of BP 129 and Sec. 19(a) of the Interim Rules is
interrupted or suspended by a motion for new trial or
reconsideration duly filed, and if the motion for new trial
or reconsideration is denied, the moving party has only
the remaining period from notice of denial within which
to file a notice of appeal.
New rule on appeal after denial of Motion for
Reconsideration or Motion for New Trial
Neypes v. CA (2005)
Facts: Petitioners filed an action for annulment of
judgment and titles of land and/or reconveyance and/or
reversion with preliminary injunction before the RTC
against the private respondents. Later, in an order, the
trial court dismissed petitioners’ complaint on the
ground that the action had already prescribed.
Petitioners allegedly received a copy of the order of
dismissal on March 3, 1998 and, on the 15th day
thereafter or on March 18, 1998, filed a motion for
reconsideration. On July 1, 1998, the trial court issued
another order dismissing the motion for reconsideration
which petitioners received on July 22, 1998. Five days
later, on July 27, 1998, petitioners filed a notice of
appeal and paid the appeal fees on August 3, 1998.
On August 4, 1998, the court a quo denied the
notice of appeal, holding that it was filed eight days late.
This was received by petitioners on July 31, 1998.
Petitioners filed a motion for reconsideration but this too
was denied in an order dated September 3, 1998. Via a
petition for certiorari and mandamus under Rule 65,
petitioners assailed the dismissal of the notice of appeal
before the CA. In the appellate court, petitioners claimed
that they had seasonably filed their notice of appeal.
They argued that the 15-day reglementary period to
appeal started to run only on July 22, 1998 since this
was the day they received the final order of the trial
court denying their motion for reconsideration. When
they filed their notice of appeal on July 27, 1998, only
five days had elapsed and they were well within the
reglementary period for appeal. On September 16,
1999, the CA dismissed the petition. It ruled that the
15-day period to appeal should have been reckoned
from March 3, 1998 or the day they received the
February 12, 1998 order dismissing their complaint.
According to the appellate court, the order was the “final
order” appealable under the Rules.
Held: To standardize the appeal periods provided in the
Rules and to afford litigants fair opportunity to appeal
their cases, the Court deems it practical to allow a fresh
period of 15 days within which to file the notice of
appeal in the RTC, counted from receipt of the order
dismissing a motion for new trial or motion for
reconsideration.
When appeal allowed even if period to appeal has
expired
Trans International v. CA (1998)
Facts: Petitioner Trans International filed a complaint
for damages against respondent National Power
Corporation (NAPOCOR for brevity) and two of its
principal officers arising from the rescission of a contract
for the supply and delivery of woodpoles before the
Regional Trial Court of Quezon City which was docketed
as Civil Case No. Q-94-20960.
On May 22, l996, the trial court rendered a
decision sustaining the claim of petitioner corporation. It
awarded to petitioner the following amounts:
$1,325,703.65 representing the amount of profit which
it could have enjoyed had the contract been observed;
$10,000.00 for expenses incurred by petitioners local
agent in the preparation and execution of the contract;
P932,102.53 representing the combined premium paid
by petitioner for the bidders bond, performance bond
and surety bond; and P200,000.00 as attorneys fees.
A copy of the aforesaid decision was received
by respondents on June 6, l996. On June 19, l996,
respondents filed their motion for reconsideration
alleging in the main that certain facts were overlooked,
ignored or wrongly appreciated by the trial court. An
opposition to said motion was filed by petitioner on July
11, l996. On August 2, l996, the trial court issued an
order denying the motion for reconsideration. A copy of
the aforesaid order was personally delivered to
respondent NAPOCORS office on August 23, l996
(Friday) and was received by Ronald T. Lapuz, a clerk
assigned at the office of the VP-General Counsel.
Considering that it was almost 5:00 p.m.,
Lapuz placed the said order inside the drawer of his
table. However, on August 26 and 27, l996 (Monday and
Tuesday, respectively) said clerk was unable to report
for work due to an illness he suffered as a result of the
extraction of his three front teeth. Said order was
retrieved from his drawer only in the afternoon of the
27th and was immediately forwarded to the secretary of
Atty. Wilfredo J. Collado, counsel for the respondents. At
3:10 p.m. that same day, respondents thru counsel filed
their notice of appeal.
On August 29, l996, petitioner filed a motion
for execution before the trial court contending that its
decision dated May 22, l996 had become final and
executory since respondents failed to make a timely
appeal and praying for the issuance of an order granting
the writ of execution. On the other hand, respondents
filed an opposition thereto alleging therein that the
cause of their failure to make a timely appeal was due to
unforeseeable oversight and accident on the part of their
Page 145
Civil Procedure
ESGUERRA NOTES
employee who was unable to report for work because of
illness. On September 9, l996 petitioner filed a reply to
said opposition. On September 11, l996 respondents
counsel filed a supplemental opposition to the motion for
execution attaching thereto the affidavit of Lapuz.
Finally, on September 18, l996, respondents filed their
rejoinder to said reply.
On September 13, l996, the trial court issued
an order denying respondents notice of appeal and
granting the motion for execution filed by petitioner.
On September 20, l996, respondents filed a
petition for certiorari before the Court of Appeals
questioning the validity of the issuance of the aforesaid
order on the ground that the denial of their notice of
appeal was on the basis of a mere technicality and that
the writ of execution should not have been issued since
there are strong considerations which militate the strict
application of the rules on procedure. Petitioner
corporation filed its comment to the petition dated
September 25, l996 claiming that the event which
happened in respondents office does not amount to an
honest mistake nor an unavoidable accident that would
legally excuse their neglect.
Held: For a party to seek exception for its failure to
comply strictly with the statutory requirements for
perfecting its appeal, strong compelling reasons such as
serving the ends of justice and preventing a grave
miscarriage thereof must be shown, in order to warrant
the Court’s suspension of the rules.
RTC cannot dismiss appeal on ground that only
questions of law involved
Kho v. Camacho (1991)
Facts: In payment of attorney's fees resolved against
him, petitioner Narciso Kho, a businessman, issued in
favor of private respondent Atty. Manuel Camacho six
(6) postdated Manila Bank checks in the total sum of
P57,349.00. One of the checks, in the amount of
P10,000.00, was lost by Atty. Camacho who promptly
notified petitioner. When the other five (5) checks were
negotiated by Camacho with the Philippine Amanah
Bank, the same were returned uncleared because Manila
Bank had been ordered closed by the Central Bank.
Because of petitioner's refusal to replace the
Manila Bank checks or pay his obligation, Camacho
instituted an action for a sum of money against
petitioner before respondent trial court.
In his answer, petitioner alleged that he was
under no obligation to replace the lost check for
P10,000.00, arguing that Camacho should have
executed a sworn statement that he lost the check
issued to him and furnished both the drawer and the
bank with said statement so that the bank could place
on the check "under alarmed," instead of merely
informing petitioner.
Petitioner also refused to issue new checks
maintaining that the closure of Manila Bank (in which he
had an outstanding deposit of P581,571.84 which was
more than enough to cover the cost of the five checks)
was beyond his control and therefore he was in no
financial position to pay Camacho unless and until his
money in that beleaguered bank was released.
Contending that petitioner's answer failed to
tender a genuine issue, Camacho moved for a judgment
on the pleadings which respondent Judge Leviste
granted in his order of February 12, 1988. In said order,
respondent Judge directed petitioner to pay Camacho
P57,349.00 "minus the P10,000.00 pertaining to the lost
check, or a total of P47,349.00 with interest at the legal
rate of 6% from June 2, 1987, until fully paid, with costs
or attorney's fees."
On February 25, 1988, petitioner seasonably
filed a notice of appeal stating that he was appealing the
February 12, 1988 order to the Court of Appeals.
Respondent Judge duly approved said notice in his order
of February 29, 1988.
On the other hand, despite the reduced money
judgment, Camacho made no move to contest the
award. Instead, he filed a motion/manifestation praying
that petitioner's notice of appeal be stricken off the
record as a mere scrap of paper.
Acting on the aforesaid motion, respondent
Judge issued the assailed order of March 29, 1988
setting aside the previously approved notice of appeal
and adopting Camacho's view that the proper remedy
from a judgment on the pleadings was a petition for
certiorari to the Supreme Court.
Held: Issues that involve pure questions of law are
within the exclusive jurisdiction of the SC. However,
Rule 41 does not authorize the trial court to disallow an
appeal on the ground that there is no question of fact,
but only a question of law, involved. Whether an appeal
involves only question of law or both questions of fact
and law, this question should be left for the
determination of an appellate court, and not by the
court which rendered the subject decision appealed
from.
Appellee who has not appealed may not obtain
affirmative relief from appellate court
Custodio v. CA (1996)
Facts: On August 26, 1982, Civil Case No. 47466 for
the grant of an easement of right of way was filed by
Pacifico Mabasa against Cristino Custodio, Brigida R.
Custodio, Rosalina R. Morato, Lito Santos and Maria
Cristina C. Santos before the Regional Trial Court of
Pasig and assigned to Branch 22 thereof.
On February 27, 1990, a decision was
rendered by the trial court, with this dispositive part:
Accordingly, judgment is hereby rendered as
follows:
1) Ordering defendants Custodios and Santoses to give
plaintiff permanent access - ingress and egress, to the
public street;
2) Ordering the plaintiff to pay defendants Custodios
and Santoses the sum of Eight Thousand Pesos (P8,000)
as indemnity for the permanent use of the passageway.
The parties to shoulder their respective
litigation expenses.
Not satisfied therewith, therein plaintiff
represented by his heirs, herein private respondents,
went to the Court of Appeals raising the sole issue of
whether or not the lower court erred in not awarding
damages in their favor. On November 10, 1993, as
earlier stated, the Court of Appeals rendered its decision
Page 146
Civil Procedure
ESGUERRA NOTES
affirming the judgment of the trial court with
modification.
On July 8, 1994, the Court of Appeals denied
petitioners motion for reconsideration. Petitioners then
took the present recourse to us, raising two issues,
namely, whether or not the grant of right of way to
herein private respondents is proper, and whether or not
the award of damages is in order.
Held: An appellee in a civil case, who has not himself
appealed may not obtain from the appellate court any
affirmative relief other than what was granted in the
decision of the lower court.
When there is solidarity obligations
Citytrust Banking Corporation v. CA (1991)
Facts: Samara purchased from Citytrust a bank draft for
$US40,000.00, the payee being Thai International
Airways and the drawee is a US bank, Marine Midland.
Several days after said purchase, Samara executed a
stop-payment order of the bank draft instructing
Citytrust to inform Marine Midland about the order
through telex. Citytrust complied with Samara’s
instruction and informed Marine Midland about the stop-
payment order. Marine Midland acknowledged receipt of
Samara’s stop-payment order and informed Citytrust
that it did not pay the bank draft.
Due to the non-payment of the draft, Citytrust
credited Samara’s account for $US40,000.00 due to the
non-payment. However, seven months after, Citytrust
re-debited Samara’s account upon discovering that
Marine Midland had already debited Citytrust’s despite
the Marine Midland’s statement that it did not pay the
bank draft. Due to Citytrust’s act of re-debiting
Samara’s account, the latter filed a complaint for the
recovery of sum of money against the two banks.
The RTC found both banks jointly and severally
liable to Samara in the amount of US$40,000.00. From
the RTC’s decision the two banks filed separate appeals.
Citytrust’s appeal was dismissed for having been filed
out of time. Accordingly, Citytrust questioned the CA’s
dismissal of his appeal before the SC. Citytrust argued
that his appeal was not filed out of time since Marine
Midland filed a Motion for Reconsideration, which
according to Citytrust, inured to its benefit.
Issue: Whether or not Marine Midland’s appeal inured to
Citytrust’s benefit?
Held: No. It must be noted that the two defendants,
Marine Midland and Citytrust, filed cross claims against
each other in their answer. Citytrust alleged that the
proximate cause of the injury should be attributed to co-
defendant Marine Midland when the latter failed to
promptly inform Citytrust that the demand draft
Citytrust issued was really paid by Marine Midland on
December 22, 1980. For its part, Marine Midland alleged
that Citytrust did not properly advise it of the actual
circumstances relating to the dates of payment of the
draft and of the receipt by the latter of the stop-
payment instructions. The rights and liabilities of both
parties concerned are not so interwoven in such a
manner that their defenses are similar and that a
reversal of the judgment as to one should operate as a
reversal to the other. Furthermore, a perusal of the
decision appealed from shows that Marine Midland,
though jointly and severally liable with petitioner, is the
one ultimately held responsible for the damages incurred
by the private respondent inasmuch as the trial court
ordered "defendant Marine Midland to reimburse
defendant Citytrust of whatever amount the latter will
be made to pay the plaintiff by reason of this judgment
and costs."
The Court is of the considered view that it was
the trial court judgment that created a joint and several
obligation to pay the private respondent certain sums.
No solidary liability as between them existed from the
drawer-drawee relationship in the draft transaction.
The trial court judgment, however, does not
alter the fact that the respective defenses of the co-
defendants are distinct on trial and even on appeal.
Citytrust and Marine Midland were not in privity with
each other in a transaction involving payment through a
bank draft. A bank draft is a "bill of exchange drawn by
a bank upon its correspondent bank, . . . issued at the
solicitation of a stranger who purchases and pays
therefor" (Kohler v. First National Bank, 289 P 47, 49,
157 Wash. 417 [1930]). It is also defined as an "order
for payment of money." (Polotsky v. Artisans Savings
Bank, Del. 180 A. 791, 792, 7 WW. Harr 142 [1935]).
In the case at bar, Citytrust from which
Samara purchased the bank draft, was the drawer of the
draft through which it ordered Marine Midland, the
drawee bank, to pay the amount of US $40,000.00 in
favor of Thai International Airways, the payee. The
drawee bank acting as a "payor" bank is solely liable for
acts not done in accordance with the instructions of the
drawer bank or of the purchaser of the draft. The
drawee bank has the burden of proving that it did not
violate. Meanwhile, the drawer, if sued by the purchaser
of the draft is liable for the act of debiting the
customer's account despite an instruction to stop
payment. The drawer has the duty to prove that he
complied with the order to inform the drawee.
The fact that the petitioner previously filed a
cross-claim against Marine Midland does not make the
former a party in the latter's appeal where all reliefs
granted to the plaintiff and/or to the petitioner who was
a co-defendant are up for review. The rights and
liabilities of Citytrust as a defensive cross-claimant,
which alleged that the proximate cause of the injury to
the plaintiff was the wrongful action of Marine Midland,
have already been litigated before the trial court which
ordered full reimbursement in favor of Citytrust. Until
petitioner Citytrust appeals for the review of the trial
court decision either in part or in toto, its rights and
obligations as pre-determined cannot generally be
affected by an appeal of a co-defendant. The respondent
appellate court made this clear in its decision dated
February 23, 1989, when it stated that even assuming
that the petitioner may be considered an appellee, "such
a standing was only with respect to the cross-claim
against (appellant Marine Midland) and not with respect
to its (petitioner's) liability in favor or private respondent
Samara", the judgment on which had already become
final and executory as to the Petitioner. The petitioner
cannot now present a subverted interpretation of what
the appellate court meant.
Page 147
Civil Procedure
ESGUERRA NOTES
Perfection of appeal
Sec. 9. Perfection of appeal; effect thereof
A party’s appeal by notice of appeal is deemed perfected
as to him upon the filing of the notice of appeal in due
time. A party’s appeal by record on appeal is deemed
perfected as to him with respect to the subject matter
thereof upon the approval of the record on appeal filed
in due time.
Loss of jurisdiction
In appeals by notice of appeal, the court loses
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time
to appeal of the other parties. In appeals by record on
appeal, the court loses jurisdiction only over the subject
matter thereof upon the approval of the records on
appeal filed in due time and the expiration of the time to
appeal of the other parties.
Residual powers
Residual power/jurisdiction of the court after losing
jurisdiction but prior to the transmittal of the original
record or record on appeal:
a.) Order execution pending appeal
under Rule 39, Sec. 2 (motion for
execution was filed before the
expiration of the period of appeal);
b.) To issue orders for the preservation
of the rights of the parties which do
not involve matters litigated by
appeal;
c.) To approve compromise prior to the
transmittal of the record;
d.) Permit appeal by an indigent;
e.) 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. CA, G.R. No.
131094, 16 May 2005).
Dismissal of appeal
Sec. 13. Dismissal of appeal.
Prior to the transmittal of the original record or the
record on appeal to the appellate court, the trial court
may motu proprio or on motion dismiss the appeal for:
a. having been filed out of time; or
b. non-payment of docket and other lawful fees
Rule 42
RTC to CA
Appeal from RTC decision rendered in the exercise
of its appellate jurisdiction
Rose Rica Sales Center v. Ong (2005)
Facts: Rose Rica Sales Center (RRSC) filed a complaint
for ejectment against the spouses Ong (the
“respondents”). The MTC, in resolving the ejectment
case, ruled in favor of RRSC and ordered the
respondents to vacate the subject property. On appeal,
the RTC affirmed the MTC’s Decision in its entirety.
Subsequently, respondents filed a Notice of Appeal with
the RTC. The day after respondents filed their Notice of
Appeal, they field before the RTC a Motion for
Reconsideration. The RTC gave due course to
respondents’ Notice of Appeal, however, it denied their
MR.From the denial of respondents’ MR, respondents
filed a Petition for Review with the CA. The CA granted
respondents’ petition. As such, RRSC appealed to the
SC.
Issue: Whether or not the filing of a notice of appeal is
the proper remedy to appeal a decision rendered by the
RTC in the exercise of its appellate jurisdiction?
Held: No. Since the unlawful detainer case was filed
with the MTC and affirmed by the RTC, RRSC should
have filed a Petition for Review with the CA and not a
Notice of Appeal with the RTC. However, we consider
this to have been remedied by the timely filing of a
Motion for Reconsideration the day after said Notice of
Appeal was filed.
Perforce, the period of appeal was tolled by the
Motion for Reconsideration and started to run again from
the receipt of the order denying the Motion for
Reconsideration. A Motion for Additional Time to File
Petition was likewise filed with the Court of Appeals.
Counting fifteen (15) days from receipt of the denial of
the Motion for Reconsideration and the ten (10)-day
request for additional period, it is clear that respondents
filed their Petition for Review on time.
In the case at bar, a petition for review before
the CA is the proper mode of appeal form a decision of
the RTC. Since the filing of the notice of appeal is
erroneous, it is considered as if no appeal was
interposed.
Pure questions of law may be raised
Sec.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;
Page 148
Civil Procedure
ESGUERRA NOTES

(c) Set forth concisely a jurisdiction must be brought directly to the Supreme
statement of the matters involved, the Court in cases where the appellant raises only questions
issues raised, the specification of errors of of law.
fact or law, or both, allegedly committed
by the Regional Trial Court, and the On the other hand, Rule 42 provides that
reasons or arguments relied upon for the appeals from judgments of the regional trial courts in
allowance of the appeal; the exercise of their appellate jurisdiction must be
(d) Accompanied by clearly brought to the Court of Appeals, whether the appellant
legible duplicate originals or true copies of raises questions of fact, of law, or mixed questions of
the judgments or final orders of both fact and law.
lower courts, certified correct by the clerk
of court of the Regional Trial Court, the Effect of failure to comply with the
requisite number of plain copies thereof requirements
and of the pleadings and other material
portions of the record as would support Sec. 3. Effect of failure to comply with requirements
the allegations of the petition. The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the
The petitioner shall also submit together with docket and other lawful fees, the deposit for costs, proof
the petition a certification under oath that he has not of service of the petition, and the contents of and the
commenced any other action involving the same issues documents which should accompany the petition shall be
in the Supreme Court, the Court of Appeals or different sufficient ground for the dismissal thereof.
divisions thereof, or any other tribunal or agency; if
there is such other action or proceeding, he must state Action by court
the status of the same; and if he should thereafter learn
that a similar action or proceeding has been filed or is Sec. 4. Action on the petition.
pending before the Supreme Court, the Court of The Court of Appeals may:
Appeals, or different divisions thereof, or any other a. Require the respondent to file a
tribunal or agency, he undertakes to promptly inform comment on the petition, not a
the aforesaid courts and other tribunal or agency thereof motion to dismiss, within ten
within five (5) days therefrom.
(10) days from notice; or
Macawiwili Gold Mining v. CA (1998)
b. Dismiss the petition if it finds the
Facts: Philex Mining (PM) filed a complaint for same to be:
expropriation against Macawiwili Gold Mining (MGM) 1. Patently without merit;
before the RTC. The RTC, however, dismissed PM’s 2. Prosecuted manifestly for
complaint. Accordingly, PM moved for reconsideration, delay; or
however, the same was likewise denied. As such, it
3. That the questions raised
appealed the case to the CA. While the case was
pending before the CA, MGM filed a Motion to Dismiss therein are too
Appeal on the ground that only questions of law were unsubstantial to require
involved and, therefore, the appeal should be to the SC. consideration.
MGM’s said motion was denied.
When petition given due course
Issue: Is MGM correct in contending that PM should Sec. 6. Due course.
have filed its appeal directly to the SC since its appeal
merely raises questions of law? If upon the filing of the comment or such other
pleadings as the court may allow or require, or after the
Held: Yes. The first four arguments advanced by PM expiration of the period for the filing thereof without
raise the sole issue of whether it has, under Presidential such comment or pleading having been submitted, the
Decree No. 463, the right to expropriate the 21.9 Court of Appeals finds prima facie that the lower court
hectare mining areas where petitioners mining claims has committed an error of fact or law that will warrant a
are located. On the other hand, its final argument raises reversal or modification of the appealed decision, it may
the issue of whether the rules on the allegation of accordingly give due course to the petition.
alternative causes of action in one pleading under Rule
8, 1 of the Rules of Court are applicable to special civil Prima facie finding that lower court has committed
actions. These are legal questions whose resolution does errors of fact or law warranting reversal or
not require an examination of the probative weight of modification.
the evidence presented by the parties but a Petition dismissed for late filing after finding the
determination of what the law is on the given state of same prima facie meritorious
facts. These issues raise questions of law, which should
be the subject of a petition for review on certiorari under Ditching v. CA & Motas (1996)
Rule 45 filed directly with the Supreme Court. The Court
of Appeals committed a grave error in ruling otherwise. Facts: Ditching and Bacani (collectively, the
“petitioners”) as co-owners of a parcel of land situated
Under Rule 41, judgments of the regional trial in Laguna, filed an ejectment case against Motas (the
courts in the exercise of their original jurisdiction are to “respondent”) before the MTC. The MTC found that there
be elevated to the Court of Appeals in cases where the existed a tenancy relationship between petitioners and
appellant raises questions of fact or mixed questions of respondent. As such, it dismissed petitioners’ complaint.
fact and law. However, appeals from judgments of the Petitioners thus, appealed the case before the RTC,
regional trial courts in the exercise of their original which affirmed in toto the MTC’s decision. Thereafter,

Page 149
Civil Procedure
ESGUERRA NOTES
petitioners filed a Motion for Reconsideration (MR),
which was granted by the RTC. However, when a new
judge took over as presiding judge of the RTC where the
case was pending, he reversed the previous judge’s
order granting petitioners MR.
Aggrieved, petitioners filed before the CA a
petition for review. In a resolution dated 23 June 1992,
the CA stated that the petition filed with it was prima
facie meritorious. Subsequently however, the CA
dismissed said petition on the ground that it was
belatedly filed.
Issue: Whether or not the CA can be faulted for stating
in its resolution dated 23 June 1992 that the petition
filed with it was prima facie meritorious, only to dismiss
it thereafter for being filed out of time?
Held: No. Where no timely appeal was taken, the
judgment becomes final, and the legality of the
allowance of the appeal may be raised at any stage of
the proceedings in the appellate court. Further, the
respondent Court was not precluded from dismissing the
petition on the ground that it was filed late, inasmuch as
the recognition of the merit of the petition did not carry
with it any assumption or conclusion that it was timely
filed.
Under Section 1(a) Rule 50 of the Revised Rules of
Court, the CA motu proprio or on motion of the appellee
may dismiss the appeal for inter alia:
(a) Failure of the record on appeal to show on its
face that the appeal was perfected within the period
fixed by these rules.
Perfection of appeal
Sec. 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.
Loss of jurisdiction
The Regional Trial Court loses jurisdiction over the case
upon the perfection of the appeals filed in due time and
the expiration of the time to appeal of the other parties.
Residual powers
Residual power/jurisdiction of the court after losing
jurisdiction but prior to the transmittal of the original
record or record on appeal:
a.) Order execution pending appeal
under Rule 39, Sec. 2 (motion for
execution was filed before the
expiration of the period of appeal);
b.) To issue orders for the preservation
of the rights of the parties which do
not involve matters litigated by
appeal;
c.) To approve compromise prior to the
transmittal of the record;
d.) Permit appeal by an indigent;
e.) Allow withdrawal of the appeal.
Effect of appeal
(b) Except in civil cases decided under the Rule 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.
Rule 43
Quasi-Judicial Agencies to CA
1997 Rules on Civil Procedure, 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
Commission, 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. 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.
Section 27 of Republic Act No. 6770 is involved only
whenever an appeal by certiorari under Rule 45 is taken
from a decision in an administrative disciplinary action.
It cannot be taken into account where an original action
for certiorari under Rule 65 is resorted to as a remedy
for judicial review, such as from an incident in a criminal
action.
Whenever the legislature intends that the decisions or
resolutions of the quasi-judicial agency shall be
reviewable by the Supreme Court or the Court of
Appeals, a specific provision to that effect is included in
the law creating that quasi-judicial agency and, for that
matter, any special statutory court.
Fabian v. Desierto (1998)
Facts: Petitioner Teresita Fabian was the major
stockholder and President of PROMAT Construction
Development Corporation, which was engaged in the
construction business. Private respondent Nestor
Agustin was the District Engineer of the First Metro
Manila Engineering District. PROMAT participated in the
bidding for government construction projects, and
private respondent, reportedly taking advantage of his
official position, inveigled petitioner into an amorous
relationship. Their affair lasted for some time, in the
course of which, private respondent gifted PROMAT with
public works contracts and interceded for it in problems
concerning the same in his office. When petitioner tried
to terminate their relationship, private respondent
refused and resisted her attempts to do so to the extent
of employing acts of harassment, intimidation and
threats. Accordingly, Fabian filed the an administrative
case against Agustin in a letter-complaint dated July 24,
1995.
Page 150
Civil Procedure
ESGUERRA NOTES
The complaint sought the dismissal of Agustin
for violation of Section 19, R.A. No. 6770 (Ombudsman
Act of 1989) and Section 36 of P.D. No. 807 (Civil
Service Decree), with an ancillary prayer for his
preventive suspension. The case later led to an appeal
to the Ombudsman - who inhibited himself - and
transferred the case to the Deputy Ombudsman. The
deputy ruled in favor of Agustin and in the order
exonerated the private respondents from the
administrative charges.
Fabian elevated the case to the SC, arguing
that Section 27 of Republic Act No. 6770 (Ombudsman
Act of 1989) that all administrative disciplinary cases,
orders, directives or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court by
filing a petition for certiorari within ten (10) days from
receipt of the written notice of the order, directive or
decision or denial of the motion for reconsideration in
accordance with Rule 45 of the Rules of Court.
Issue: Whether or not administrative disciplinary cases,
orders, directives or decisions of the Office of the
Ombudsman may be appealed to the Supreme Court?
Held: No. Section 27 of RA 6770 cannot validly
authorize an appeal to the SC from decisions of the
Office of the Ombudsman in administrative disciplinary
cases. It consequently violates the proscription in
Section 30, Article VI of the Constitution against a law
which increases the Appellate jurisdiction of the SC. No
countervailing argument has been cogently presented to
justify such disregard of the constitutional prohibition.
That constitutional provision was intended to give the SC
a measure of control over cases placed under its
appellate jurisdiction. Otherwise, the indiscriminate
enactment of legislation enlarging its appellate
jurisdiction would unnecessarily burden the SC.
Section 30, Article VI of the Constitution is
clear when it states that the appellate jurisdiction of the
SC contemplated therein is to be exercised over “final
judgments and orders of lower courts,” that is, the
courts composing the integrated judicial system. It does
not include the quasi-judicial bodies or agencies.
Appeals from judgments and final orders of
quasi-judicial agencies are now required to be brought
to the Court of Appeals on a verified petition for review,
under the requirements and conditions in Rule 43 of the
Rules of Court which was precisely formulated and
adopted to provide for a uniform rule of appellate
procedure for quasi-judicial agencies.
Ombudsman criminal cases – Supreme Court via
Rule 65
Lanting v. Ombudsman (2005)
Facts: Lanting filed an affidavit-complaint with the
Ombudsman an affidavit-complaint charging Atienza,
Sison and Rumbo (collectively, the “respondents”) for
violation of the Anti-Graft and Corrupt Practices Act. She
alleged that the respondents unlawfully appointed
Ernesto Saw, a Chinese citizen working in Taiwan, and
brother-in-law of Rumbo, to the position of Researcher
in the City Council.
In a resolution, Graft Investigator Ramos
recommended the dismissal of the complaint. The
recommendation was approved by Ombudsman
Desierto. Subsequently, Lanting filed an MR, which was
eventually denied by the Ombudsman. Aggrieved,
Lanting filed a petition for certiorari before the CA. The
CA, however, dismissed said petition for lack of
jurisdiction.
Issue: Whether or not the CA erred in dismissing
Lanting’s petition?
Held: No. Lanting’s complaint-affidavit before the Office
of the Ombudsman is for violation of the Anti-Graft and
Corrupt Practices Acts. It is not an administrative
complaint. Nowhere in her complaint did she allege
administrative offenses, such as dishonesty or
misconduct on the part of respondents.
It bears stressing that the allegations in
petitioners complaint describe respondents actuations as
willful, felonious, unlawful, odious and despicable
criminal activities. In her motion for reconsideration of
the Ombudsman’s Resolution, petitioner claimed that
Graft Investigator Ramos skirted the issue of
falsification of public documents which is crystal
clear in my complaint. Likewise, in her petition in CA-
G.R. SP No. 54274, petitioner sought to nullify the
resolution of the Honorable Ombudsman dated April 8,
1999 dismissing petitioners complaint for anti-graft
and falsification of public documents and to direct
respondent Ombudsman to give due course to the
complaint.
Considering that petitioners complaint is
criminal in nature, this Court has the sole authority to
review the Ombudsmans Resolutions on pure question of
law as expressly mandated in Section 14, 2nd paragraph
of R.A. 6770, which provides:
Sec. 14. Restrictions. x x x.
No court shall hear any appeal or application for
remedy against the decision or findings of the
Ombudsman, except the Supreme Court on pure
question of law.
In Fabian vs. Desierto, we held that only
appeals from the decisions of the Office of the
Ombudsman in administrative disciplinary cases should
be taken to the Court of Appeals under the provisions of
Rule 43 (of the 1997 Revised Rules of Civil Procedure).
We reiterated this ruling in Namuhe v. Ombudsman and
recently in Barata v. Abalos, Jr. and Coronel v. Aniano
Desierto.
Therefore, the Court of Appeals, in issuing its
questioned Resolutions, did not commit grave abuse of
discretion. Clearly, it has no jurisdiction over petitioners
criminal action. As earlier mentioned, jurisdiction lies
with this Court.
Cases not covered
1997 Rules on Civil Procedure, 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.
Page 151
Civil Procedure
ESGUERRA NOTES
St. Martin Funeral Home v. NLRC (1998)
Facts: Private respondent Aricayos worked as St. Martin
Funeral Home’s (the “petitioner”) operations manager.
When petitioner’s owner discovered that there were
arrears in the payment of taxes and other government
fees, she made some changes in the business operation.
Among those changes was the owner’s decision to
disallowing Aricayos from participating in the
management of the business. Aggrieved, Aricayos filed a
complaint against petitioner for illegal recruitment.
The labor arbiter rendered a decision in favor
of petitioner. On appeal, the NLRC reversed the labor
arbiter’s decision. Accordingly, petitioner moved for
reconsideration, which was denied. Dissatisfied,
petitioner filed a petition for certiorari before the SC.
Issue: Is a petition for certiorari the proper remedy to
question the decision of the NLRC?
Held: Yes. When the issue was raised in an early case
on the argument that this Court has no jurisdiction to
review the decisions of the NLRC, and formerly of the
Secretary of Labor, since there is no legal provision for
appellate review thereof, the Court nevertheless
rejected that thesis. It held that there is an underlying
power of the courts to scrutinize the acts of such
agencies on questions of law and jurisdiction even
though no right of review is given by statute; that the
purpose of judicial review is to keep the administrative
agency within its jurisdiction and protect the substantial
rights of the parties; and that it is that part of the
checks and balances which restricts the separation of
powers and forestalls arbitrary and unjust adjudications.
Pursuant to such ruling, and as sanctioned by
subsequent decisions of this Court, the remedy of the
aggrieved party is to timely file a motion for
reconsideration as a precondition for any further or
subsequent remedy, and then seasonably avail of the
special civil action of certiorari under Rule 65, for which
said Rule has now fixed the reglementary period of sixty
days from notice of the decision. Curiously, although the
10-day period for finality of the decision of the NLRC
may already have lapsed as contemplated in Section
223 of the Labor Code, it has been held that this Court
may still take cognizance of the petition for certiorari on
jurisdictional and due process considerations if filed
within the reglementary period under Rule 65.
However, in observance of the doctrine of
hierarchy of courts, the petition for certiorari should be
filed in the Court of Appeals and not directly to the SC.
Decisions of DOJ Sec. in petitions for review
prosecutors’ resolutions – Petition for Certiorari to CA
under Rule 65
Alcaraz v. Gonzales (2006)
Facts: Intending to use the skyway, Alcaraz signaled
and proceeded to the right-most lane. Gonzales who
was on the right-most lane at that time, was forced to
swerve his car to the right to avoid colliding with
Alacaraz. As such, Gonzales nearly hit the concrete
island.
Aggrieved, Gonzales chased after Alcaraz, opened his
windows and shouted at Alcaraz. Subsequently, Alcaraz
fired two gunshots towards Gonzales car and hurriedly
drove away from the scene. However, PNCC guards
were able to intercepe Alcaraz at the Skyway tollgate.
Gonzales reported the matter to the Parañaque
City Police and filed a criminal complaint for attempted
homicide against Alcaraz. After the Office of the City
Prosecutor conducted an inquest, an information for
attempted homicide was filed with the MeTC of
Parañaque City. Thereafter, Alcaraz filed a motion to
conduct a preliminary investigation. Such motion was
granted. However, after the conducting a preliminary
investigation, the investigating prosecutor still found
probable cause against Alcaraz.
Dissatisfied with the prosecutor’s resolution,
Alcaraz filed an MR, which was eventually denied.
Aggrieved, Alcaraz filed a petition for review with the
Secretary of Justice (SOJ). The SOJ, granted said
petition and ordered the prosecutor to withdraw the
information.
From the SOJ’s Resolution, Gonzales filed an
MR and subsequently a petition for review under Rule 43
before the CA. The CA ruled that the petition for review
under Rule 43 was meritorious. Accordingly, Alcaraz
appealed the case with the SC.
Issues: Is a petition for review under Rule 43 the
proper remedy to assail the decision of the SOJ in cases
involving the determination of probable cause?
Held: No. We agree with petitioner's contention that
respondent resorted to an improper remedy when he
filed a petition for review under Rule 43 of the Rules of
Court, instead of filing a petition for certiorari under Rule
65.
It bears stressing that in the determination of
probable cause during the preliminary investigation, the
executive branch of government has full discretionary
authority. Thus, the decision whether or not to dismiss
the criminal complaint against the private respondent is
necessarily dependent on the sound discretion of the
Investigating Prosecutor and ultimately, that of the
Secretary of Justice. Courts are not empowered to
substitute their own judgment for that of the executive
branch.
The resolution of the Investigating Prosecutor
is subject to appeal to the Justice Secretary who, under
the Revised Administrative Code, exercises the power of
control and supervision over said Investigating
Prosecutor; and who may affirm, nullify, reverse, or
modify the ruling of such prosecutor. Thus, while the CA
may review the resolution of the Justice Secretary, it
may do so only in a petition for certiorari under Rule 65
of the Rules of Court, solely on the ground that the
Secretary of Justice committed grave abuse of his
discretion amounting to excess or lack of jurisdiction.
It bears stressing that the Resolution of the
Justice Secretary affirming, modifying or reversing the
resolution of the Investigating Prosecutor is final. Under
the 1993 Revised Rules on Appeals (now the 2000
National Prosecution Service Rules on Appeals),
resolutions in preliminary investigations or
reinvestigations from the Justice Secretary's resolution,
except the aggrieved party, has no more remedy of
appeal to file a motion for reconsideration of the said
resolution of such motion if it is denied by the said
Secretary. The remedy of the aggrieved party is to file a
Page 152
Civil Procedure
ESGUERRA NOTES
petition for certiorari under Rule 65 of the Rules of Court
since there is no more appeal or other remedy available
in the ordinary course of law.
In the present case, respondent filed a petition
for review under Rule 43 of the Rules of Court, assailing
the resolutions of the Justice Secretary. Instead of
dismissing the petition, however, the CA gave due
course to it and thereafter granted the petition, on its
finding that the Justice Secretary erred in reversing the
resolution of the Investigating Prosecutor which found
probable cause against petitioner for attempted
homicide. Patently, the ruling of the CA is incorrect.
Not applicable where there is error of jurisdiction
Fortich v. Corona (1998)
Facts: Aggrieved by the Office of the President’s (OP)
Decision which approved the conversion of 144-hectare
land from agricultural to agro-industrial/institutional
area, farmers staged a hunger strike in front of the DAR
compound.
Said hunger strike led the Office of the
President, through Executive Secretary Corona
(“Corona”) issued a “Win-Win Resolution” which
substantially modified its earlier decision despite it being
already final and executory.
Aggrieved by said modification, petitioners filed a
petition for certiorari before the SC and prayed for the
annulment of said Win-Win Resolution.
Issue: Did petitioners avail of the proper remedy in
assailing the Win-Win Resolution issued by the Office of
the President?
Held: Yes. It is true that under Rule 43, appeals from
awards, judgments, final orders or resolutions of any
quasi-judicial agency exercising quasi-judicial functions,
including the Office of the President, may be taken to
the Court of Appeals by filing a verified petition for
review within fifteen (15) days from notice of the said
judgment, final order or resolution, whether the appeal
involves questions of fact, of law, or mixed questions of
fact and law.
However, we hold that, in this particular case,
the remedy prescribed in Rule 43 is inapplicable
considering that the present petition contains an
allegation that the challenged resolution is patently
illegal and was issued with grave abuse of discretion and
beyond his (respondent Secretary Renato C. Coronas)
jurisdiction when said resolution substantially modified
the earlier OP Decision of March 29, 1996 which had
long become final and executory. In other words, the
crucial issue raised here involves an error of jurisdiction,
not an error of judgment, which is reviewable by an
appeal under Rule 43. Thus, the appropriate remedy to
annul and set aside the assailed resolution is an original
special civil action for certiorari under Rule 65, as what
the petitioners have correctly done.
Section 1 of Rule 65 mandates that the person
aggrieved by the assailed illegal act may file a verified
petition (for certiorari) in the proper court.
Under Section 4 of Rule 65, the Supreme
Court, Court of Appeals and Regional Trial Court have
original concurrent jurisdiction to issue a writ of
certiorari, prohibition and mandamus. But the
jurisdiction of these three (3) courts are also delineated
in that, if the challenged act relates to acts or omissions
of a lower court or of a corporation, board, officer or
person, the petition must be filed with the Regional Trial
Court which exercises jurisdiction over the territorial
area as defined by the Supreme Court. And if it involves
the act or omission of a quasi-judicial agency, the
petition shall be filed only with the Court of Appeals,
unless otherwise provided by law or the Rules of Court.
We have clearly discussed this matter of concurrence of
jurisdiction in People vs. Cuaresma, et. al., through now
Chief Justice Andres R. Narvasa, thus:
x x x. This Courts original jurisdiction to issue
writs of certiorari (as well as prohibition,
mandamus, quo warranto, habeas corpus and
injunction) is not exclusive. It is shared by this
Court with Regional Trial Courts (formerly Courts
of First Instance), which may issue the writ,
enforceable in any part of their respective
regions. It is also shared by this Court, and by
the Regional Trial Court, with the Court of
Appeals (formerly, Intermediate Appellate Court),
although prior to the effectivity of Batas
Pambansa Bilang 129 on August 14, 1981, the
latters competence to issue the extraordinary
writs was restricted to those in aid of its appellate
jurisdiction. This concurrence of jurisdiction is
not, however, to be taken as according to parties
seeking any of the writs an absolute,
unrestrained freedom of choice of the court to
which application therefor will be directed. There
is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and
should also serve as a general determinant of the
appropriate forum for petitions for the
extraordinary writs. A becoming regard for that
judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs
against first level (inferior) courts should be filed
with the Regional Trial Court, and those against
the latter, with the Court of Appeals. (Citations
omitted)
But the Supreme Court has the full
discretionary power to take cognizance of the petition
filed directly to it if compelling reasons, or the nature
and importance of the issues raised, warrant. This has
been the judicial policy to be observed and which has
been reiterated in subsequent cases, namely: Uy vs.
Contreras, et. al., Torres vs. Arranz, Bercero vs. De
Guzman, and Advincula vs. Legaspi, et. al. As we have
further stated in Cuaresma:
x x x. A direct invocation of the Supreme Courts
original jurisdiction to issue these writs should be
allowed only when there are special and important
reasons therefor, clearly and specifically set out in
the petition. This is established policy. It is a policy
that is necessary to prevent inordinate demands
upon the Courts time and attention which are
better devoted to those matters within its
exclusive jurisdiction, and to prevent further over-
crowding of the Courts docket.
Pursuant to said judicial policy, we resolve to
take primary jurisdiction over the present petition in the
interest of speedy justice and to avoid future litigations
so as to promptly put an end to the present controversy
which, as correctly observed by petitioners, has sparked
Page 153
Civil Procedure
ESGUERRA NOTES
national interest because of the magnitude of the
problem created by the issuance of the assailed
resolution. Moreover, as will be discussed later, we find
the assailed resolution wholly void and requiring the
petitioners to file their petition first with the Court of
Appeals would only result in a waste of time and money.
That the Court has the power to set aside its
own rules in the higher interests of justice is well-
entrenched in our jurisprudence. We reiterate what we
said in Piczon vs. Court of Appeals:
Be it remembered that rules of procedure are
but mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate rather than
promote substantial justice, must always be avoided.
Time and again, this Court has suspended its own rules
and excepted a particular case from their operation
whenever the higher interests of justice so require. In
the instant petition, we forego a lengthy disquisition of
the proper procedure that should have been taken by
the parties involved and proceed directly to the merits of
the case."
Where to appeal
Sec. 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 questions of fact,
of law, or mixed questions of fact and law.
Pure questions of law may also be raised.
Period of appeal
Sec. 4. Period of appeal.
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 petitioner’s 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 fee.
No further extension shall be granted except for the
most compelling reason and in no case shall exceed 15
days.
How appeal taken
Sec. 5. How appeal taken
1. By filing a verified petition for review in 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 P 500 for costs.
Forms and contents
Sec. 6. Contents of the petition.
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;
5. State the specific material dates showing that
it was filed on time.
Effect of failure to comply with requirements
Sec. 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.
Action by court
Sec. 8. Action on the petition.
The Court of Appeals may:
a. Require the respondent to file a
comment on the petition, not a
motion to dismiss, within ten (10)
days from notice; or
b. Dismiss the petition if it finds the
same to be:
1. Patently without merit;
2. Prosecuted manifestly for
delay; or
3. That the questions raised
therein are too
unsubstantial to require
consideration.
When petition given due course
Sec. 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 finds
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.
Effect of appeal
Sec. 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.
Page 154
Civil Procedure
ESGUERRA NOTES
General rule: appeal does not stay award, judgment,
final order, or resolution
Exceptions:
a. when CA directs otherwise; or
b. when the law directs otherwise
(additional exception)
The fact that the Ombudsman Act gives parties the right
to appeal from its decisions should generally carry with
it the stay of these decisions pending appeal. Otherwise,
the essential nature of these judgments as being
appealable would be rendered nugatory. The general
rule is that judgments by lower courts or tribunals
become executory only after it has become final and
executory, execution pending appeal being an exception
to this general rule.
Where the legislature has seen fit to declare that the
decision of the quasi-judicial agency is immediately final
and executory pending appeal, the law expressly so
provides. Sec. 12 of Rule 43 should therefore be
interpreted as mandating that the appeal will not stay
the award, judgment, final order or resolution unless the
law directs otherwise. (Lapid v. CA, GR 142261, June
29, 2000)
NOTE: Lapid v. CA and Ombudsman v. Laja no
longer apply due to Resolution dated 5 October
2010
Ombudsman v. Samaniego (2010)
Section 7, Rule III of the Rules of Procedure of
the Office of the Ombudsman, as amended by
Administrative Order No. 17 dated 15 September 2003
provides:
… Rule 45
An appeal shall not stop the decision from
being executory. In case the penalty is suspension
or removal and the respondent wins such appeal,
he shall be considered as having been under
preventive suspension and shall be paid the salary
and such other emoluments that he did not receive
by reason of the suspension or removal.
A decision of the Office of the
Ombudsman in administrative cases shall be
executed as a matter of course. The Office of the
Ombudsman shall ensure that the decision shall be
strictly enforced and properly implemented. The refusal
or failure by any officer without just cause to comply
with an order of the Office of the Ombudsman to
remove, suspend, demote, fine, or censure shall be a
ground for disciplinary action against such officer
An Ombudsman’s decision imposing the
penalty of suspension for one year is immediately
executory pending appeal. It cannot be stayed by the
mere filing of an appeal to the CA. Respondent cannot
successfully rely on Section 12, Rule 43 of the Rules of
Court which provides:
SEC. 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.
In the first place, the Rules of Court may apply
to cases in the Office of the Ombudsman suppletorily
only when the procedural matter is not governed by any
specific provision in the Rules of Procedure of the Office
of the Ombudsman. Here, Section 7, Rule III of the
Rules of Procedure of the Office of the Ombudsman, as
amended, is categorical, an appeal shall not stop the
decision from being executory.
Moreover, Section 13 (8), Article XI of the
Constitution authorizes the Office of the Ombudsman to
promulgate its own rules of procedure. In this
connection, Sections 18 and 27 of the Ombudsman Act
of 1989 also provide that the Office of the Ombudsman
has the power to promulgate its rules of procedure for
the effective exercise or performance of its powers,
functions and duties and to amend or modify its rules as
the interest of justice may require. For the CA to issue a
preliminary injunction that will stay the penalty imposed
by the Ombudsman in an administrative case would be
to encroach on the rule-making powers of the Office of
the Ombudsman under the Constitution and RA 6770 as
the injunctive writ will render nugatory the provisions of
Section 7, Rule III of the Rules of Procedure of the Office
of the Ombudsman.
Clearly, Section 7, Rule III of the Rules of
Procedure of the Office of the Ombudsman supersedes
the discretion given to the CA in Section 12, Rule 43 of
the Rules of Court when a decision of the Ombudsman in
an administrative case is appealed to the CA. The
provision in the Rules of Procedure of the Office of the
Ombudsman that a decision is immediately executory is
a special rule that prevails over the provisions of the
Rules of Court. Specialis derogat generali. When two
rules apply to a particular case, that which was specially
designed for the said case must prevail over the other.
PETITION FOR REVIEW ON CERTIORARI
Appeal by Certiorari to the Supreme
Court
What to file; from what courts
Sec. 1. Filing of petition with Supreme Court.
A party desiring to appeal by certiorari from a judgment
or final order or resolution of the Court of Appeals, the
Sandiganbayan, the Regional Trial Court or other courts
whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari.
The petition shall raise only questions of law which must
be distinctly set forth.
Remedies of appeal and certiorari mutually
exclusive; Rule 45 distinguished from Rule 65;
Petition for Certiorari treated as Petition for
Review
The remedies of appeal and certiorari are mutually
exclusive and not alternative nor successive. The
distinctions between Rules 45 and 65 are far and wide.
However, the most apparent is:
RULE 45 – Petition for review on
certiorari (appeal by certiorari)
- involves correction of errors and judgment
- mode of appeal
RULE 65 – Petition for certiorari (special
civil action for certiorari)
- involves error of jurisdiction
- special civil action
Page 155
 Civil Procedure
ESGUERRA NOTES

CERTIORARI UNDER CERTIORARI UNDER 65 denied GFB’s MR. Accordingly, GFB filed a Notice of
RULE 45 Appeal, to which petitioners filed a Motion to Dismiss for
being filed late. Said Motion to Dismiss was granted.
Petition is based on Petition raises the issue as to GFB then elevated the case before the CA. The CA ruled
questions of law. whether the lower court acted in GFB’s favor hence, petitioner filed a petition for
without jurisdiction or in excess of certiorari under Rule 65 before the SC.
jurisdiction or with grave abuse of
discretion. Issue: Are petitioners’ mode of appeal (petition for
It is a mode of appeal. It is an original action. certiorari under Rule 65) the proper remedy to elevate
Involves the review of the Directed against an interlocutory the CA’s decision before the SC?
judgment award or final order of the court or where there is
order on the merits. no appeal or any other plain, Held: No. Petitioners and counsel confuse their petition
as one Petition for Review under Rule 45 with a Petition
speedy or adequate remedy.
for Certiorari under Rule 65. For while they treat it as
one for Review on Certiorari, they manifest that it is filed
Must be made within the Filed not later than 60 days from
pursuant to Rule 65 of the 1997 Rules of Civil
reglementary period. notice of judgment, order or
Procedure in relation to Rule 45 of the New Rules of
resolution appealed from.
Court.
Stays the judgment or Unless a writ of preliminary
order appealed from. injunction or temporary restraining
In Ligon v. Court of Appeals where the therein
order is issued does not stay the
petitioner described her petition as an appeal under
challenged proceeding.
Rule 45 and at the same time as a special civil
The appellant and the The parties are the aggrieved party
action of certiorari under Rule 65 of the Rules of
appellee are the original against the lower court or quasi-
Court, this Court, in frowning over what it described as
parties to the action, and judicial agency and the prevailing
a chimera, reiterated that the remedies of appeal and
the lower court or quasi- parties.
certiorari are mutually exclusive and not alternative nor
judicial agency is not
successive.
impleaded.
Motion for reconsideration Motion for reconsideration or for To be sure, the distinctions between Rules 45
is not required. new trial is required; and 65 are far and wide. However, the most apparent is
If a motion for reconsideration or that errors of jurisdiction are best reviewed in a special
new trial is filed, the period shall civil action for certiorari under Rule 65 while errors of
not only be interrupted but another judgment can only be corrected by appeal in a petition
60 days shall be given to the for review under Rule 45.
petitioner. ( SC Admin. Matter 02-
03 ) This Court, however, in accordance with the
The court is in the exercise Court exercises original jurisdiction. liberal spirit which pervades the Rules of Court and in
of its appellate jurisdiction the interest of justice may treat a petition for certiorari
and power of review. as having filed under Rule 45, more so if the same was
filed within the reglementary period for filing a petition
for review.
Nuez v. GSIS Family Bank (2005)
The records show that the petition was filed on
Facts: Petitioners are heirs of Leonilo who, during his time both under Rules 45 and 65. Following Delsan
lifetime, obtained loans from GSIS Family Bank (GFB). Transport, the petition, stripped of allegations of grave
All these loans were secured by a real estate mortgage. abuse of discretion, actually avers errors of judgment
On the maturity of said loans, Leonilo executed a which are the subject of a petition for review.
promisory note. 19 years after the promisory note
matured, GFB undertook to extrajudicially foreclose the
properties which secured the loans. During the auction Only questions of law may be raised in Rule 65
sale, GFB was the highest bidder thus, a certificate of
sale was issued in its favor. Exceptions:

Subsequently, Leonilo filed a complaint with

the RTC against GFB for the Annulment of Extrajudicial
Foreclosure Sale, Reconveyance and Cancellation of
Encumbrances. Leonilo alleged that GFB no longer had
the right to file its petition for extrajudicial foreclosure
since prescription had already set in.
The RTC found for Leonilo who died during the
pendency of the trial thus, he was substituted by
petitioners. GFB filed an MR on the last day of the 15-
day period within which it could interpose an appeal, but
it did not comply with the rules on notice of hearing. As
such, petitioners filed a Motion to Strike Out MR with
Motion for the issuance of a writ of execution.
A.M. No. 07-9-12-SC
25 September 2007
THE RULE ON THE WRIT OF AMPARO
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 in habeas
corpus cases.

GFB filed an Opposition with Motion to Admit

its MR, attributing its failure to incorporate the notice of
hearing to inadvertent deletion. Eventually, the RTC

Page 156
Civil Procedure
ESGUERRA NOTES
A.M. No. 08-1-16-SC
22 January 2008
THE RULE ON THE WRIT OF HABEAS DATA
SEC. 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.
Questions of law and questions of fact
distinguished; if no questions of fact, Rule 45
petition
A question of law exists when there is doubt or
controversy as to what the law is on a certain state of
facts, and there is a question of fact when the doubt or
difference arises as to the truth or falsehood of facts, or
when the query necessarily invites calibration of the
whole evidence considering mainly the credibility of
witnesses, existence and relevancy of specific
surrounding circumstances, their relation to each other
and to the whole and probabilities of the situation.
Ordinarily, the determination of whether an appeal
involves only questions of law or both questions of law
and fact is best left to the appellate court, and all doubts
as to the correctness of such conclusions will be resolved
in favor of the Court of Appeals.
The test of whether a question is one of law or of fact is
not the appellation given to such question by the party
raising the same; rather, it is whether the appellate
court can determine the issue raised without reviewing
or evaluating the evidence, in which case, it is a
question of law; otherwise, it is a question of fact.
(China Road and Bridge Corp. v. CA, GR 137898,
December 15, 2000)
Time for filing
Sec. 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 petitioner’s motion
for new trial or reconsideration filed in due time after
notice 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.
Docket and other lawful fees
Sec. 3. Docket and other lawful fees; proof of service of
petition.
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
Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be submitted
together with the petition.
Contents of and documents to accompany petition
Sec. 4. Contents of petition.
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;
5. Certificate of non-forum shopping.
Effect of failure to comply with requirements
Sec. 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.
Denial moto proprio
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 too unsubstantial to require
consideration.
Review discretionary
Sec. 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 court’s
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.
Pleadings and documents that may be required
Sec. 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
Page 157
Civil Procedure
ESGUERRA NOTES
appropriate, and impose the corresponding sanctions in
case of non-filing or unauthorized filing of such
pleadings and documents or noncompliance with the
conditions therefor.
Sec. 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.
Rule applicable to both civil and criminal cases
Sec. 9. Rule applicable to both civil and criminal cases.
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.
Questions of law and questions of fact
distinguished; if no questions of fact, Rule 45
petition.
China Road and Bridge Corp v. CA (2000)
Facts: China Road and Bridge Corp (CRBC), is a
corporation organized under the laws of China, which is
duly licensed by the SEC to do business in the
Philippines. It was awarded by the Philippine
Government the contract to construct the EDSA Shaw
Overpass. To which, it subcontracted High Quality
Builders and Traders (HQBT), a domestic corporation.
The president of HQBT executed a Continuing
Suretyship in favor of Jade Bank binding herself to pay
the obligation of HQBT arising from all credit
accommodations executed by Jade Bank to HQBT.
Subsequently, HQBT executed a Deed of Assignment in
favor of Jade Bank in consideration of a 5Million pesos
loan. Said Deed was with the approval of CRBC.
Thereafter, HQBT obtained several loans secured by
various promisory notes. HQBT also indorsed different
checks covering the amount released by Jade Bank.
When Jade Bank deposited the checks for
payment, they were all dishonored. Jade Bank
demanded HQBT to pay its obligations, however, the
same were unheeded. Accordingly, Jade Bank filed a
case for collection against HQBT, HQBT’s president, and
CRBC.
CRBC filed a Motion to Dismiss on the ground
of lack of cause of action, which was granted by the
RTC. Its MR having been denied, Jade Bank appealed to
the CA under Rule 41. Subsequently, CRBC filed with the
CA a Motion to Dismiss Appeal asserting that the
determination of whether the ultimate facts in a
Complaint state a cause of action against defendant is a
pure question of law and does not involve any question
of fact. As such, the proper mode of appeal must be
under Rule 45 and not Rule 41. The CA denied CRBC’s
motion to dismiss. Aggrieved, CRBC elevated the case
before the SC.
Issue: Is a petition for review under Rule 45 the proper
mode of appeal in this case since the issues raised by
Jade Bank are purely questions of law?
Held: Yes. Jade Bank in its Appellant's Brief raised the
following questions, which it erroneously designated as
questions of fact, in an attempt to place its appeal within
the jurisdiction of the Court of Appeals:
4.1.1. Whether or not the amended complaint
together with the Annexes attached and forming an
integral part thereof, states a sufficient cause of action
against the defendant-appellee;
4.1.2. Whether or not there was an
unwarranted reversal of the Honorable Regional Trial
Court's Orders stating that the complaint states a
sufficient cause of action;
4.2.1. Whether or not the Motion to Dismiss
the complaint can be considered also as a Motion to
Dismiss the Amended Complaint.
We fail to see how these issues raised by
JADEBANK could be properly denominated questions of
fact. The test of whether a question is one of law or of
fact is not the appellation given to such question by the
party raising the same; rather, it is whether the
appellate court can determine the issue raised without
reviewing or evaluating the evidence, in which case, it is
a question of law; otherwise, it is a question of fact.
Applying the test to the instant case, it is clear that
private respondent raises pure questions of law which
are not proper in an ordinary appeal under Rule 41, but
should be raised by way of a petition for review on
certiorari under Rule 45.
In resolving the issue it is necessary to
determine only if private respondent's appeal to the
Court of Appeals involved purely questions of law, in
which case the proper mode of appeal would be a
petition for review on certiorari to the Supreme Court
under Rule 45; or questions of fact or mixed questions
of fact and law, in which case the proper mode would be
by ordinary appeal under Rule 41.
A question of law exists when there is doubt or
controversy as to what the law is on a certain state of
facts, and there is a question of fact when the doubt or
difference arises as to the truth or falsehood of facts, or
when the query necessarily invites calibration of the
whole evidence considering mainly the credibility of
witnesses, existence and relevancy of specific
surrounding circumstances, their relation to each other
and to the whole and probabilities of the situation.
Ordinarily, the determination of whether an appeal
involves only questions of law or both questions of law
and fact is best left to the appellate court, and all doubts
as to the correctness of such conclusions will be resolved
in favor of the Court of Appeals. However, in the instant
case, we find that there was grave abuse of discretion
on the part of respondent Court of Appeals, hence, we
grant the petition.
The ground for dismissal invoked by petitioner
is that the complaint of JADEBANK before the trial court
stated no cause of action, under Sec. 1, par. (g), Rule
16, the 1997 Revised Rules of Civil Procedure. It is well
settled that in a motion to dismiss based on lack of
cause of action, the issue is passed upon on the basis of
the allegations assuming them to be true. The court
does not inquire into the truth of the allegations and
declare them to be false, otherwise it would be a
procedural error and a denial of due process to the
plaintiff. Only the statements in the complaint may be
properly considered, and the court cannot take
cognizance of external facts or hold preliminary hearings
to ascertain their existence. To put it simply, the test for
determining whether a complaint states or does not
state a cause of action against the defendants is
Page 158
Civil Procedure
ESGUERRA NOTES
whether or not, admitting hypothetically the truth of the
allegations of fact made in the complaint, the judge may
validly grant the relief demanded in the complaint.
In a motion to dismiss based on failure to state
a cause of action, there cannot be any question of fact
or "doubt or difference as to the truth or falsehood of
facts," simply because there are no findings of fact in
the first place. What the trial court merely does is to
apply the law to the facts as alleged in the complaint,
assuming such allegations to be true. It follows then
that any appeal therefrom could only raise questions of
law or "doubt or controversy as to what the law is on a
certain state of facts." Therefore, a decision dismissing a
complaint based on failure to state a cause of action
necessarily precludes a review of the same decision on
questions of fact. One is the legal and logical opposite of
the other.
Rule 38
Relief from Judgments, Orders or
Other Proceedings
1997 Rules on Civil Procedure, 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.
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.
* The phrase “any court” refers only to
Municipal/Metropolitan and Regional Trial Courts.
Purcon vs. MRM Philippines, Inc. (2008)
Facts: Petitioner was hired by respondent MRM
Philippines, Inc as a seaman on January 28, 2002. On
June 2002, petitioner felt an excruciating pain in his left
testicle. After being examined, he was diagnosed with
hernia. Subsequently, petitioner was repatriated due to
his ailment. Upon his return to the Philippines, petitioner
was again examined by the company physician and the
latter declared that he was fit to resume work. When
petitioner reported to MRM Philippines, Inc. hoping to be
re-hired for another contract, he was told that there was
no vacancy for him. Petitioner a complaint filed by
petitioner for reimbursement of medical expenses,
sickness allowance and permanent disability benefits
with prayer for compensatory, moral and exemplary
damages and attorney's fees before the Labor Arbiter.
However, the Labor Arbiter dismissed the complaint for
utter lack of merit. On appeal, the NLRC affirmed the
decision of the labor arbiter. Thereafter, petitioner filed
a petition for certiorari under Rule65 of the Revised
Rules of Court with the Court of Appeals(CA). However,
the CA dismissed the case due to formal infirmities.
Petitioner's motion for reconsideration was also denied.
Subsequently, the CA resolution became final and
executory. Petitioner filed with this Court a petition for
review on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure assailing the resolutions of the CA, which
dismissed his petition for certiorari. In Our Resolution
dated July 16, 2007, We denied the petition. Thus,
petitioner filed the instant petition for relief from
judgment.
Issue: Can petitioner avail of a petition for relief from
judgment under Rule 38 of the 1997 Rules of Civil
Procedure from the resolution denying his petition for
review?
Held: We answer in the negative. A petition for relief
from judgment is not an available remedy in the
Supreme Court. First, although Section 1 of Rule 38
states that when a judgment or final order is entered
through fraud, accident, mistake, or excusable
negligence, a party in any court may file a petition for
relief from judgment, this rule must be interpreted in
harmony with Rule 56, which enumerates the original
cases cognizable by the Supreme Court. A petition for
relief from judgment is not included in the list of Rule56
cases originally cognizable by this Court. Second, while
Rule 38 uses the phrase "any court," it refers only to
Municipal/Metropolitan and Regional Trial Courts. Third,
the procedure in the CA and the Supreme Court are
governed by separate provisions of the Rules of Court.
Neither the Rules of Court nor the Revised Internal Rules
of the CA allows the remedy of petition for relief in the
CA. There is no provision in the Rules of Court making
the petition for relief applicable in the CA or this Court.
The procedure in the CA from Rules 44 to 55, with the
exception of Rule 45which pertains to the Supreme
Court, identifies the remedies available before said Court
such as annulment of judgments or final orders or
resolutions (Rule 47), motion for reconsideration (Rule
52), and new trial (Rule 53). Nowhere is a petition for
relief under Rule 38mentioned.If a petition for relief
from judgment is not among the remedies available in
the CA, with more reason that this remedy cannot be
availed of in the Supreme Court. A petition for relief
raises questions of facts on fraud, accident, mistake, or
excusable negligence, which are beyond the concerns of
this Court.
Grounds
(1) When judgment or final order is entered or any other
proceeding is thereafter taken against petitioner through
FAME
(2) When petitioner has been prevented from taking an
appeal by FAME
* Requires final judgment or loss of appeal
* Only available against a final and executory
judgment
Valencia v. CA (2001)
Facts: Rufino Valencia entered into a lease agreement
with the Roman Catholic Bishop of Malolos (RCBM)
involving a fishpond. The people of Barrio Sta. Cruz,
Paombong filed a complaint against RCBM for
declaration of nullity of the title of the fishpond alleging
ownership of the fishpond and that RCBM was a mere
trustee. They prayed for the issuance of an injunction to
prevent RCBM from leasing the fishpond or in case it had
already been leased, from implementing the lease.
Page 159
Civil Procedure
ESGUERRA NOTES
The RTC rendered judgment upholding the
validity of RCBMs title and its lease contract with
petitioner. However, he dismissed petitioners
counterclaim for lack of evidence. Upon belatedly
learning of said judgment, petitioner moved for
execution pending appeal, contending that since the trial
court found him entitled to possession of the fishpond, it
is unfair to deprive him thereof. Meanwhile, he filed a
petition for relief from the portion of the judgment
dismissing his counterclaim, where he alleged that his
failure to move for reconsideration of or appeal from
said judgment was due to a mistaken belief of his
former counsel that he was no longer interested to
pursue the counterclaim.
The RTC deferred action on the petition for
relief. The trial court also said that a grant of the
petition for relief during the pendency of the appeal
would pre-empt the appellate court’s ruling in case
private respondents would appeal. The court added that
they were entitled to have their appeal given due
course, otherwise, the grant of the petition might bring
incalculable harm to them. Petitioner filed with the Court
of Appeals a petition for certiorari and mandamus
contending that it was grave abuse of discretion for the
trial court to defer action on his petition for relief.
The Court of Appeals promulgated its decision
dismissing the petition for certiorari and mandamus
concludin that there was nothing capricious or whimsical
in the trial court’s decision to defer action on the petition
for relief on the ground that it would pre-empt the ruling
of the Court of Appeals. Lastly, since the petition for
relief remained to be resolved by the trial court, the
Court of Appeals did not deem it appropriate to pass
upon the issue of whether the dismissal of petitioners
counterclaim was a violation of his right to due process.
Hence, this petition for review.
Issue: WON the trial court should have allowed the
petition for relief.
Held: Petitioner alleges that the Court of Appeals erred
in refusing to compel the trial court to act on the petition
for relief. According to him, the trial courts duty under
Rule 38 of the Rules of Court, except sections 4 & 6
thereof, is ministerial such that upon finding the petition
sufficient in form and substance, the judge must order
the other party to answer, conduct a hearing and decide
whether to grant or deny the petition. The judge was
therefore remiss in his duty when he deferred action on
the petition, since his only role was either to dismiss or
grant it, according to petitioner.
Private respondents argue that the trial court
was correct in deferring action on the petition for relief,
in the interest of justice and equity. To grant the petition
pending private respondents appeal, they aver, would
pre-empt the Court of Appeals. This, they say, is not
abuse of discretion amounting to lack of jurisdiction.
We find no merit in petitioners
argument. A petition for relief under Rule 38 is only
available against a final and executory judgment. In this
case, the trial courts judgment subject of the petition for
relief has not yet attained finality because of the timely
appeal by private respondents. Therefore, petitioner
cannot require the judge to follow the procedure laid
down in Rule 38. The judge did not err nor abuse his
discretion when he deferred action on the petition.
Fraud, accident, mistake, excusable negligence
Gomez v Montalban (2008)
Facts: Lita Montalban obtained a loan from Elmer
Gomez in the amount of P40,000 with a voluntary
proposal on her part to pay 15% interest per month.
Montalban failed to comply with her obligation so Gomez
filed a complaint in the RTC for sum of money.
Summons was served but despite her receipt, she still
failed to file an Answer. She was declared in default and
upon motion, Gomez was allowed to present evidence ex
parte. The RTC rendered a decision ordering Montalban
to pay Gomez.
Thereafter, respondent filed a Petition for
Relief from Judgment alleging that there was no proper
service of summons since there was no personal service.
She alleged that one Mrs. Alicia Dela Torre was not
authorized to receive summons and that her failure to
file an Answer was due to fraud, accident, mistake,
excusable negligence (FAME). The Petition was set for
hearing but counsel for respondent failed to appear
before the court hence the dismissal of the Petition.
Montalban filed for a Motion for
Reconsideration of the dismissal of the Petition stating
that counsel’s failure to appeal was unintentional to
which the RTC granted. To this instance, Gomez filed a
Petition for Reconsideration.
Issue: WON the granting of Petition for Relief from
Judgment by the RTC is proper.
Held: NO. The RTC committed an error in doing so. A
Petition for Relief under Rule 38 is only available against
a final and executory judgment and the grounds include
fraud, accident, mistake or excusable negligence.
When a party has another remedy available to
him, which may be either a motion for new trial or
appeal from an adverse decision of the trial court, and
he was not prevented by fraud, accident, mistake or
excusable negligence from filing such motion or taking
such appeal, he cannot avail himself of this petition.
Discussion on Grounds:
"Mistake" refers to mistake of fact, not of law,
which relates to the case. The word "mistake," which
grants relief from judgment, does not apply and was
never intended to apply to a judicial error which the
court might have committed in the trial. Such errors
may be corrected by means of an appeal. This does not
exist in the case at bar, because respondent has in no
wise been prevented from interposing an appeal.
"Fraud," on the other hand, must be extrinsic
or collateral, that is, the kind which prevented the
aggrieved party from having a trial or presenting his
case to the court,or was used to procure the judgment
without fair submission of the controversy. This is not
present in the case at hand as respondent was not
prevented from securing a fair trial and was given the
opportunity to present her case.
Negligence to be excusable must be one which
ordinary diligence and prudence could not have guarded
against. Under Section 1 Rule 38, the "negligence" must
be excusable and generally imputable to the party
because if it is imputable to the counsel, it is binding on
Page 160
Civil Procedure
ESGUERRA NOTES
the client. To follow a contrary rule and allow a party to
disown his counsel's conduct would render proceedings
indefinite, tentative, and subject to reopening by the
mere subterfuge of replacing counsel. What the
aggrieved litigant should do is seek administrative
sanctions against the erring counsel and not ask for the
reversal of the court's ruling.
In Tuason v CA, the court explained the nature
of a Petition for Relief from Judgment:
“A petition for relief from judgment is an
equitable remedy that is allowed only in exceptional
cases where there is no other available or adequate
remedy. When a party has another remedy available to
him, which may be either a motion for new trial or
appeal from an adverse decision of the trial court, and
he was not prevented by fraud, accident, mistake or
excusable negligence from filing such motion or taking
such appeal, he cannot avail himself of this petition.
Indeed, relief will not be granted to a party who seeks
avoidance from the effects of the judgment when the
loss of the remedy at law was due to his own
negligence; otherwise the petition for relief can be used
to revive the right to appeal which had been lost thru
inexcusable negligence.”
In the case, Montalban contended that
judgment was entered against her through mistake or
fraud because she was not duly served summons.
However, under the discussion of the following grounds,
the SC sees no merit in her petition. Petition for Relief
from Judgment is set aside.
1997 Rules on Civil Procedure, 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
petitioner's good and substantial cause of action or
defense, as the case may be.
(1) Within 60 days after petitioner learns of the
judgment, final order, or other proceeding to be set
aside; AND
(2) Not more than 6 months after such judgment or final
order was entered, or such proceeding was taken
The two periods for the filing of a petition for relief are
not extendible and never interrupted. Both periods must
be complied with. [Phil. Rabbit Bus Lines Inc. v. Ariaga]
Reckoning points:
(1) The 60-day period is reckoned from the time the
party acquired knowledge of the order, judgment or
proceeding. Not from the date he actually read the same
[Perez v. Araneta]
(2) 6-months period is computed from the date of entry
of the order or judgment
* Strictly followed
Victory Liner, Inc. v. Michael Malinias
(2007)
Facts: A vehicular collision occurred between a bus
owned by petitioner Victory Liner, Inc. and an Isuzu
Truck used by respondent Michael Malinias. Nobody
died, but both vehicles were damaged from the accident.
A complaint for sum of money and damages was
instituted by respondent against petitioner and the bus
driver.
In the course of trial, respondent finished
presenting his evidence and rested his case. In the
meantime, counsel for petitioner filed a motion to
withdraw as counsel, but the same was denied by the
MTC as the motion did not bear any signature of
conformity from the petitioner. When the case was
called for the reception of petitioner’s evidence, no
appearance was made for the bus company. Respondent
thus immediately moved that petitioner be declared to
have waived its right to adduce evidence in its favor and
that the case be deemed submitted for judgment. The
MTC found merit in respondent’s contention, and
ordered the case be deemed submitted for decision.
Through its new counsel, petitioner filed a
Motion for Reconsideration with a defective Notice of
Hearing. Accordingly, the MTC declared that its earlier
judgment had become final and executory. In the same
order and upon the same predicates, the MTC also
granted the Motion for Issuance of Writ of Execution
filed by respondent.
Petitioner responded to the foregoing
developments by filing a Notice of Appeal which was
however denied, the MR being defective and not having
tolled the reglementary period for appeal.
Petitioner filed a Petition for Relief from Judgment with
the MTC which was denied by the MTC on the ground
that it had been filed out of time. The MTC explained
that the petition for relief from judgment must have
been filed either within sixty (60) days from the date
petitioner’s new counsel learned of the judgment, or
sixty (60) days after learning that the Motion for
Reconsideration had been denied for having been filed
out of time. Neither circumstance was met by petitioner.
Subsequently, the MTC likewise denied a Motion for
Reconsideration filed by petitioner.
Second, petitioner filed a petition for
certiorari with the RTC. The petition for certiorari was
dismissed by the RTC agreeing with the MTC that the
Petition for Relief from Judgment had been belatedly
filed. Petitioner filed an MR, which was again denied.
Petitioner filed with the Court of Appeals a "Petition for
Certiorari to Annul Judgment" under the aegis of Rule 47
of the 1997 Rules of Civil Procedure. Interestingly,
based on the first paragraph and the express relief
prayed for in this petition, the "judgment" sought to be
annulled was not the final and executory judgment of
the MTC, but rather, the two orders of the RTC which
successively dismissed the special civil action for
certiorari, and directed the issuance of a writ of
execution in favor of respondent. However, in explaining
the "nature of the petition," petitioner claimed that it
was seeking to annul the judgment and orders of both
the RTC and the MTC, although the issues identified in
the petition pertain only to "serious errors" and "grave
abuse of discretion" on the part of the RTC. There is a
general allegation that the acts of the RTC in granting
the motion for execution even before petitioner’s motion
for reconsideration was acted upon constituted an
extrinsic fraud, but no particular arguments were offered
to explain why that was so.
Page 161
Civil Procedure
ESGUERRA NOTES
The Court of Appeals further held that it was
clear that the ground of extrinsic fraud raised by
petitioner had already been availed of in its earlier
petition for relief from judgment before the MTC. Such
circumstance contradicted Section 2 of Rule 47, which
provides that "extrinsic fraud shall not be a valid ground
(for annulment of judgment) if it was availed of, or could
have been availed of, in a motion for new trial or
petition for relief."
Issue: What should have been the remedy pursued by
petitioner?
Held: A proper remedy for the petitioner is found under
Rule 38 of the 1997 Rules of Civil Procedure, which
governs petitions for relief from judgment. Indeed,
Section 2, Rule 38 finds specific application in this case,
as it provides that "[w]hen 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 [for relief from denial of appeal] in such court
and in the same case praying that the appeal be given
due course." Such petition should be filed within sixty
(60) days after the petitioner learns of the judgment or
final order, and not more than six (6) months after such
judgment or final order was entered. The facts of this
case indicate that petitioner could have timely resorted
to this remedy.
Notably, it was only after the Notice of Appeal
was denied that the petitioner had pursued the two
remedies it could have undertaken from the MTC Order
declaring its motion for reconsideration as a mere scrap
of paper. First, petitioner filed a Petition for Relief from
Judgment with the MTC. The problem with this remedy
was the utter belatedness in the resort thereto. Section
3 of Rule 38 requires that said petition must be filed
within sixty (60) days after 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. Neither benchmark
was met by the petitioner, since the petition was filed
only on 25 October 1999, or some sixteen (16) months
after the rendition of the judgment sought to be set
aside, and around fourteen (14) months after such
judgment was declared final and executory. Petitioner
had opportunely learned of both the rendition of the
judgment and the Order refusing to give cognizance to
the motion for reconsideration. Had it simply consulted
the rulebook, it should have realized that a petition for
relief from judgment was a remedy available to it, and
certainly one more appropriate than the Notice of Appeal
it ultimately resorted to.
Contents
Affidavit of merit (Sec. 3)
FORM AND CONTENTS OF THE PETITION
(1) The petition for relief must be verified
(2) The petition must be accompanied by an
affidavit showing the FAME relied upon; and
(3) The affidavit of merit accompanying the petition
must also show the facts constituting the
petitioner’s good and substantial cause of action or
defense as the case may be
 The absence of an affidavit of merits is a fatal
defect and warrant denial of the petition
[Fernandez v. Tan Tiong Tick].
 However, it is not a fatal defect so long as the
facts required to be set out also appear in the
verified petition [Fabar Inc. v. Rodelas].
When Affidavit of Merit is not necessary:
(1) When there is lack of jurisdiction over the
defendant;
(2) When there is lack of jurisdiction over the
subject matter;
(3) When judgment was taken by default;
(4) When judgment was entered by mistake or
was obtained by fraud; or
(5) Other similar cases.
When motion for reconsideration considered as petition
for relief
Action of court before answer
Power to deny (Sec. 4)
1997 Rules on Civil Procedure, 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 the 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.
Preliminary injunction pending proceedings (Sec. 5)
1997 Rules on Civil Procedure, 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.
Order to file answer (Sec. 4)
Procedure
Availability of preliminary injunction (Sec. 5)
Proceedings after answer is filed (Sec. 6)
1997 Rules on Civil Procedure, 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 be 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
Page 162
Civil Procedure
ESGUERRA NOTES

shall stand as if such judgment, final order or other In a petition for certiorari and prohibition with
proceeding had never been rendered, issued or taken. prayer for preliminary injunction and temporary
The court shall then proceed to hear and determine the restraining order filed with the Intermediate Appellate
case as if a timely motion for a new trial or Court, the spouses Alvendias sought the annulment of
reconsideration had been granted by it. the writ of execution, the levy made upon the leasehold
rights and the writ of possession.
Where denial of appeal is set aside (Sec. 7)
1997 Rules on Civil Procedure, Rule 38 The IAC dismissed the aforesaid petition. The
Alvendias filed an urgent motion for reconsideration.
Section 7. Procedure where the denial of an appeal Pending action thereon, the spouses manifested to the
is set aside. — Where the denial of an appeal is set court, thru motion, their willingness to immediately pay
aside, the lower court shall be required to give due to Bonamy the remaining balance of the judgment
course to the appeal and to elevate the record of the sought to be enforced. The IAC issued two resolutions,
appealed case as if a timely and proper appeal had been denominated as Resolutions I and II.
made. Resolution I denied the Alvendias' motion for
reconsideration for lack of merit. Resolution II granted
their motion to satisfy the judgment sought to be
Action of court after giving due course
enforced in cash thereby directing the parties to submit
to the court an agreement duly signed by both parties
Grant of petition for relief (Sec. 7)
regarding full satisfaction of the judgment but only after
the total amount involved in said judgment had been
Denial of petition for relief (Rule 41, Sec. 1 (b))
tendered and delivered to Bonamy. The Alvendias then
tendered payment to Bonamy in the form of a cashier's
Section 1. Subject of appeal. — An appeal may
check. Bonamy refused said tender of payment, and
be taken from a judgment or final order that
instead moved for a reconsideration of Resolution II.
completely disposes of the case, or of a particular
matter therein when declared by these Rules to be
Hence, this petition for certiorari and
appealable.
prohibition, praying for the annulment of respondent
court's Resolution I and II alleging that respondent court
No appeal may be taken from:
committed grave abuse of discretion in granting the
…
Alvendias' motion that they be allowed to pay the
judgment debt in cash. Petitioner claims that the
(b) An order denying a petition for relief or any
assailed resolutions are in effect an annulment of the
similar motion seeking relief from judgment.
assailed Orders and Writs of the Bulacan Regional Trial
…
Court, the Certificate of Sale and the Final Deed of Sale
of the Leasehold Rights over the Foreshore Lands;
* Appeal from an order denying a petition for relief is no
longer available under the present rules. The remedy
Issue: WON the writs and orders may be annulled or at
against a denial of a petition for relief is certiorari under
least reopened.
Rule 65, when proper.
Held: No. The writs and orders of the lower court
Remedies after petition for relief expires
sought to be annulled or at least reopened are already
final and executory and in fact already executed. The
Reopening not allowed
judgment which was executed was a compromise
judgment, duly approved by the court and therefore,
Alvendia v. IAC (1990)
final and immediately executory. Bonamy was clearly
entitled to execution since the Alvendias failed to pay on
Facts: A simple collection suit was filed by Bonifacio
time the judgment.
Bonamy against the spouses Alvendia. Thereafter, both
parties submitted to the trial court a "Compromise
It is axiomatic that there is no justification in
Agreement." Subsequently, Bonamy moved for
law and in fact for the reopening of a case which has
execution of judgment. The court ordered the issuance
long become final and which has in fact been
of the writ prayed for. The Alvendias did not move for
executed. Time and again this Court has said that the
reconsideration nor did they elevate the matter to the
doctrine of finality of judgments is grounded on
higher courts. Bonamy sought the issuance of an alias
fundamental consideration of public policy and sound
writ of execution, the first writ having been returned
practice that at the risk of occasional error the
unsatisfied. Pursuant to the alias writ , the provincial
judgments of courts must become final at some definite
sheriff levied on the Alvendias "leasehold rights" over a
date fixed by law.
fishpond. Thereafter, a certificate of sale over said
leasehold right was executed by the Sheriff in favor of
The Alvendias cannot invoke equity as a
Bonamy. More than a year later, the spouses moved for
ground for reopening the case and making the payment
the quashal and annulment of the writ of execution, levy
of the judgment in cash possible. The records show that
and sale.
they had all the opportunity to make such payments on
four occasions but failed. The Alvendias failed to pay on
A final deed of sale was executed and
time the judgment of which the execution sale was a
registered with the Register of Deeds. In an order, the
necessary consequence. They also failed to redeem the
trial court denied the spouses' motion to quash and
property within the required period despite the fact that
ordered instead the issuance of a writ of possession in
the Final Deed of Sale was issued long past the aforesaid
Bonamy's favor. The possession of the fishpond was
period; undeniably showing a lack of intention or
delivered to Bonamy.
capability to pay the same.

Page 163
Civil Procedure
ESGUERRA NOTES
Rule 47
Annulment of Judgment
I. When remedy available
 An action for annulment of judgment is a
remedy in law independent of the case where the
judgment sought to be annulled was rendered.
 Annulment of judgment is resorted to in cases
where the ordinary remedies of new trial, appeal,
petition for relief from judgment, or other
appropriate remedies are no longer available
through no fault of petitioner, and is based on
only two grounds, extrinsic fraud and lack of
jurisdiction. (Alaban v. Court of Appeals, 470
SCRA 697)
a. Where applicable
 Annulment of judgment does not apply to
judgments rendered by quasi-judicial
bodies. It does not also apply to decisions
or orders of the Ombudsman in
administrative cases whose decisions or
orders may be appealed to the Court of
Appeals under Rule 43. (Macalalag v.
Ombudsman, G.R. No. 147995, 5 March
2004)
II. Grounds (Sec. 2)
1. Extrinsic fraud or collateral fraud
 is trickery practiced by the prevailing
party upon the unsuccessful party, which
prevents the latter from fully proving his
case. It affects not the judgment itself but
the manner in which said judgment is
obtained. (People v. Bitanga, G.R. No.
159222, 26 June 2007)
 must emanate from an act of the adverse
party, and the fraud must be of such
nature as to have deprived the petitioner
of its day in court. The fraud is not
extrinsic if the act was committed by the
petitioner's own counsel. (Pinausukan
Seafood House, Roxas Boulevard, Inc. v.
Far East Bank & Trust Company, G.R. No.
159926, 20 January 2014)
 must be sought within four (4) years from
discovery of the fraud, which fact should
be alleged and proven; the particular acts
and omissions constituting extrinsic fraud
must be clearly established. (People v.
Bitanga, supra)
2. Lack of jurisdiction
 petitioner must show not merely an abuse
of jurisdictional discretion but an absolute
lack of jurisdiction. The concept of lack of
jurisdiction as a ground to annul a
judgment does not embrace abuse of
discretion. (Antonino v. The Register of
Deeds of Makati City, G.R. No. 185663, 20
June 2012)
Cosmic Lumber Co v. CA (1996)
Facts: Cosmic Corporation, through its General
Manager, executed a Special Power of Attorney
appointing Paz G. Villamil-Estrada (“Estrada”) as
attorney-in-fact to initiate, institute and file any court
action for the ejectment of third persons and/or
squatters of the entire lot 9127 and 443 for the said
squatters to remove their houses and vacate the
premises in order that the corporation may take material
possession of the entire lot, one of which is respondent
Isidro Perez (“Perez”). Estrada, by virtue of her power of
attorney, instituted an action for the ejectment of
private respondent Isidro Perez and recover the
possession of a portion of lot 443 before the Regional
Trial Court (RTC).
Estrada entered into a Compromise Agreement
with Perez. Although the agreement was approved by
the trial court and the decision became final and
executory, it was not executed within the 5 year period
from date of its finality allegedly due to the failure of
Cosmic Lumber to produce the owner’s duplicate copy of
title needed to segregate from lot 443 the portion sold
by the attorney-in-fact, Paz Estrada to Perez under the
compromise agreement. Respondent filed a complaint to
revive the judgment. Petitioner sought the annulment of
the decision of the trial court based on the compromise
agreement, alleging that it had no knowledge of the
compromise agreement.
Issue: Whether the annulment of the decision of the
trial court must be sustained.
Held: Yes. Nowhere in the authorization was Estrada
granted expressly or impliedly any power to sell the
subject property nor a portion thereof. Neither can a
conferment of the power to sell be validly inferred from
the specific authority to enter into a compromise
agreement because of the explicit limitation fixed by the
grantor that the compromise entered into shall only
be so far as it shall protect the rights and interest of the
corporation in the aforementioned lots.
It is therefore clear that by selling to respondent
Perez a portion of petitioners land through a
compromise agreement, Villamil-Estrada acted without
or in obvious authority. The sale ipso jure is
consequently void. So is the compromise
agreement. This being the case, the judgment based
thereon is necessarily void. Antipodal to the opinion
expressed by respondent court in resolving petitioners
motion for reconsideration, the nullity of the settlement
between Villamil-Estrada and Perez impaired the
jurisdiction of the trial court to render its decision based
on the compromise agreement.
Under authority of Sec. 9, par. (2), of B.P. Blg.
129, a party may now petition the Court of Appeals to
annul and set aside judgments of Regional Trial Courts.
Thus, the Intermediate Appellate Court (now Court of
Appeals) shall exercise x x x x (2) Exclusive original
jurisdiction over action for annulment of judgments of
the Regional Trial Courts x x x x However, certain
requisites must first be established before a final and
executory judgment can be the subject of an action for
annulment. It must either be void for want of jurisdiction
or for lack of due process of law, or it has been obtained
by fraud.
Conformably with law and the above-cited
authorities, the petition to annul the decision of the trial
Page 164
Civil Procedure
ESGUERRA NOTES
court in Civil Case No. D-7750 before the Court of
Appeals was proper. Emanating as it did from a void
compromise agreement, the trial court had no
jurisdiction to render a judgment based thereon.
It would also appear, and quite contrary to the
finding of the appellate court, that the highly
reprehensible conduct of attorney-in-fact Villamil-
Estrada in Civil Case No. 7750 constituted an extrinsic or
collateral fraud by reason of which the judgment
rendered thereon should have been struck down.
For sure, the Court of Appeals restricted the
concept of fraudulent acts within too narrow limits.
Fraud may assume different shapes and be committed in
as many different ways and here lies the danger of
attempting to define fraud. For man in his ingenuity and
fertile imagination will always contrive new schemes to
fool the unwary.
There is extrinsic fraud within the meaning of Sec.
9, par. (2), of B.P. Blg. 129, where it is one the effect of
which prevents a party from hearing a trial, or real
contest, or from presenting all of his case to the court,
or where it operates upon matters, not pertaining to the
judgment itself, but to the manner in which it was
procured so that there is not a fair submission of the
controversy. In other words, extrinsic fraud refers to
any fraudulent act of the prevailing party in the
litigation which is committed outside of the trial of
the case, whereby the defeated party has been
prevented from exhibiting fully his side of the case
by fraud or deception practiced on him by his
opponent. Fraud is extrinsic where the unsuccessful
party has been prevented from exhibiting fully his case,
by fraud or deception practiced on him by his opponent,
as by keeping him away from court, a false
promise of a compromise; or where the defendant
never had knowledge of the suit, being kept in
ignorance by the acts of the plaintiff; or where an
attorney fraudulently or without authority
connives at his defeat; these and similar cases which
show that there has never been a real contest in the
trial or hearing of the case are reasons for which a new
suit may be sustained to set aside and annul the former
judgment and open the case for a new and fair hearing.
III. Where petition filed (Secs. 1, 10)
Judgments, Final Judgments, Final
Orders of Resolutions Orders or Resolutions
of RTC of MTC
Filed with the Court of Filed with the RTC
Appeals
Basis: It has exclusive Basis: RTC as a court of
original jurisdiction over general jurisdiction under
said action under Sec. 9 Sec. 19 (6) of B.P. 129
(2) of B.P. 129
1997 Rules on Civil Procedure, 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 of 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.
1997 Rules on Civil Procedure, Rule 47
Section 10. Annulment of judgments or final orders
of Municipal Trial Courts. — 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.
IV. Annulment of MTC judgment should be
filed with RTC
Victory Liner v. Malinias (2007)
Facts: On 17 July 2001 petitioner filed with the Court
of Appeals a "Petition for Certiorari to Annul Judgment"
under the aegis of Rule 47. In explaining the "nature of
the petition," petitioner claimed that it was seeking to
annul the judgment and orders of both the RTC and the
MTC, although the issues identified in the petition
pertain only to "serious errors" and "grave abuse of
discretion" on the part of the RTC. There is a general
allegation that the acts of the RTC in granting the
motion for execution even before petitioner’s motion for
reconsideration was acted upon constituted an extrinsic
fraud, but no particular arguments were offered to
explain why that was so. The CA dismissed the petition.
Issue: Whether or not the Court of Appeals was the
proper venue for the petition.
Held: Section 2 of Rule 47 does disqualify extrinsic
fraud as a valid ground "if it was availed of, or could
have been availed of, in a motion for new trial or
petition for relief," and such provision would have found
incontestable relevance had the clear object of the
petition for annulment been the MTC judgment. But
petitioner’s action for annulment of judgment did not
provide clarity in that regard, and in fact does devote
considerable effort in imputing errors on the part of the
RTC with the objective of annulling, in particular, the
RTC decision. If that were so, reliance on Section 2 of
Rule 47 would have been misplaced, since the judgment
subject of the petition for relief was different from the
decision subject of the action for annulment of
judgment. Still, given the confused nature of the petition
for annulment of judgment, blame could hardly be
attributed to the RTC.
All told, even if we were to hold that the Court
of Appeals erred in dismissing the petition on the
perceived defect in the verification and certification
requirements, the appellate court would have been left
with an action stigmatized by error upon error
interminably. Most frustratingly, for every procedural
misstep committed by petitioner, there existed a
corresponding viable alternative which would have
necessitated a ruling on the merits, and which petitioner
could have chosen with ease. Instead of filing a Notice of
Appeal, it could have instead filed a special civil action
for certiorari or a petition for relief from judgment.
Instead of filing the no longer timely petition for relief
from judgment, it could have instead by then filed a
petition for annulment of judgment. When it did file a
petition for annulment with the Court of Appeals, it could
have instead filed a more feasible petition for annulment
with the RTC.
V. Period for filing (Sec. 3)
Page 165
Civil Procedure
ESGUERRA NOTES
Extrinsic Fraud Lack of
Jurisdiction
Period for Four (4) years Before it is barred
filing from discovery by laches or
estoppel.
 Laches
 A party may be barred by laches from
invoking lack of jurisdiction for the first
on time on appeal for the purpose of
annulling everything doen in the case,
with the active participation of said party
invoking the plea. (Tijam v.
Sibonghanoy, G.R. No. L-21450, 15 April
1968)
Marcelino v. Court of Appeals (1992)
Facts: Petitioners are the registered owners of the land
in Tarlac but even before WWII respondents have been
and still are in possession of these lands and the titles.
Petitioners demanded the restitution to them of the
physical possession and titles of the property but was
refused by the respondents. RTC dismissed the case on
the ground of laches. CA upheld the decision of the RTC.
Issue: Whether petitioners are guilty of laches.
Held: Yes. Laches in a general sense, means the failure
or neglect for an unreasonable and unexplained length
of time, to do that which, by exercising due diligence
could or should have been done earlier. It is negligence
or omission to assert a right within a reasonable time,
warranting the presumption that the party entitled to
assert it either has abandoned or declined to assert it.
In the case at bar, the petitioners admitted in
their complaint, that the private respondents had been
occupying the parcels of land in question even before
World War II, and that they (private respondents) have
in their possession the titles thereof. For almost 50
years, or until June 20, 1988 no action had been taken
by the petitioners, or their predecessors-in-interest, to
recover possession of the land and the titles thereof.
There is no doubt, therefore, that the petitioner's long
inaction in asserting their right to the contested lots bars
them from recovering the same. The law serves those
who are vigilant and diligent and not those who sleep
when the law requires them to act.
Although the parcels of land in question are
registered under the Torrens System, it is nevertheless
settled in this jurisdiction that the ownership of
registered land may be lost through laches. The doctrine
of laches or of "stale demands" is based on grounds of
public policy which requires, for the peace of society, the
discouragement of stale claims. Unlike the statute of
limitations, laches is not a mere question of time but is
principally a question of the inequity or unfairness of
permitting a stale right or claim to be enforced or
asserted.
The individual elements of laches were
sufficiently and thoroughly discussed by the appellate
court in its decision. We find no need to make any
further disquisition on the matter.
VI. Parties and contents (Sec. 4)
The action for annulment of judgment
shall be commenced by filing:
1. Verified petition alleging therein:
a. With particularity the facts and the
law relied upon; and
b. Petitioner’s good and substantial
cause of action or defense.
2. Filed in seven (7) legible copies together
with sufficient copies corresponding to the
number of respondents.
3. Certified true copy of the judgment or
final order or resolution shall be attached
to the original copy of the petition.
4. Affidavits of witnesses or documents
supporting the cause of action or defense;
and
5. Certificate of non-forum shopping.
 May be filed by a non-party to the
judgment
 The petitioner need not be a party to
the judgment sought to be annulled.
What is essential is that the petitioner
is one who can prove his allegation
that the judgment was obtained and
that he was affected thereby. (Alaban
v, Court of Appeals, supra)
 Available even if judgment has been
executed (Sec. 9)
 The judgment of annulment may
include the award of damages,
attorney's 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. (n)
Islamic Da’Wah Council of the Phils. vs. Court of
Appeals (1989)
Facts: Da Sila, mortgagor and petitioner, mortgagee,
executed a Real Estate Mortgage over a land in Cubao
as security for a 1 million promissory note. Upon default,
petitioner filed for foreclosure with the RTC. Parties
entered into a Compromise Agreement that the land will
be transferred to petitioners. The title was then
transferred in the name of the petitioner. Araneta filed
with the RD a notice of lis pendens in connection with
the ejectment case filed by petitioner against Araneta
but was later on withdrawn by the petitioner. Araneta
filed a notice of adverse claim in connection with the
case filed by da Silva against Araneta. Both lis pendens
and adverse claim were annotated on the title. Petitioner
filed a complaint for quieting of title and recovery of
possession against Araneta and for the cancellation of
the 2 annotations. Pending said case, heirs of Araneta
filed in the CA a petition to annul the judgment in the
foreclosure case. Petitioner filed a Motion to Dismiss the
case before the CA on the ground that the decision in
the foreclosure proceeding had already been executed
and that the heirs were not a party to the proceedings
before the lower court.
Page 166
Civil Procedure
ESGUERRA NOTES

Issue: Whether the petition for annulment of judgment IX. Effect of judgment. (Sec. 7)
is proper.
Extrinsic Fraud Lack of
Held: There can be no question as to the right of any Jurisdiction
persons adversely affected by a judgment to maintain Effect of Court may on Set aside the
an action to enjoin its enforcement and to have it judgment motion, order the questioned
declared a nullity on the ground of fraud and collusion trial court to try judgment and
practiced in the very matter of obtaining the judgment the case as if a render the same null
when such fraud is extrinsic or collateral to the matters timely motion for and void, without
involved in the issues raised at the trial which resulted in new trial had been prejudice to the
such judgment. granted. original action being
re-filed in the proper
It is therefore clear from the foregoing that a court.
person need not be a party to the judgment sought
to be annulled. What is essential is that he can X. Suspension of prescriptive period
prove his allegation that the judgment was
obtained by the use of fraud and collusion and he 1997 Rules on Civil Procedure, Rule 47
would be adversely affected thereby.
Section 8. The prescriptive period for the refiling of
In this present case it is true that the heirs of the aforesaid original action shall be deemed suspended
Araneta are not parties to the foreclosure case. Neither from the filing of such original action until the finality of
are they principally nor secondarily bound by the the judgment of annulment. However, the prescriptive
judgment rendered therein. However, their petition filed period shall not be suspended where the extrinsic-fraud
with the Court of Appeals they alleged fraud and is attributable to the plaintiff in the original action.
connivance perpetuated by and between the Da Silvas
and the Council as would adversely affect them. This
allegation, if fully substantiated by preponderance of
evidence, could be the basis for the annulment of the
civil case. Rule 65
Finally, the Council asserts that the remedy of Certiorari
annulment of judgment applies only to final and
executory judgment and not to that which had already Constitutional provisions on judicial power
been fully executed or implemented. The Council’s
contention is devoid of merit. In Garchitorena v. Sotelo,
¤ 1987 Constitution Article VIII, Section 1, par. 2
the Court affirmed the trial court’s annulment of the
judgment on foreclosure notwithstanding the fact that
Judicial power includes the duty of the courts of justice
ownership of the house and lot subject of the mortgage
to settle actual controversies involving rights which are
had passed from the mortgagee who foreclosed the
legally demandable and enforceable, and to determine
mortgage and purchased the property at public auction
whether or not there has been a grave abuse of
to a person who bought the same and finally to another
discretion amounting to lack or excess of jurisdiction on
individual in whose name the Torrens certificate of title
the part of any branch or instrumentality of the
stood by the time the case reached this Tribunal. (An
Government.
action for annulment of judgment may be availed
of even if the judgment sought to be annulled had
been fully executed and implemented.) Petition for certiorari, in general

1997 Rules on Civil Procedure, Rule 65

VII. Action by the court.
Two Stages:
 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. (Sec. 5, Rule
47)
VIII. Procedure.
 The procedure in ordinary civil cases
shall be observed. Should 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. (Sec. 6, Rule 47)
Section 1. Petition for certiorari. — When any
tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess its or
his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy
in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court,
alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may
require.
The petition shall be accompanied by a certified true
copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant
and pertinent thereto, and a sworn certification of non-
forum shopping as provided in the third paragraph of
section 3, Rule 46.

Page 167
Civil Procedure
ESGUERRA NOTES
Distinction between without jurisdiction, in excess
of jurisdiction and grave of abuse of
discretion
a. Without jurisdiction – the court has no
jurisdiction from the beginning; there is an
absolute want of jurisdiction.
b. In excess of jurisdiction – if the court has
acted beyond the limits of its authority.
c. Grave abuse of discretion – too patent and
gross as to amount to an evasion of a positive
duty, or a virtual refusal to perform the duty
enjoined or an act in contemplation of law, or
where the power is exercised in an arbitrary
and despotic manner by reason of passion and
personal hostility; does not encompass an
error of law nor does it include a mistake in the
appreciation of the contending parties’
respective evidence or the evaluation of their
relative weight.
Remedy to correct errors of jurisdiction
Jamer v. NLRC (1997)
Facts: Petitioners worked as store cashiers at
respondents’ Isetann Department Store. Their work as
store cashiers is to accumulate, at the end of daily
operations, the cash sales receipts of the selling floor
cash register clerks. Thereafter, petitioners will reconcile
the cash sales with the tally sheets to determine
shortages and deposit the same with the bank depositor
of Isetann.
Petitioners discovered a shortage
of P15,353.78. It was complainant Corazon Jamer who
first discovered the shortage. She informed her co-store
cashier, complainant Cristina Amortizado, about the
shortage. Amortizado also reconciled and re-counted the
sale and she also confirmed that there was a
discrepancy or a shortage of P15,353.78. They did not
immediately report the shortage to management hoping
to find the cause of the shortage but to no avail. Hence,
they had no other alternative but to report the same to
the management.
Respondents placed both petitioners under
preventive suspension for the alleged shortages.
Thereafter, respondents conducted an administrative
investigation. Finding the explanation of the
complainants to be unsatisfactory, respondent dismissed
the complainants on the alleged ground of dishonesty.
Aggrieved, complainant instituted an action for illegal
dismissal.
The Labor Arbiter rendered a decision in favor
of herein petitioners, finding that petitioners had been
illegally dismissed. Upon appeal to the NLRC, the latter
rendered the challenged decision of the Labor Arbiter
and dismissed the complaint for illegal dismissal. Hence
the present petition for certiorari.
Issue: Whether NLRC committed grave abuse of
discretion in finding that petitioners were validly
dismissed on the ground of loss of trust and confidence.
Held: At the outset, the Court notes petitioners
inexcusable failure to move for the reconsideration of
respondent NLRCs decision. Thus, the present petition
suffers from a procedural defect that warrants its
outright dismissal. While in some exceptional cases we
allowed the immediate recourse to this Court, we find
nothing herein that could warrant an exceptional
treatment to this petition. Moreover, The unquestioned
rule in this jurisdiction is that certiorari will lie only if
there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law against
the acts of respondent. In the case at bench, the plain
and adequate remedy referred to in Rule 65, Section 1,
is a motion for reconsideration of the challenged
decision and the resolution thereof.
Petitioners asseverate that respondent NLRC
committed a grave abuse of discretion when it reversed
the findings of facts of the Labor Arbiter.
In asserting that there was grave abuse of
discretion, petitioners advert to alleged variances in the
factual findings of the Labor Arbiter and the respondent
NLRC. This is inept and erroneous. Firstly, errors of
judgment, as distinguished from errors of jurisdiction,
are not within the province of a special civil action
for certiorari. Secondly, a careful reading of the records
of this case would readily show that if there is any error
by public respondent in its analysis of the facts and its
evaluation of the evidence, it is not of such a degree as
may be stigmatized as a grave abuse of discretion.
Grave abuse of discretion is committed when the
judgment is rendered in a capricious, whimsical,
arbitrary or despotic manner. An abuse of discretion
does not necessarily follow just because there is a
reversal by the NLRC of the decision of the Labor
Arbiter. Neither does the mere variance in the
evidentiary assessment of the NLRC and that of the
Labor Arbiter would, as a matter of course, so warrant
another full review of the facts. The NLRC's decision, so
long as it is not bereft of support from the records,
deserves respect from the Court.
The special civil action for certiorari is a
remedy designed for the correction of errors of
jurisdiction and not errors of judgment. The rationale for
this rule is simple. When a court exercises its jurisdiction
an error committed while so engaged does not deprive it
of the jurisdiction being exercised when the error is
committed. If it did, every error committed by a court
would deprive it of its jurisdiction and every erroneous
judgment would be a void judgment. This cannot be
allowed. The administration of justice would not
countenance such a rule. Consequently, an error of
judgment that the court may commit in the exercise of
its jurisdiction is not correctible through the original
special civil action of certiorari.
On the merits, there is substantial evidence
exists to warrant the finding that petitioners were validly
dismissed for just cause and after observance of due
process. The Supreme Court agreed with the findings of
the public respondent that the herein petitioners were
guilty of acts of dishonesty by incurring several
occurrences of shortages in the amounts
of P15,353.78, P1,000.00, P450.00 andP70.00 which
they failed to turnover and account for/and in behalf of
respondent Isetann. The failure of petitioners to report
the aforequoted shortages and overages to management
as soon as they arose resulted in the breach of the
fiduciary trust reposed in them by respondent company,
thereby causing the latter to lose confidence in them.
This warrants their dismissal.
The NLRC, therefore, did not act with grave
abuse of discretion in declaring that petitioners were
Page 168
Civil Procedure
ESGUERRA NOTES
legally dismissed from employment. The failure of
petitioners to report to management the aforementioned
irregularities constitute fraud or willful breach of the
trust reposed in them by their employer or duly
authorized representative one of the just causes in
terminating employment as provided for by paragraph
(c), Article 282 of the Labor Code, as amended.
Distinction between error of jurisdiction and error
of judgment
a. When court without jurisdiction and it rendered
decision, committed error of jurisdiction -
decision null and void even if correct, and
remedy is certiorari.
b. When court with jurisdiction and rendered
decision, but decision not correct, committed
error of judgment – decision valid even if
wrong, and remedy is appeal
Questions of fact cannot be raised
Day v. RTC of Zamboanga City (1990)
Facts: Petitioner Victorino Day is the registered owner
of a parcel of land in Zamboanga City. Respondent Go
Chu is the owner of a building constructed on said lot.
Petitioner asked respondent to peacefully vacate and
remove the latter’s building on the former’s lot. Due to
private respondent’s refusal to vacate the premises, on
April 17, 1982, petitioner instituted a formal complaint
against respondent with the Office of the Barangay
Chairman. As no amicable settlement could be reached,
the Barangay Chairman issued a certification that
conciliation of the dispute at the barangay level had
failed.
On January 15, 1985, petitioner again made
another demand on respondent to remove the building.
Because of respondent’s adamant and continued refusal
to vacate the disputed lot, petitioner filed with the MTC
on March 25, 1985 an action for unlawful detainer with
application for a writ of preliminary mandatory.
Petitioner did not use the former Barangay Certification
in commencing the said suit against respondent. The
MTC rendered a decision in favor of petitioner, ordering
defendant to vacate the premises and remove the
portion of his building over petitioner’s property. The
MTC considered the April 1982 certification to file action
as sufficient compliance with the provision of P.D. No.
1508 requiring prior conciliation proceedings.
Respondent filed an original action for
certiorari with the RTC. The RTC granted the petition for
certiorari, setting aside the decision of the MTC. Hence
the present petition for review assailing the decision of
the RTC.
Issue: Whether or not procedural questions or
questions of facts or substance may be entertained in a
petition for certiorari.
Held: No. The RTC has no jurisdiction in
a certiorari case to entertain procedural questions or
questions of facts or substance already passed upon by
the lower court. The barangay certificate of 1982 was
admitted and found to be sufficient by the MTC after
considering the circumstances surrounding its issuance.
This is a procedural question or a question of fact which
cannot be raised or corrected in a certiorari case, but
should be assigned as error and reviewed in the appeal
properly taken from the decision rendered by the trial
court on the merits of the case. Admissibility of
evidence is a matter that is addressed to the sound
discretion of the trial court (the MTC in this case). Such
being the case, no potent reason existed to justify
respondent RTC’s substitution of the lower court’s
judgment with its own judgment. "Questions of fact
cannot be raised in an original action for certiorari. Only
established or admitted facts can be considered." (Rubio
v. Reyes, Et Al., L-24581, May 27, 1968)
It is therefore clear that respondent court
erred in reversing the lower court’s findings regarding
the sufficiency of the Barangay Certificate of 1982. It
was an error for the respondent court to rule upon a
question of fact or procedural question already decided
by the lower court.
Furthermore, only errors of jurisdiction are
correctible by certiorari. Clearly, the only grounds which
may serve as the basis for the respondent court to raise
the writ of certiorari are lack of jurisdiction or grave
abuse of discretion by the lower court or that the said
lower court acted without or in excess of jurisdiction in
its appreciation of the barangay certification as
constituting sufficient compliance with P.D. No. 1508. In
the ejectment suit filed by petitioner against respondent,
the lower court undoubtedly acquired jurisdiction over
the subject matter and over the person of the
respondent. Thus, it cannot be said that the lower court
had no jurisdiction to render the decision set aside by
respondent court. Assuming that the lower court
committed a mistake on the merits of the case, it was in
the exercise of such jurisdiction. The error, if at all, is at
most one of judgment and not of jurisdiction, which
cannot be the object of a petition for certiorari. The
proper remedy in such case was appeal. Errors in the
application of the law and the appreciation of evidence
committed by a court after it has acquired jurisdiction
over a case, are correctible only by appeal.
Neither can it be said that the lower court
committed a grave abuse of discretion or exceeded its
jurisdiction when it appreciated the barangay
certification as sufficient compliance with P.D. 1508. In
the petition for certiorari filed by respondent before the
respondent court, he did not allege that the lower
court’s decision was outside or in excess of its
jurisdiction, or was issued in grave abuse of discretion.
Respondent merely alleged that the lower court
"erroneously" appreciated facts and evidence, issued
interlocutory orders, and appreciated the issues. He also
challenged the soundness of the decision. These do not
constitute excess of jurisdiction or grave abuse of
discretion.
Neither questions of fact nor of law entertained
Romy’s Freight Service v. Castro (2006)
Facts: In 1975, respondent Castro was hired by
respondent as a mechanic, and later as supervisor. In
1994, he suffered a stroke and had to take a leave of
absence from work. While on leave, petitioner sent him
several demand letters urging him to work. Later he
was asked to show cause why he should not be
disciplined for prolonged absence. Cruz also filed
complaints for estafa and qualified theft against him.
Because of these, Castro was constrained to file a case
for illegal dismissal against petitioner on the ground that
Page 169
Civil Procedure
ESGUERRA NOTES
Cruzs acts constituted constructive dismissal.
Respondent Veloria was hired in 1977 as a carpenter,
and later as a senior mechanic. Sometime in 1995, he
figured in an accident. He was forced to absent himself
from work to undergo recuperation. During his absence,
he received several letters from Cruz. One letter
required him to explain the loss of several tools, another
ordered him to pay his loan and still another required
him to explain his absences. He was later charged for
qualified theft of the missing tools. Because of
petitioner’s acts against him, Veloria joined Castro in
filing a case for illegal constructive dismissal against
petitioner.
The labor arbiter ruled that petitioner was
guilty of illegal dismissal. Upon appeal to the NLRC, the
NLRC set aside the labor arbiter’s ruling. Finding
respondents guilty of abandonment of work, the NLRC
dismissed their complaint for illegal dismissal.
Aggrieved, respondents filed a petition for certiorari with
the Court of Appeals (CA). The CA granted the petition
and reinstated the decision of the labor arbiter. Hence
the present petition for certiorari, faulting the CA for
reversing the decision of the NLRC.
Issue: Whether or not the issues of illegal dismissal,
abandonment and entitlement to backwages and
benefits are proper subjects of a petition for certiorari.
Held: No. The issues raised by petitioner, i.e., whether
respondents were illegally dismissed (as the CA and the
labor arbiter ruled) or abandoned their work (as the
NLRC held) and whether they were entitled
to backwages, unpaid benefits, separation pay and
attorneys fees, are not proper subjects of a petition for
certiorari. They involve an inquiry into factual matters.
The Supreme Court is not a trier of facts, more
so in the consideration of the extraordinary writ of
certiorari where neither questions of fact nor of law are
entertained, but only questions of lack or excess of
jurisdiction or grave abuse of discretion. The sole object
of the writ is to correct errors of jurisdiction or grave
abuse of discretion. The phrase grave abuse of discretion
has a precise meaning in law, denoting abuse of
discretion too patent and gross as to amount to an
evasion of a positive duty, or a virtual refusal to perform
the duty enjoined or act in contemplation of law, or
where the power is exercised in an arbitrary and
despotic manner by reason of passion and personal
hostility. It does not encompass an error of law. Nor
does it include a mistake in the appreciation of the
contending parties respective evidence or the evaluation
of their relative weight. The Court cannot be tasked to
go over the proofs presented by the parties and analyze,
assess and weigh them all over again to ascertain if the
trial court or quasi-judicial agency and the appellate
court were correct in according superior credit to this or
that piece of evidence of one party or the other. The
sole office of a writ of certiorari is the correction of
errors of jurisdiction including the commission of grave
abuse of discretion amounting to lack of jurisdiction, and
does not include the review of public respondents
evaluation of the evidence and the factual findings based
thereon. Therefore, the present petition for certiorari
fails insofar as it questions the affirmation by the CA of
the factual finding of the labor arbiter that private
respondents were illegally dismissed, entitling them to
an award of backwages, unpaid benefits, separation pay
and attorney’s fees.
Only issue involved is jurisdiction, either want of
or excess thereof
Gerardo vs. De la Pena (1990)
Facts: Angel Gerardo owned three parcels of lots.
Filomina, Berta, and Santiago were his children.
Filomina and Berta were both survived by their
respective children, herein respondents. Santiago was
also survived by his children, herein petitioners.
Before the cadastral hearing involving the
subject parcels of lots could commence, Angel Gerardo
died. Subsequently, Santiago filed the corresponding
answers for the three lots in question. It was alleged in
said answers that he (Santiago) was the heir of Angel
Gerardo and that said three lots were being claimed by
him as his inheritance from his late father, Angel
Gerardo. Consequently, after hearing, the lots were
registered in Santiago’s name.
About sixteen (16) years later, or on April 28,
1960, respondents instituted an action for ownership,
partition and accounting against the petitioners. The
case, which was docketed as Civil Case No. 3191-11,
prayed for the cancellation of title in the name of
Santiago. The trial court rendered judgment in favor of
respondents, declaring all the petitioners and
respondents as legal heirs of Angel Gerardo and co-
owners of the subject lots. Petitioners elevated the case
to the Court of Appeals (CA) which dismissed the same.
Thus, the judgment became final and executory on
October 11, 1965.
Several years later, or on March 18, 1982,
petitioners filed a complaint for reconveyance of
properties, annulment of judgment and damages in the
lower court against respondents. The lower court
dismissed the complaint on the ground of res judicata.
According to the lower court, all the elements or res
judicata are present: (1) the judgment in Civil Case No.
3191-II became final on October 11, 1965; (2) the court
in taking cognizance of the case had jurisdiction over the
subject matter and the parties; (3) the judgment was
rendered on the merits of the case; and (4) in both
cases, the same parties and properties and the same
causes of action are involved.
Hence, petitioners elevated the case to the
Supreme Court by way of a petition for certiorari.
Issue: Whether or not the lower court committed a
grave abuse of discretion when it ordered the dismissal
of the complaint on the ground of res judicata.
Held: No. The Supreme Court possesses no authority to
rule upon non-jurisdictional issues in a
certiorari proceeding. The only question involved
in Certiorari is jurisdiction; either want of or in excess
thereof. In the case at bar, respondent Judge correctly
dismissed the complaint in based on res judicata
considering the prior judgment in Civil Case No. 3191-
11. There is no question that petitioners have no right
at all to claim exclusive ownership of the properties in
question. Ownership thereof having been settled in favor
of both herein petitioners and private respondents as co-
owners of the subject properties in Civil Case No. 3191-
11 which constitutes res judicata to Civil Case No. 7590.
Grave abuse of discretion means such
capricious and whimsical exercise of judgment as is
Page 170
Civil Procedure
ESGUERRA NOTES
equivalent to lack of jurisdiction. The abuse of discretion
must be grave as where the power is exercised in an
arbitrary or despotic manner by reason of passion or
personal hostility and must be so patent and gross as to
amount to an evasion of positive duty enjoined by or to
act at all in contemplation of law. Respondent judge
who dismisses a complaint on the ground of res judicata
does not commit grave abuse of discretion.
Distinction between certiorari under Rule 45 as a
mode of appeal and certiorari under Rule 65 as a
special civil action
Banco Filipino Savings and Mortgage Bank vs. CA
(2000)
Facts: The instant case originated from the sale by
Banco Filipino to Tala Realty of four (4) lots in Iloilo City,
covered and described in the aforementioned TCT Nos.
62273 and 62274, for two million one hundred ten
thousand pesos (P2,110,000.00). Tala Realty then
leased them back to Banco Filipino for a monthly rental
of twenty one thousand pesos (P21,000.00) /for a
period of twenty (20) years and renewable for another
twenty (20) years. The lease contracts of the other
branch sites sold to Tala Realty have substantially
similar terms and conditions, except for the amount of
the rent.
Banco Filipino alleges that a trust was created
by virtue of the above transactions. Tala Realty was
allegedly established to serve as a corporate medium to
warehouse the legal title of the said properties for the
beneficial interest of Banco Filipino and to purchase
properties to be held in trust for the latter.
However, sometime in August 1992, Tala
Realty demanded payment of increased rentals, deposits
and goodwill from Banco Filipino, with a threat of
ejectment in case of failure to comply thereto. On April
20, 1994, some stockholders of Banco Filipino filed a
derivative suit against Tala Realty before the SEC for the
reconveyance of the properties sold by the former to the
latter. However, on March 6, 1995, the SEC dismissed
the case on the ground of lack of jurisdiction.
Due to Banco Filipinos failure to comply with
Tala Realtys terms, the latter carried out its threat by
filing numerous ejectment suits against Banco Filipino.
This prompted Banco Filipino to file, on August 16, 1995,
an action for recovery of real properties before the
Regional Trial Court of Iloilo, Branch 28, on the ground
of breach of trust. Incidentally, during the period from
August to September 1995, Banco Filipino also filed
sixteen (16) other complaints for recovery of real
properties which it had previously sold to Tala Realty.
These complaints, including the one filed in the
Regional Trial Court of Iloilo City, Branch 28, were
uniformly worded in their material allegations.
As regards Banco Filipinos complaint in the
Regional Trial Court of Iloilo City, Tala Realty filed on
October 9, 1995 a motion to dismiss on the following
grounds: (1) forum-shopping; (2) litis pendentia; (3)
pari delicto; (4) failure to implead indispensable parties;
and (5) failure to state a cause of action. On the same
date, private repondents Pilar D. Ongking, Elizabeth H.
Palma, Dolly W. Lim and Rubencito del Mundo filed a
separate motion to dismiss in the same case on the
following grounds: (1) lack of jurisdiction over the
subject matter; (2) litis pendentia; and (3) failure to
state a cause of action. Likewise, on November 10,
1995, private respondent Nancy L. Ty filed a separate
motion to dismiss, alleging the same grounds as those
invoked by private respondents Ongking, et. al.
These motions to dismiss alleged, among
others, that aside from the said suit before the Regional
Trial Court of Iloilo City, Branch 28, other suits involving
certain Quezon City, Lucena City, Malolos and Manila
branches of Banco Filipino are also pending in other
Regional Trial Courts.
Banco Filipino filed separate oppositions, dated
October 14, 1995, October 31, 1995 and November 21,
1995 respectively, to the motions to dismiss. After a
protracted exchange of pleadings, the trial court
dismissed the complaint on April 22, 1996.
On June 27, 1996, the trial court denied Banco
Filipinos motion for reconsideration. Banco Filipino
received a copy of said order of denial on July 5, 1996
but instead of filing an appeal, it filed, on July 24, 1996,
a petition for certiorari under Rule 65 before the Court of
Appeals. Banco Filipino alleged in its petition that the
trial courts decision was issued with grave abuse of
discretion because it did not comply with the
constitutional mandate on the form of decisions.
However, the Court of Appeals dismissed
Banco Filipinos petition on the ground, among others,
that the "[p]etitioners recourse to Rule 65 of the Revised
Rules of Court is patently malapropos." It reiterated the
rule that a special civil action for certiorari may be
resorted to only when there is no appeal, nor any plain,
speedy and adequate remedy in the ordinary course of
law. Banco Filipinos failure to appeal by writ of error
within the reglementary period and its belated recourse
to a petition for certiorari under Rule 65 was interpreted
by the Court of Appeals as a desperate attempt by
Banco Filipino to resurrect what was otherwise already a
lost appeal. Furthermore, the Court of Appeals debunked
Banco Filipinos theory that the assailed order of the RTC
did not comply with the substantive requirements of the
Constitution, and was thus, rendered with grave abuse
of discretion.
On December 28, 1996, Banco Filipino received
a copy of the Court of Appeals decision dismissing its
petition thereby prompting the latter to file a motion for
reconsideration on January 10, 1997. The Court of
Appeals denied the said motion for reconsideration on
December 19, 1997 in a resolution, a copy of which was
received by Banco Filipino on January 7, 1998. Banco
Filipino then filed with this Court its subject petition for
certiorari under Rule 65 of the Revised Rules of Court on
March 9, 1998.
Held: Without need of delving into the merits of the
case, this Court hereby dismisses the instant petition.
For in filing a special civil action for certiorari instead of
an ordinary appeal before this Court, Banco Filipino
violated basic tenets of remedial law that merited the
dismissal of its petition.
A petition for certiorari under Rule 65 is proper
if a tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of
jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction and there is no appeal,
Page 171
Civil Procedure
ESGUERRA NOTES
or any plain, speedy and adequate remedy in the
ordinary course of law.
We have said time and again that for the
extraordinary remedy of certiorari to lie by reason of
grave abuse of discretion, the abuse of discretion, must
be so patent and gross as to amount to an evasion of a
positive duty, or a virtual refusal to perform the duty
enjoined or act in contemplation of law, or where the
power is exercised in an arbitrary and despotic manner
by reason of passion and personal hostility.
The availability to Banco Filipino of the remedy
of a petition for review from the decision of the Court of
Appeals effectively foreclosed its right to resort to a
petition for certiorari. This Court has often enough
reminded members of the bench and bar that a special
civil action for certiorari under Rule 65 lies only when
there is no appeal nor plain, speedy and adequate
remedy in the ordinary course of law. Certiorari is not
allowed when a party to a case fails to appeal a
judgment despite the availability of that remedy. The
remedies of appeal and certiorari are mutually exclusive
and not alternative or successive.
The antithetic character of the remedies of
appeal and certiorari has been generally observed by
this Court save only in those rare instances where
appeal is satisfactorily shown to be an inadequate
remedy. In the case at bar, Banco Filipino has failed to
show any valid reason why the issues raised in its
petition for certiorari could not have been raised on
appeal. To justify its resort to a special civil action for
certiorari under Rule 65, it erroneously claims that an
appeal is not a speedy and adequate remedy because
further delay in the disposition of this case would
effectively deprive Banco Filipino of the full use and
enjoyment of its properties. However, the further delay
that would inadvertently result from the dismissal of the
instant petition is one purely of Banco Filipinos own
doing. We cannot countenance an intentional departure
from established rules of procedure simply to
accommodate a case that has long been pending in the
courts of law because of the partys own fault or
negligence.
Certiorari cannot be used as a substitute for
the lapsed or lost remedy of appeal. Banco Filipinos
recourse to a special civil action for certiorari was borne
not out of the conviction that grave abuse of discretion
attended the resolution of its petition before the Court of
Appeals but simply because of its failure to file a timely
appeal to this Court. This observation is shared by the
Court of Appeals, which was quick to point out that
when Banco Filipino filed its petition for certiorari
assailing the RTC order, the reglementary period for
filing a petition for review before the Court of Appeals
had already lapsed.
It is true that this Court may treat a petition
for certiorari as having been filed under Rule 45 to serve
the higher interest of justice, but not when the petition
is filed well beyond the reglementary period for filing a
petition for review and without offering any reason
therefor.
No appeal, nor any plain, speedy and adequate
remedy
General rule, if appeal available, no certiorari
Fajardo vs. Bautista (1994)
Facts: Private respondents Isabelo Jareño and Purita
Jareño (hereinafter JAREÑOS) are the owners and
developers of a subdivision known as the Calamba
Central Compound. On various dates, they as SELLERS,
and the petitioners as BUYERS signed separate
contracts, each designated as a CONTRACT TO SELL,
under which, for the considerations therein stated, they
bound themselves to sell to the petitioners the lots
subject thereof, and after the latter shall have paid the
purchase price and interest, to execute in favor of the
petitioners the corresponding deeds of transfer of title,
free from any lien or encumbrance except those
expressly provided for in the Contract to Sell.
On the other hand, private respondent
Fernando Realty and Development Corporation
(hereinafter FERNANDO) as SELLER, and petitioner
Emily Yu Fajardo as BUYER signed on 22 February 1985
a CONTRACT TO SELL under which for the
considerations therein stated, FERNANDO agreed to sell
to Fajardo Lot No. 10, Block No. 3, also located at the
Calamba Central Compound Subdivision, and upon full
payment of the agreed price and interest thereon, to
execute a deed of absolute sale in favor of Fajardo.
It appears, however, that on 18 October 1986,
the JAREÑOS sold the aforesaid lots subject of the
different contracts to sell to private respondent Ruben
Habacon (hereinafter HABACON) under separate
documents denominated as "Kasulatan ng Bilihan." On
18 February 1991, HABACON caused the cancellation of
the certificates of title covering the said lots and the
issuance of new ones in his name.
When the petitioners learned of these, they
filed on 21 June 1991 separate complaints with the court
a quo for annulment of the sales in favor of HABACON
and of the new certificates of title issued to him, for
reinstatement of the certificates of title cancelled by
those issued to HABACON, and for accounting and
damages. The complaints were docketed as Civil Cases
Nos. 1683-91-C, 11 1684-91-C, 12 1685-91-C, 13
1686-91-C, 14 and 1688-91-C, 15 and were assigned to
Branch 37 of the Regional Trial Court of Calamba.
On 9 August 1991, HABACON filed a motion to
dismiss the complaints on the ground that the plaintiffs
(petitioners herein) have no legal capacity to sue
because they were not parties to the "BILIHAN."
In its Order of 4 September 1991, 20 the trial
court dismissed the aforesaid civil cases for lack of
jurisdiction.
The petitioners filed a motion for the
reconsideration of the order, but the trial court denied
this in its Order of 20 September 1991. 22 It ruled that
while HABACON may not be the developer, the JAREÑOS
are, and by selling the same lots to HABACON after they
were previously sold to different parties, the JAREÑOS
may have committed an "unsound business practice."
Moreover, it ruled that Section 19(2) of B.P. Blg. 129,
being a general law, should yield to P.D. No. 957, as
amended by P.D. No. 1344, which is a special law.
Page 172
Civil Procedure
ESGUERRA NOTES
On 24 December 1991, the petitioners filed the
instant special civil action for certiorari to annul the 4
September 1991 and 20 September 1991 Orders of the
trial court on the ground that the judge acted with grave
abuse of discretion amounting to lack of jurisdiction in
dismissing their complaints and that they have no other
plain, speedy, and adequate remedy in the ordinary
course of law. The petitioners maintain that the trial
court has jurisdiction over their complaints.
In the Resolution of 18 November 1991, 23 we
required the respondents to comment on the petition.
Private respondent HABACON filed his comment and
opposition on 27 August 1992 24 while public
respondent Cesar S. Reyes filed his comment on 24
August 1993. 25 Both respondents rely on our
pronouncement in Solid Homes, Inc. vs. Payawal and
echo the ruling of the trial court in the questioned
orders. The copy of the resolution sent to the JAREÑOS
was returned unserved and in the Resolution of 21 July
1993, we considered it as served on them. As required,
the petitioners filed a reply to the comment. On 8
November 1993, we resolved to give due course to the
petition and required the parties to submit their
memoranda, which the petitioners complied with on 29
December 1993 and the private respondents, on 28
March 1994.
Held: The remedies of appeal and certiorari are
mutually exclusive and not alternative or successive.
Accordingly, although the special civil action of certiorari
is not proper when an ordinary appeal is available, it
may be granted where it is shown that the appeal would
be inadequate, slow, insufficient, and will not promptly
relieve a party from the injurious effects of the order
complained of, or where appeal is inadequate and
ineffectual. Nevertheless, certiorari cannot be a
substitute for the lost or lapsed remedy of appeal, where
such loss is occasioned by the petitioner's own neglect
or error in the choice of remedies.
The petitioners admit that they received a copy
of the trial court's order dismissing their complaints on 4
October 1991. The instant petition was filed on 24
October 1991 or beyond the 15-day period to appeal
from the order. The petitioners have not even attempted
to explain why they were unable to appeal from the
challenged order within the reglementary period. This
civil action then was resorted to as a substitute for the
lost or lapsed remedy of appeal, and since none of the
exceptions to the rigid rule barring substitution of
remedies was alleged to exist in this petition, or even
indicated by the pleadings, this petition must be
dismissed.
Exceptions
(1) May be availed of even when appeal is available or
period to appeal has expired
Lansang v. CA (1990)
Facts: Private respondent Salangsang filed a complaint
for damages arising from a vehicular accident against
Spouses Lansang (the “petitioners”) before the RTC of
South Cotabato. During trial, Salangsang was able to
present his evidence. Thereafter, the court issued an
order resetting the hearing. On the date of hearing,
neither petitioners nor their counsel appeared. As such,
on the same day, the Court submitted the case for
resolution. Subsequently, the RTC rendered judgment in
favor of Salangsang. From said judgment, petitioners
filed a “motion for reconsideration and/or to set aside
order or decision and to allow them to present their
evidence.” Petitioners’ motion was, however, denied.
Thereafter, petitioners filed their notice of
appeal with the RTC. The RTC approved the appeal and
ordered the records of the case to be forwarded with the
appellate court. Later on, petitioners filed a Petition for
Certiorari, wherein they alleged that “they already
perfected their appeal and that they are not abandoning
it, but the same is not an adequate, speedy and plain
remedy due to the P250.00 daily penalty in the RTC’s
award.” Subsequently, the appellate court dismissed
petitioners’ Petition for Certiorari.
According to the CA, petitioners, by filing a
petition for certiorari, in effect abandoned their appeal
and that the perfected appeal is inconsistent with the
remedy of certiorari. Furthermore, the CA held that
petitioners cannot be permitted to first resort to appeal
and then shift the remedy to certiorari.
Issue: Is a perfected appeal inconsistent with the
remedy of certiorari?
Held: No. The purpose of an appeal is to bring up for
review a final judgment or order of the lower court. The
remedy of certiorari is to correct certain acts of any
tribunal, board or officer exercising judicial functions
performed without or in excess of its or his jurisdiction,
or with grave abuse of discretion and there is no appeal
nor any plain, speedy and adequate remedy in the
ordinary course of law. A certiorari proceeding may be
instituted during the pendency of a case or even after
judgment.
If after judgment, the petition for certiorari is
availed of when appeal is plain, speedy and adequate
remedy, then the petition must fail as certiorari may not
be resorted to as a substitute for appeal much less for a
lost one. In such a case, the right to appeal is
abandoned. However, after a judgment had been
rendered and an appeal therefrom had been perfected, a
petition for certiorari relating to certain incidents therein
may prosper where the appeal does not appear to be
plain, speedy and adequate remedy. Hence, appeal and
certiorari are not remedies that exclude each other.
Indeed, there are instances when this Court
relaxed the application of Rule 65 on certiorari and
allowed the writ to issue even while appeal was available
in the interest of justice, or due to the dictates of public
welfare and for the advancement of public policy.
In this case, after judgment was rendered,
petitioners filed a motion for reconsideration which is in
effect a motion for the trial. The failure of counsel and
petitioners to appear on November 8, 1985 in order to
present its evidence was duly explained and which may
be considered excusable. The courts are called upon to
be liberal in the assessment of the non-appearance of
counsel or the party if only to promote the greater
interest of justice.
While it appears that the vehicle of petitioners
hit the car of private respondent while parked it is
contended by petitioners that it was parked in a
prohibited zone. Assuming the petitioners to be at fault,
they contend the additional damage of P250.00 per day
is unconscionable in addition to the actual damage to
Page 173
Civil Procedure
ESGUERRA NOTES
the car of P19,500.00 and P10,000.00 attorney's fees
and expenses of litigation. They estimate the damage
awarded can run up to the amount of P600,000.00.
These circumstances justify the grant to
petitioners of another day in court. It is a pity that this
case has been pending in court for so long. But this is
what happens when an overly strict and narrow
interpretation of the rules is undertaken. The liberal
application of the rules must always be in the mind of
the courts.
(2) When appeal not adequate, or equally beneficial,
speedy or adequate
Jaca v. Davao Lumber Co. (1982)
Facts: Urbano and Bonifacio Jaca (the “petitioners”)
filed a complaint for Accounting, Return of Price
Differentials and Damages against Davao Lumber (the
“respondent”). The trial court, in resolving the case,
rendered judgment in favor of respondent. Thereafter,
petitioners filed an appeal. Meanwhile, respondent filed
a motion for execution pending appeal, which was
granted by the trial court. Subsequently, petitioners filed
a motion for reconsideration of the order granting
respondent’s motion, but the same was denied. As such,
petitioners filed a petition for certiorari, contending that
the Judge acted in excess of jurisdiction and/or with
grave abuse of discretion in issuing the order granting
execution pending appeal, and denying their motion for
reconsideration. In its answer to petitioners’ petition for
certiorari, respondent contends that petitioners, having
availed of the remedy of appeal are barred from filing a
petition for certiorari.
Issue: Are petitioners barred from filing a petition for
certiorari since they already availed of the remedy of
appeal?
Held: No. Although Section 1, Rule 65 of the Rules of
Court provides that the special civil action of certiorari
may only be invoked when “there is no appeal, nor plain
speedy and adequate remedy in the course of law,” the
rule is not without exception. The availability of the
ordinary course of appeal does not constitute sufficient
ground to prevent a party from making used of the
extraordinary remedy of certiorari where the appeal is
not an adequate remedy or equally beneficial, speedy
and sufficient. It is the inadequacy—not the mere
absence—of all other legal remedies and the danger of
failure of justice without the writ, that must usually
determine the propriety of certiorari.
In the case at bar, the remedy of appeal is inadequate.
It will not immediately relieve petitioners from the
injurious effect of the order granting execution. The slow
and inexpensive remedy of appeal will not prevent
respondent judge from executing his decision requiring
petitioners to pay the huge amount of P867,887.52.
Moreover, to dismiss the petition on the ground that
petitioner has already availed of the remedy of appeal
will only aggravate the patent injustice already inflicted
on petitioners.
Motion for reconsideration required; exceptions
Settled is the rule the rule that, except in some
recognized situations, the filing of a motion for
reconsideration is a condition sine qua non to the filing
of a petition for certiorari to allow the court an
opportunity to correct its imputed errors. The filing of a
motion for reconsideration before a resort to certiorari is
intended to afford the public respondent an opportunity
to correct any actual or fancied error attributed to it by
way of re-examination of the legal and factual aspects of
the case.
Some of the recognized exceptions where the special
civil action for certiorari will lie even without first
availing of a motion for reconsideration include:
a. The order is a patent nullity, as where the
court a quo has no jurisdiction;
b. The questions raised in the certiorari
proceeding have been duly raised and passed
upon by the lower court or are the same as
those raised and passed upon in the lower
court;
c. There is an urgent necessity for the resolution
of the question and any further delay would
prejudice the interests of the government or of
the petitioner;
d. The subject matter of the action is perishable;
e. Under the circumstances, a motion for
reconsideration would be useless;
f. Petitioner was deprived of due process and
there is an extreme urgency for relief;
g. In a criminal case, relief from order of arrest is
urgent and the granting of such relief by the
trial court is improbable;
h. The proceedings were done ex parte or in
which the petitioner had no opportunity to
object;
i. Where the issue raised is one purely of law; or
j. Where public interest is involved.
Tan v. CA & DPG Development (1997)
Facts: Tan was the lessee of a piece of property in
Sampaloc, Manila when DPG Development (the
“respondent”) acquired ownership over said property
from one Manuel Gonzales. Subsequently, respondent
filed an ejectment suit for non-payment of rentals
against Vermont Packaging, which was managed by Tan.
During the pendency of the ejectment suit, Tan
filed a complaint for the cancellation/annulment of title.
For respondent’s failure to file an answer, Tan moved
that respondent be declared in default. Tan’s said
motion was granted and thereafter, the trial court
rendered judgment in Tan’s favor. From the trial court’s
judgment, respondents filed a motion for new trial,
which was denied by the trial court. Thereafter,
respondents filed a petition for certiorari, which was
granted by the CA.
Issue: Did the CA err in not dismissing respondent’s
petition for certiorari considering that no motion for
reconsideration was filed before said petition was
resorted to?
Held: No. The special civil action of certiorari will not lie
unless a motion for reconsideration is first filed before
the respondent court to allow it an opportunity to correct
Page 174
Civil Procedure
ESGUERRA NOTES
its errors. However, this rule admits of certain
recognized exceptions such as (a) where the order is a
patent nullity, as where the Court a quo had no
jurisdiction; (b) where the questions raised in the
certiorari proceeding have been duly raised and passed
upon by the lower court, or are the same as those raised
and passed upon in the lower court; (c) where there is
an urgent necessity for the resolution of the question
and any further delay would prejudice the interests of
the Government or of the petitioner or the subject
matter of the action is perishable; (d) where, under the
circumstances, a motion for reconsideration would be
useless; (e) where petitioner was deprived of due
process and there is extreme urgency for relief; (f)
where, in a criminal case, relief from an order of arrest
is urgent and the granting of such relief by the trial
Court is improbable; (g) where the proceedings in the
lower court are a nullity for lack of due process; (h)
where the proceedings was ex parte or in which the
petitioner had no opportunity to object; and (i) where
the issue raised is one purely of law or where public
interest is involved. It is exceptive circumstance (b) that
justified DPGs non-filing of a motion for reconsideration,
inasmuch as DPGs petition for certiorari before the CA
involved a similar issue or question passed upon by the
trial court in its November 23, 1990 Order, i.e., the
propriety of the motion for new trial filed by DPGs new
counsel (Atty. Formoso).
It must also be stressed that what is
determinative of the propriety of certiorari is the danger
of failure of justice without the writ, not the mere
absence of all other legal remedies. Thus, even when
appeal is available and is the proper remedy, a writ of
certiorari has been allowed when the orders of the lower
court were issued either in excess of or without
jurisdiction. Certiorari may also be availed of where an
appeal would be slow, inadequate and insufficient and
that to strictly observe the general rule would result in a
miscarriage of justice. This is especially true when the
petition, such as DPGs certiorari petition before the CA,
appears to be meritorious and the trial judge indeed
seems to have committed grave abuse of discretion.
Period for filing (Sec. 4)
Rule 65, Section 4. When and where petition filed. —
The petition shall be filed not later than sixty (60) days
from notice of the judgment, order or resolution. In case
a motion for reconsideration or new trial is timely filed,
whether such motion is required or not, the sixty (60)
day period shall be counted from notice of the denial of
said motion.
The petition shall be filed in the Supreme Court or, if it
relates to the acts or omissions of a lower court or of a
corporation, board, officer or person, in the Regional
Trial Court exercising jurisdiction over the territorial area
as defined by the Supreme Court. It may also be filed in
the Court of Appeals whether or not the same is in aid of
its appellate jurisdiction, or in the Sandiganbayan if it is
in aid of its appellate jurisdiction. If it involves the acts
or omissions of a quasi-judicial agency, unless otherwise
provided by law or these Rules, the petition shall be filed
in and cognizable only by the Court of Appeals.
No extension of time to file the petition shall be granted
except for compelling reason and in no case exceeding
fifteen (15) days. (4a) (Bar Matter No. 803, 21 July
1998; A.M. No. 00-2-03-SC)
DEPOSITIONS
Rule 23
Depositions Pending Action
Deposition – definition and purpose.
People vs. Webb (1999)
Facts: Respondent Hubert Jeffrey P. Webb (“Webb”) is
one of the accused in Criminal Case No. 95-404 for Rape
with Homicide. During the course of the proceedings in
the trial court, respondent filed on May 2, 1997, a
Motion To Take Testimony By Oral Deposition1 praying
that Webb be allowed to take the testimonies of five (5)
citizens and residents of the United States before the
proper consular officer of the Philippines in Washington
D.C. and California, as the case may be. Webb alleged
that the taking of the oral depositions of the
aforementioned individuals whose testimonies are
allegedly "material and indispensable" to establish his
innocence of the crime charged is sanctioned by Section
4, Rule 24 of the Revised Rules of Court.
The prosecution thereafter filed an opposition
to the said motion averring that: 1.] Rule 24, Section 4
of the Rules of Court, contrary to the representation of
respondent-accused, has no application in criminal
cases; 2.] Rule 119, Section 4 of the Rules of Court on
Criminal Procedure, being a mode of discovery, only
provides for conditional examination of witnesses for the
accused before trial not during trial; 3.] Rule 19, Section
5 of the Rules of Court on Criminal Procedure does not
sanction the conditional examination of witnesses for the
accused/defense outside Philippine Jurisdiction.
In an Order dated 11 June 1997, the trial court
denied the motion of respondent on the ground that the
same is not allowed by Section 4, Rule 24 and Sections
4 and 5 of Rule 119 of the Revised Rules of Court.
Webb’s Motion for Reoncisderation having been denied,
he elevated his cause to the Court of Appeals by way of
a petition for certiorari.
The Court of Appeals granted Webb’s Petition
for Certiorari, and set aside and annulled the trial court’s
Order dated 11 June 1997. Thus, the People challenged
the Court of Appeals’ Decision before the Supreme
Court.
Issue: Whether or not the Court of Appeals correctly set
aside the trial court’s Order dated 11 June 1997,
denying Webb’s motion to take testimony by oral
depositions in the United States which would be used in
the criminal case before her Court.
Held: No. As defined, a deposition is —
The testimony of a witness taken upon oral
question or written interrogatories, not in open court,
but in pursuance of a commission to take testimony
issued by court, or under a general law or court rule on
the subject, and reduce to writing and duly
authenticated, and intended to be used in preparation
and upon the trial of a civil or a criminal prosecution. A
pretrial discovery device by which one party (through his
or her attorney) ask oral questions of the other party or
of a witness for the other party.
Page 175
Civil Procedure
ESGUERRA NOTES
The person who is deposed is called the
deponent. The deposition is conducted under oath
outside of the court room, usually in one of the lawyer's
offices. A transcript — word for word account — is made
of the deposition. Testimony of [a] witness, taken in
writing, under oath or affirmation, before some judicial
officer in answer to questions or interrogatories . . . and
the purposes of taking depositions are to: (a) give
greater assistance to the parties in ascertaining the
truth and in checking and preventing perjury; (b)
provide an effective means of detecting and exposing
false, fraudulent claims and defenses; (c) make
available in a simple, convenient and inexpensive way,
facts which otherwise could not be proved except with
great difficulty; (d) educate the parties in advance of
trial as to the real value of their claims and defenses
thereby encouraging settlements; (e) expedite litigation;
(f) safeguard against surprise; (g) prevent delay; (h)
Simplify and narrow the issues; and (i) expedite and
facilitate both preparation and trial.
As can be gleaned from the foregoing, a
deposition, in keeping with its nature as a mode of
discovery, should be taken before and not during trial.
In fact, rules on criminal practice — particularly on the
defense of alibi, which is respondent's main defense in
the criminal proceedings against him in the court below
— states that when a person intends to rely on such a
defense, that person must move for the taking of the
deposition of his witnesses within the time provided for
filing a pre-trial motion.
It needs to be stressed that the only reason of
respondent for seeking the deposition of the foreign
witnesses is "to foreclose any objection and/or rejection
of, as the case may be, the admissibility of Defense
Exhibits "218" and "219"." This issue has, however, long
been rendered moot and academic by the admission of
the aforementioned documentary exhibits by the trial
court in its order dated 10 July 1998.
The Supreme Court ruled that the factual
circumstances of this case only serves to underscore the
immutable fact that the depositions proposed to be
taken from the five U.S. based witnesses would be
merely corroborative or cumulative in nature and in
denying respondent's motion to take them, the trial
court was but exercising its judgment on what it
perceived to be a superfluous exercise on the belief that
the introduction thereof will not reasonably add to the
persuasiveness of the evidence already on record.
Depositions pending action, when may be taken.
1. 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.
2. 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.
3. The deposition of a person confined in prison may
be taken only by leave of court on such terms as
the court prescribes.
Dasmarinas Garments, Inc. vs. Reyes (1993)
Facts: The American President Lines, Ltd. (“APL”) sued
Dasmariñas Garments, Inc. to recover the sum of US
$53,228.45 as well as an amount equivalent to twenty-
five percent (25%) thereof as attorney's fees and
litigation expenses.
In one of the hearings for the presentation of
its witnesses, APL filed a motion praying that it intended
to take the depositions of H. Lee and Yeong Fang Yeh in
Taipei, Taiwan and prayed that for this purpose, a
"commission or letters rogatory be issued addressed to
the consul, vice-consul or consular agent of the Republic
of the Philippines in Taipei . . . " Five (5) days later APL
filed an amended motion stating that since the Philippine
Government has no consulate office in Taiwan in view of
its "one China policy," there being in lieu thereof an
office set up by the President "presently occupied by
Director Joaquin Roces which is the Asia Exchange
Center, Inc.," it was necessary — and it therefore
prayed — "that commission or letters rogatory be issued
addressed to Director Joaquin Roces, Executive Director,
Asian Executive Exchange Center, Inc., Room 901, 112
Chunghsiao, E. Road, Section 1, Taipe, Republic of
China, to hear and take the oral deposition of the
aforenamed persons
The motion was opposed by Dasmariñas. It
contended that (a) the motion was "fatally defective in
that it does not seek . . . that a foreign court examine a
person within its jurisdiction;" (b) issuance of letters
rogatory was unnecessary because the witnesses "can
be examined before the Philippine Court;" and (c) the
Rules of Court "expressly require that the testimony of a
witness must be taken orally in open court and not by
deposition."
The trial court granted APL’s Motion. Motion for
Reconsideration having been denied, Dasmarinas
instituted a special civil action of certiorari before the
Court of Appeals, which likewise denied said petition.
Issue: Whether or not there was grave abuse of
discretion in granting APL’s motion to take testimonies
of the Taiwanese witnesses.
Held: No. Depositions are chiefly a mode of discovery.
They are intended as a means to compel disclosure of
facts resting in the knowledge of a party or other person
which are relevant in some suit or proceeding in court.
Depositions, and the other modes of discovery
(interrogatories to parties; requests for admission by
adverse party; production or inspection of documents or
things; physical and mental examination of persons) are
meant to enable a party to learn all the material and
relevant facts, not only known to him and his witnesses
but also those known to the adverse party and the
latter's own witnesses. In fine, the object of discovery is
to make it possible for all the parties to a case to learn
all the material and relevant facts, from whoever may
have knowledge thereof, to the end that their pleadings
or motions may not suffer from inadequacy of factual
foundation, and all the relevant facts may be clearly and
completely laid before the Court, without omission or
suppression.
Depositions are principally made available by
law to the parties as a means of informing themselves of
all the relevant facts; they are not therefore generally
meant to be a substitute for the actual testimony in
Page 176
Civil Procedure
ESGUERRA NOTES
open court of a party or witness. The deponent must as
a rule be presented for oral examination in open court at
the trial or hearing. This is a requirement of the rules of
evidence. Section 1, Rule 132 of the Rules of Court
provides:
Sec. 1. Examination to be done in open court.
— The examination of witnesses presented in a trial or
hearing shall be done in open court, and under oath or
affirmation. Unless the witness is incapacitated to speak,
or the question calls for a different mode of answer, the
answers of the witness shall be given orally.
Indeed, any deposition offered to prove the
facts therein set out during a trial or hearing, in lieu of
the actual oral testimony of the deponent in open court,
may be opposed and excluded on the ground that it is
hearsay; the party against whom it is offered has no
opportunity to cross-examine the deponent at the time
that his testimony is offered. It matters not that that
opportunity for cross-examination was afforded during
the taking of the deposition; for normally, the
opportunity for cross-examination must be accorded a
party at the time that the testimonial evidence is
actually presented against him during the trial or
hearing.
However, depositions may be used without the
deponent being actually called to the witness stand by
the proponent, under certain conditions and for certain
limited purposes. These exceptional situations are
governed by Section 4, Rule 24 of the Rules of Court.
The principle conceding admissibility to a
deposition when the deponent is dead, out of the
Philippines, or otherwise unable to come to court to
testify, is consistent with another rule of evidence, found
in Section 47, Rule 132 of the Rules of Court.
It is apparent then that the deposition of any person
may be taken wherever he may be, in the Philippines or
abroad. If the party or witness is in the Philippines, his
deposition "shall be taken before any judge, municipal
or notary public" (Sec. 10, Rule 24, Rules of Court). If in
a foreign state or country, the deposition "shall be
taken: (a) on notice before a secretary or embassy or
legation, consul general, consul, vice-consul, or consular
agent of the Republic of the Philippines, or (b) before
such person or officer as may be appointed by
commission or under letters rogatory" (Sec. 11, Rule
24).
Leave of court is not necessary where the
deposition is to be taken before "a secretary or embassy
or legation, consul general, consul, vice-consul, or
consular agent of the Republic of the Philippines," and
the defendant's answer has already been served (Sec. 1
Rule 24). After answer, whether the deposition-taking is
to be accomplished within the Philippines or outside, the
law does not authorize or contemplate any intervention
by the court in the process, all that is required being
that "reasonable notice" be given "in writing to every
other party to the action . . . (stating) the time and
place for taking the deposition and the name and
address of each person to be examined, if known, and if
the name is not known, a general description sufficient
to identify him or the particular class or group to which
he belongs. . . . " (Sec. 15, Rule 24). The court
intervenes in the process only if a party moves (1) to
"enlarge or shorten the time" stated in the notice (id.),
or (2) "upon notice and for good cause shown," to
prevent the deposition-taking, or impose conditions
therefor, e.g., that "certain matters shall not be inquired
into" or that the taking be "held with no one present
except the parties to the action and their officers or
counsel," etc. (Sec. 16, Rule 24), or (3) to terminate the
process on motion and upon a showing that "it is being
conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the
deponent or party" (Sec 18, Rule 24).
Where the deposition is to be taken in a
foreign country where the Philippines has no "secretary
or embassy or legation, consul general, consul, vice-
consul, or consular agent," then obviously it may be
taken only "before such person or officer as may be
appointed by commission or under letters rogatory.
A commission may be defined as "(a)n
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" (Feria, J., Civil Procedure, 1969 ed., p.
415, citing Cyclopedic Law Dictionary, p. 200). Letters
rogatory, on the other hand, may be defined as "(a)n
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 cause
pending before the former, a witness who is within the
jurisdiction of the judge or court to whom such letters
are addressed" (Feria, J., op. cit., citing Cyclopedic Law
Dictionary, p. 653). Section 12, Rule 24 just quoted
states that a commission is addressed to "officers . . .
designated . . . either by name or descriptive title,"
while letters rogatory are addressed to some
"appropriate judicial authority in the foreign state."
Noteworthy in this connection is the indication in the
Rules that letters rogatory may be applied for and issued
only after a commission has been "returned unexecuted"
as is apparent from Form 21 of the "Judicial Standard
Forms" appended to the Rules of Court, which requires
the inclusion in a "petition for letters rogatory" of the
following paragraph, viz.:
xxx xxx xxx
3. A commission issued by this Court
on the ______ day of ______, 19__, to take
the testimony of (here name the witness or
witnesses) in (here name the foreign country
in which the testimony is to be taken), before
_________________ (name of officer),
was returned unexecuted by
__________________ on the ground that
____________, all of which more fully appears
from the certificate of said __________ to said
commission and made a part hereof by
attaching it hereto (or state other facts to
show commission is inadequate or cannot be
executed) (emphasis supplied).
In the case at bar, the Regional Trial Court has
issued a commission to the "Asian Exchange Center, Inc.
thru Director Joaquin R. Roces" "to take the testimonies
of . . . Kenneth H. Lee and Yeong Fah Yeh, by deposition
(upon written interrogatories) . . . ." It appears that said
Center may, "upon request and authority of the Ministry
(now Department) of Foreign Affairs, Republic of the
Philippines" issue a "Certificate of Authentications"
attesting to the identity and authority of Notaries Public
and other public officers of the Republic of China, Taiwan
(eg., the Section Chief, Department of Consular Affairs
of the latter's Ministry of Foreign Affairs) (Annex B of
Annex N of the petition for review on certiorari) —
a prima facie showing not rebutted by petitioner.
Page 177
Civil Procedure
ESGUERRA NOTES
Republic vs. Sandiganbayan (1991)
Facts: Private respondents Bienvenido R. Tantoco, Jr.
and Dominador R. Santiago — together with Ferdinand
E. Marcos, Imelda R. Marcos, Bienvenido R. Tantoco,
Sr., Gliceria R. Tantoco, and Maria Lourdes Tantoco-
Pineda-are defendants in Civil Case No. 0008 of the
Sandiganbayan.
Tantoco and Santiago then presented a
"motion for leave to file interrogatories under Rule 25 of
the Rules of Court" dated February 1, 1988, and
"Interrogatories under Rule 25." Basically, they sought
an answer to the question: "Who were the
Commissioners of the PCGG (aside from its Chairman,
Hon. Ramon Diaz, who verified the complaint) who
approved or authorized the inclusion of Messrs.
Bienvenido R. Tantoco, Jr. and Dominador R. Santiago
as defendants in the . . case?" The PCGG responded by
filing a motion dated February 9, 1988 to strike out said
motion and interrogatories as being impertinent,
"queer," "weird," or "procedurally bizarre as the purpose
thereof lacks merit as it is improper, impertinent and
irrelevant under any guise."
Afterwards, by Resolution dated July 4, 1988,
the Sandiganbayan denied the motion to strike out, for
bill of particulars, and for leave to file interrogatories,
holding them to be without legal and factual basis. It
opined, among others, that service of interrogatories
before joinder of issue and without leave of court is
premature absent any special or extraordinary
circumstances, which would justify the same.
On July 27, 1989 Tantoco and Santiago filed
with the Sandiganbayan a pleading denominated
"Interrogatories to Plaintiff," and on August 2, 1989, an
"Amended Interrogatories to Plaintiff"' as well as a
Motion for Production and Inspection of Documents.
By Resolutions dated August 21, 1989 and
August 25, 1989, the Sandiganbayan admitted the
Amended Interrogatories and granted the motion for
production and inspection of documents (production
being scheduled on September 14 and 15, 1989),
respectively. PCGG’s Motion for Reconsideration having
been denied, it filed a Petition for Certiorari before the
Supreme Court.
Issue: Whether or not the Sandiganbayan correctly
admitted the Amended Interrogatories and granted the
motion for production and inspection of documents.
Held: Involved in the present proceedings are two of
the modes of discovery provided in the Rules of Court:
interrogatories to parties, and production and inspection
of documents and things. Now, it appears to the Court
that among far too many lawyers (and not a few
judges), there is, if not a regrettable unfamiliarity and
even outright ignorance about the nature, purposes and
operation of the modes of discovery, at least a strong
yet unreasoned and unreasonable disinclination to resort
to them — which is a great pity for the intelligent and
adequate use of the deposition-discovery mechanism,
coupled with pre-trial procedure, could, as the
experience of other jurisdictions convincingly
demonstrates, effectively shorten the period of litigation
and speed up adjudication. Hence, a few words about
these remedies is not at all inappropriate.
The resolution of controversies is, as everyone
knows, the raison d'etre of courts. This essential
function is accomplished by first, the ascertainment of
all the material and relevant facts from the pleadings
and from the evidence adduced by the parties,
and second, after that determination of the facts has
been completed, by the application of the law thereto to
the end that the controversy may be settled
authoritatively, definitely and finally.
It is for this reason that a substantial part of
the adjective law in this jurisdiction is occupied with
assuring that all the facts are indeed presented to the
Court; for obviously, to the extent that adjudication is
made on the basis of incomplete facts, to that extent
there is faultiness in the approximation of objective
justice. It is thus the obligation of lawyers no less than
of judges to see that this objective is attained; that is to
say, that there no suppression, obscuration,
misrepresentation or distortion of the facts; and that no
party be unaware of any fact material a relevant to the
action, or surprised by any factual detail suddenly
brought to his attention during the trial.
Seventy-one years ago, in Alonso v.
Villamor, this Court described the nature and object of
litigation and in the process laid down the standards by
which judicial contests are to be conducted in this
jurisdiction. It said:
A litigation is not a game of technicalities in
which one, more deeply schooled and
skilled in the subtle art of movement and
position, entraps and destroys the other. It
is, rather a contest in whicheach
contending party fully and fairly lays before
the court the facts in issue and then
brushing aside as wholly trivial and
indecisive all imperfections of form and
technicalities of procedure, asks that justice
be done on the merits. Lawsuits, unlike
duels, are not to be won by a rapier's
thrust. Technicality, when it deserts its
proper office as an aid to justice and
becomes its great hindrance and chief
enemy, deserves scant consideration from
courts. There should be no vested right in
technicalities. . . .
The message is plain. It is the duty of each
contending party to lay before the court the facts in
issue-fully and fairly; i.e., to present to the court all the
material and relevant facts known to him, suppressing
or concealing nothing, nor preventing another party, by
clever and adroit manipulation of the technical rules of
pleading and evidence, from also presenting all the facts
within his knowledge.
Initially, that undertaking of laying the facts
before the court is accomplished by the pleadings filed
by the parties; but that, only in a very general way.
Only "ultimate facts" are set forth in the pleadings;
hence, only the barest outline of the facfual basis of a
party's claims or defenses is limned in his pleadings. The
law says that every pleading "shall contain in a
methodical and logical form, a plain, concise and direct
statement of the ultimate factson which the party
pleading relies for his claim or defense, as the case may
be, omitting the statement of mere evidentiary facts."
Page 178
Civil Procedure
ESGUERRA NOTES
Parenthetically, if this requirement is not
observed, i.e., the ultimate facts are alleged too
generally or "not averred with sufficient definiteness or
particularity to enable . . (an adverse party) properly to
prepare his responsive pleading or to prepare for trial,"
a bill of particulars seeking a "more definite statement"
may be ordered by the court on motion of a party. The
office of a bill of particulars is, however, limited to
making more particular or definite the ultimate facts in a
pleading It is not its office to supply evidentiary matters.
And the common perception is that said evidentiary
details are made known to the parties and the court only
during the trial, when proof is adduced on the issues of
fact arising from the pleadings.
The truth is that "evidentiary matters" may be
inquired into and learned by the parties before the trial.
Indeed, it is the purpose and policy of the law that the
parties — before the trial if not indeed even before the
pre-trial — should discover or inform themselves of all
the facts relevant to the action, not only those known to
them individually, but also those known to adversaries;
in other words, the desideratum is that civil trials should
not be carried on in the dark; and the Rules of Court
make this ideal possible through the deposition-
discovery mechanism set forth in Rules 24 to 29. The
experience in other jurisdictions has been that ample
discovery before trial, under proper regulation,
accomplished one of the most necessary of modern
procedure: it not only eliminates unessential issue from
trials thereby shortening them considerably, but also
requires parties to play the game with the cards on the
table so that the possibility of fair settlement before trial
is measurably increased. . ."
As just intimated, the deposition-discovery
procedure was designed to remedy the conceded
inadequacy and cumbersomeness of the pre-trial
functions of notice-giving, issue-formulation and fact
revelation theretofore performed primarily by the
pleadings.
The various modes or instruments of discovery
are meant to serve (1) as a device, along with the pre-
trial hearing under Rule 20, to narrow and clarify the
basic issues between the parties, and (2) as a device for
ascertaining the facts relative to those issues. The
evident purpose is, to repeat, to enable parties,
consistent with recognized privileges, to obtain the
fullest possible knowledge of the issues and facts before
trials and thus prevent that said trials are carried on in
the dark.
To this end, the field of inquiry that may be
covered by depositions or interrogatories is as broad as
when the interrogated party is called as a witness to
testify orally at trial. The inquiry extends to all facts
which are relevant, whether they be ultimate or
evidentiary, excepting only those matters which are
privileged. The objective is as much to give every party
the fullest possible information of all the relevant facts
before the trial as to obtain evidence for use upon said
trial. The principle is reflected in Section 2, Rule 24
(governing depositions) which generally allows the
examination of a deponent —
1) "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;"
2) as well as:
(a) "the existence, description, nature,
custody, condition and location of any books,
documents, or other tangible things" and
(b) "the identity and location of persons having
knowledge of relevant facts."
What is chiefly contemplated is the discovery
of every bit of information which may be useful in the
preparation for trial, such as the identity and location of
persons having knowledge of relevant facts; those
relevant facts themselves; and the existence,
description, nature, custody, condition, and location of
any books, documents, or other tangible things. Hence,
"the deposition-discovery rules are to be accorded a
broad and liberal treatment. No longer can the time-
honored cry of "fishing expedition" serve to preclude a
party from inquiring into the facts underlying his
opponent's case. Mutual knowledge of all the relevant
facts gathered by both parties is essential to proper
litigation. To that end, either party may compel the
other to disgorge whatever facts he has in his
possession. The deposition-discovery procedure simply
advances the stage at which the disclosure can be
compelled from the time of trial to the period preceding
it, thus reducing the possibility, of surprise, . . .
In line with this principle of according liberal
treatment to the deposition-discovery mechanism, such
modes of discovery as (a) depositions (whether by oral
examination or written interrogatories) under Rule 24,
(b) interrogatories to parties under Rule 25, and (c)
requests for admissions under Rule 26, may be availed
of without leave of court, and generally, without court
intervention. The Rules of Court explicitly provide that
leave of court is not necessary to avail of said modes of
discovery after an answer to the complaint has been
served. It is only when an answer has not yet been filed
(but after jurisdiction has been obtained over the
defendant or property subject of the action) that prior
leave of court is needed to avail of these modes of
discovery, the reason being that at that time the issues
are not yet joined and the disputed facts are not clear.
On the other hand, leave of court is required
as regards discovery by (a) production or inspection of
documents or things in accordance with Rule 27, or (b)
physical and mental examination of persons under Rule
28, which may be granted upon due application and a
showing of due cause.
To ensure that availment of the modes of
discovery is otherwise untrammeled and efficacious, the
law imposes serious sanctions on the party who refuses
to make discovery, such as dismissing the action or
proceeding or part thereof, or rendering judgment by
default against the disobedient party; contempt of court,
or arrest of the party or agent of the party; payment of
the amount of reasonable expenses incurred in obtaining
a court order to compel discovery; taking the matters
inquired into as established in accordance with the claim
of the party seeking discovery; refusal to allow the
disobedient party support or oppose designated claims
or defenses; striking out pleadings or parts thereof;
staying further proceedings.
Of course, there are limitations to discovery,
even when permitted to be undertaken without leave
and without judicial intervention. "As indicated by (the)
Rules . . ., limitations inevitably arise when it can be
shown that the examination is being conducted in bad
faith or in such a manner as to annoy, embarass, or
oppress the person subject to the inquiry. And . . .
further limitations come into existence when the inquiry
touches upon the irrelevant or encroaches upon the
recognized domains of privilege."
Page 179
Civil Procedure
ESGUERRA NOTES
In fine, the liberty of a party to make discovery
is well-nigh unrestricted if the matters inquired into are
otherwise relevant and not privileged, and the inquiry is
made in good faith and within the bounds of the law.
It is in light of these broad principles underlying the
deposition-discovery mechanism, in relation of course to
the particular rules directly involved, that the issues in
this case will now be resolved.
The petitioner's objections to the
interrogatories served on it in accordance with Rule 25
of the Rules of Court cannot be sustained.
It should initially be pointed out — as regards
the private respondents "Motion for Leave to File
Interrogatories" dated February 1, 1988 — that it was
correct for them to seek leave to serve interrogatories,
because discovery was being availed of before an
answer had been served. In such a situation, i.e., "after
jurisdiction has been obtained over any defendant or
over property subject of the action" but before answer,
Section 1 of Rule 24 (treating of depositions), in relation
to Section 1 of Rule 25 (dealing with interrogatories to
parties) explicitly requires "leave of court." But there
was no need for the private respondents to seek such
leave to serve their "Amended Interrogatories to
Plaintiff" (dated August 2, 19) after they had filed their
answer to the PCGG's complaint, just as there was no
need for the Sandiganbayan to act thereon.
The petitioner's first contention — that the
interrogatories in question are defective because they
(a) do not name the particular individuals to whom they
are propounded, being addressed only to the PCGG, and
(b) are "fundamentally the same matters . . (private
respondents) sought to be clarified through their
aborted Motion . . for Bill of Particulars" — are untenable
and quickly disposed of.
The first part of petitioner's submission is
adequately confuted by Section 1, Rule 25 which states
that if the party served with interrogatories is a juridical
entity such as "a public or private corporation or a
partnership or association," the same shall be "answered
. . by any officer thereof competent to testify in its
behalf." There is absolutely no reason why this
proposition should not be applied by analogy to the
interrogatories served on the PCGG. That the
interrogatories are addressed only to the PCGG, without
naming any specific commissioner o officer thereof, is
utterly of no consequence, and may not be invoked as a
reason to refuse to answer. As the rule states, the
interrogatories shall be answered "by any officer thereof
competent to testify in its behalf."
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.
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
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 if the court finds:
(1) the witness is dead;
(2) the witness resides at a distance more
than one hundred (100) kilometers
from the place of trial or hearing, or is
out of the Philippines, unless it appears
that his absence was procured by the
party offering the deposition;
(3) the witness is unable to attend or 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;
(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.
(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.
Effect of substitution of parties.
1. Substitution of parties does not affect the right to
use depositions previously taken.
2. 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.
Objections to admissibility.
Subject to the provisions of section 29 of this Rule,
objection 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.
Page 180
Civil Procedure
ESGUERRA NOTES
Effect of taking depositions.
A party shall not be deemed to make a person his own
witness for any purpose by taking his deposition.
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.
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.
Persons before whom depositions may be taken
within the Philippines.
Within the Philippines depositions may be taken before
any judge, notary public, or the person referred to in
section 14 hereof.
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.
Commission or letters rogatory.
(a) 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.
(b) 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.
Disqualification by interest.
No deposition shall be taken before a person who is:
(a) a relative within the sixth degree of
consanguinity or affinity, or employee or counsel
of any of the parties;
(b) a relative within the same degree, or employee of
such counsel;
(c) financially interested in the action.
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.
Deposition upon oral examination; notice; time
and place.
(a) 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.
(b) The notice shall state the time and place for
taking the deposition and the name and address
of each person to be examined, if known, and if
the name is not known, a general description
sufficient to identify him or the particular class or
group to which he belongs.
(c) On motion of any party upon whom the notice is
served, the court may for cause shown enlarge or
shorten the time.
Orders for the protection of parties and deponents.
(a) 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:
1. the deposition shall not be taken;
2. it may be taken only at some designated place
other than that stated in the notice;
3. it may be taken only on written
interrogatories;
4. certain matters shall not be inquired into;
5. the scope of the examination shall be held with
no one present except the parties to the
action and their officers or counsel;
6. after being sealed the deposition shall be
opened only by order of the court;
7. secret processes, developments, or research
need not be disclosed;
8. the parties shall simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the
court;
9. the court may make any other order which
justice requires to protect the party or
witness from annoyance, embarrassment, or
oppression.
Record of examination, oath; objections.
(a) The officer before whom the deposition is to be
taken shall put the witness on oath and shall
personally, or by someone acting under his
direction and in his presence, record the
testimony of the witness.
(b) The testimony shall be taken stenographically
unless the parties agree otherwise.
(c) All objections made at the time of the
examination to the qualifications of the officer
taking the deposition, or to the manner of
talking 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 deposition.
(d) 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
Page 181
Civil Procedure
ESGUERRA NOTES
interrogatories to the officers, who shall
propound them to the witness and record the
answers verbatim.
Motion to terminate or limit examination.
(a) 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 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.
(b) 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.
(c) 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.
(d) In granting or refusing such order, the court may
impose upon either party or upon the witness the
requirement to pay such costs or expenses as the
court may deem reasonable.
Submission to witness; changes; signing.
(a) 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.
(b) 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.
(c) The deposition shall then be signed by the
witness, unless the parties by stipulation waive
the signing or the witness is ill or cannot be
found or refuses to sign.
(d) 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 of the illness or absence of
the witness or the fact of the refusal to sign
together with the reason be 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.
Certification, and filing by officer.
(a) 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.
(b) 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.
Notice of filing.
The officer taking the deposition shall give prompt notice
of its filing to all the parties.
Furnishing copies.
Upon payment of reasonable charges therefor, the
officer shall furnish a copy of the deposition to any party
or to the deponent.
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 attorney's fees.
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 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 attorney's
fees.
Deposition upon written interrogatories; service of
notice and of interrogatories.
(a) 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 whom the
deposition is to be taken.
(b) Within ten (10) days thereafter, a party so
served may serve cross-interrogatories upon the
party proposing to take the deposition.
(c) Within five (5) days thereafter, the latter may
serve re-direct interrogatories upon a party who
has served cross-interrogatories.
(d) 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.
Page 182
Civil Procedure
ESGUERRA NOTES
Officers to take responses 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.
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.
Order 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 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.
Effect of errors and irregularities in depositions.
(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 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 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 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 and 26 of this Rule are 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.
Rule 24
Depositions before Action or Pending
Appeal
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.
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; and
(e) the names and addresses 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.
Notice and service.
(a) 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.
(b) At least twenty (20) days before 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.
Page 183
Civil Procedure
ESGUERRA NOTES
Order and examination.
(a) 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.
(b) The depositions may be taken in accordance with
Rule 23 before the hearing.
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.
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 sections 4 and 5 of
Rule 23.
Depositions pending appeal.
(a) If an appeal has been taken from a 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 in the event of further proceedings
in the said court.
(b) In such case the party who desires to perpetuate
the testimony may make a motion in the said
court for leave to take the depositions, upon the
same notice and service thereof as if the action
was pending therein.
(c) 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, and (b) the reason for
perpetuating their testimony.
(d) 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
deposition 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.
Rule 25
Interrogatories to Parties
Interrogation to parties; service thereof
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 in the following
circumstances: (a) before answer has been
served; and (b) for the second set of
interrogatories for the same adverse party
(Section 4, Rule 25).
Answer to interrogatories
The interrogatories shall be answered fully in writing and
shall be signed and sworn to by the person making
them.
N.B. A judgment by default may be rendered against a
party who fails to answer written interrogatories
(Section 3(c), Rule 29).
Objections to interrogatories
Objections to any interrogatories may be presented to
the court within 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.
Number of interrogatories
No party may, without leave of court, serve more than
one set of interrogatories to be answered by the same
party.
Scope and use of interrogatories
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.
Effect of failure to serve written interrogatories
Unless a party had been served with written
interrogatories, he may not be compelled by the adverse
party (a) to give testimony in open court; or (b) to 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.
Page 184
Civil Procedure
ESGUERRA NOTES
Rule 26
Admission by Adverse Party
Request for admission
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; and
2. Admission of the truth of any material and
relevant matter of fact set forth in the request.
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 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 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 his compliance therewith shall be
deferred until such objections are resolved, which
resolution shall be made as early as practicable.
Effect of admission
An admission under this Section is for the purpose of the
pending action only and cannot be used in other
proceedings.
Withdrawal
The party making an admission under this Rule, may be
allowed by the court to withdraw or amend it upon such
terms as may be just.
Effect of failure to file and serve request for
admission
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.
Po v. Court of Appeals (1988)
Facts: The petitioner filed a complaint for damages
against the private respondent Jose P. Mananzan as
operator of a banca service for shooting the rapids at
Pagsanjan Falls, arising from an accidental spill into the
water, which she and her friend suffered when the banca
in which they were riding capsized during their trip back
to town. After Mananzan had answered the complaint,
petitioner served upon him a request for admission.
Mananzan failed to file and serve an answer to the
request for admission. Petitioner thus filed a motion for
summary judgment on the ground that there exists no
genuine or substantial controversy on any issue of fact
since Mananzan has deemed admitted the matters
stated in the request for admission for his failure to
answer the same. Respondent Judge Lustre denied the
motion for summary judgment, observing that "the
interrogatories ... are nothing but a reiteration of a
portion of the plaintiffs allegations in the complaint,
which have already been answered and denied by the
defendant in his answer" hence, they "need not be
answered again if asked in the form of interrogatories."
Issue: Whether or not the material facts in a complaint,
which were made subject to a request for admission, are
deemed admitted upon failure to answer the request
Held: No. A party should not be compelled to admit
matters of fact already admitted by his pleading and
concerning which there is no issue, nor should he be
required to make a second denial of those already
denied in his answer to the complaint. A request for
admission is not intended to merely reproduce or
reiterate the allegations of the requesting party's
pleading but should set forth relevant evidentiary
matters of fact, or documents described in and exhibited
with the request, whose purpose is to establish said
party's cause of action or defense. Unless it serves that
purpose, it is, as correctly observed by the Court of
Appeals, "pointless, useless," and "a mere redundancy."
Rule 27
Production or Inspection of Document
or Things
Motion for production or inspection; order
Requisites of the motion for production or inspection:
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 thing sought to be produced
or inspected must be in the possession of the
adverse party or, at least under his control.
Page 185
Civil Procedure
ESGUERRA NOTES
Rule 28
Physical and Mental Examination
This mode of discovery is available in an action in which
the mental or physical condition of a party is in
controversy.
Examples of these actions are:
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; and
c. An action to recover damages for personal
injury where the issue is the extent of the
injuries of the plaintiff.
Order for examination
The following are the requisites to obtain an order for
examination:
1. A motion must be filed for the physical and
mental examination;
2. The motion must show good cause for the
examination;
3. 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.
Report of findings
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.
Waiver of privilege
Where the party examined requests and obtains a report
on the results 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.
Rule 29
Refusal to Comply with Modes of
Discovery
If a party refuses to answer any question, the
following may be the consequences:
1. The court, may, upon proper application,
compel a refusing deponent to answer (Sec.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
attorney's 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 attorney's fees.
2. A refusal to answer after being directed by the
court to do so may be considered as contempt
of court (Sec. 2)
If a person refuses to be sworn in as a witness, he
may be cited in contempt of court.
If a person refuses to answer designated
questions or refusal to produce documents or to
submit to physical or mental examination (Sec. 3),
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; and
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.
If a person denies the genuineness of any document or
the truth of any matter of fact in a request for admission
under Rule 26, and the party requesting for admission
proves said document to be genuine or said fact to be
true, the court may, upon motion, order the party
requested to admit, to pay the expenses incurred in
making such proof unless the court finds that there were
sufficient grounds for the denial.
If a person fails despite due notice to attend a schedule
for deposition-taking, or fails to file his answer to written
interrogatories, the court may:
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; or
4. Order payment of reasonable expenses
incurred by the other including attorney's fees.
Page 186
Civil Procedure
ESGUERRA NOTES
A.M. No. 03-1-09-SC
13 July 2004
GUIDELINES TO BE OBSERVED BY TRIAL COURT
JUDGES AND CLERKS OF COURT IN THE CONDUCT
OF PRE-TRIAL AND USE OF DEPOSITION-
DISCOVERY MEASURES
The use of pre-trial and the deposition-discovery
measures are undeniably important and vital
components of case management in trial courts. To
abbreviate court proceedings, ensure prompt disposition
of cases and decongest court dockets, and to further
implement the pre-trial guidelines laid down in
Administrative Circular No. 3-99 dated January 15, 1999
and except as otherwise specifically provided for in other
special rules, the following guidelines are issued for the
observance and guidance of trial judges and clerks of
court:
I. PRE-TRIAL
A. Civil Cases
1. Within one day from receipt of the complaint:
1.1 Summons shall be prepared and shall contain a
reminder to defendant to observe restraint in filing a
motion to dismiss and instead allege the grounds thereof
as defenses in the Answer, in conformity with IBP-OCA
Memorandum on Policy Guidelines dated March 12,
2002. A copy of the summons is hereto attached as
Annex "A;" and
1.2 The court shall issue an order requiring the parties
to avail of interrogatories to parties under Rule 25 and
request for admission by adverse party under Rule 26 or
at their discretion make use of depositions under Rule
23 or other measures under Rules 27 and 28 within five
days from the filing of the answer. A copy of the order
shall be served upon the defendant together with the
summons and upon the plaintiff.
Within five (5) days from date of filing of the reply, the
plaintiff must promptly move ex parte that the case be
set for pre-trial conference. If the plaintiff fails to file
said motion within the given period, the Branch COC
shall issue a notice of pre-trial.
2. The parties shall submit, at least three (3) days
before the pre-trial, pre-trial briefs containing the
following:
a. A statement of their willingness to enter into an
amicable settlement indicating the desired terms thereof
or to submit the case to any of the alternative modes of
dispute resolution;
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. (No evidence shall be allowed
to be presented and offered during the trial in
support of a party's evidence-in-chief other than
those that had been earlier identified and pre-
marked during the pre-trial, except if allowed by
the court for good cause shown);
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, the
substance of their testimonies, and the approximate
number of hours that will be required by the parties for
the presentation of their respective witnesses.
A copy of the Notice of Pre-trial Conference is hereto
attached as Annex "B." The rule on the contents of the
pre-trial brief must strictly be complied with. The parties
are bound by the representations and statements in
their respective pre-trial briefs.
3. At the start of the pre-trial conference, the judge
shall immediately refer the parties and/or their counsel
if authorized by their clients to the PMC mediation unit
for purposes of mediation if available.5 If mediation
fails, the judge will schedule the continuance of the pre-
trial conference. Before the continuance, the Judge may
refer the case to the Branch COC for a preliminary
conference to assist the parties in reaching a settlement,
to mark the documents or exhibits to be presented by
the parties and copies thereof to be attached to the
records after comparison and to consider such other
matters as may aid in its prompt disposition.
During the preliminary conference, the Branch COC shall
also ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of the
documents marked as exhibits. The proceedings during
.the preliminary conference shall be recorded in the
"Minutes of Preliminary Conference" to be signed by
both parties and/or counsel, the form of which is hereto
attached as Annex. "C".
The minutes of preliminary conference and the exhibits
shall be attached by the Branch COC to the case record
before the pre-trial.
4. Before the continuation of the pre-trial conference,
the judge must study all the pleadings of the case, and
determine the issues thereof and the respective
positions of the parties thereon to enable him to
intelligently steer the parties toward a possible amicable
settlement of the case, or, at the very least, to help
reduce and limit the issues. The judge should not allow
the termination of pre-trial simply because of the
manifestation of the parties that they cannot settle the
case. He should expose the parties to the advantages of
pre-trial. He must also be mindful that there are other
important aspects of the pre-trial that ought to be taken
up to expedite the disposition of the case.
The Judge with all tact, patience, impartiality and with
due regard to the rights of the parties shall endeavor to
persuade them to arrive at a settlement of the dispute.
The court shall initially ask the parties and their lawyers
if an amicable settlement of the case is possible. If not,
the judge may confer with the parties with the opposing
counsel to consider the following:
a. Given the evidence of the plaintiff presented in his
pre-trial brief to support his claim, what manner of
compromise is considered acceptable to the defendant
at the present stage?
b. Given the evidence of the defendant described in his
pre-trial brief to support his defense, what manner of
compromise is considered acceptable to the plaintiff at
the present stage?
If not successful, the court shall confer with the party
and his counsel separately.
Page 187
Civil Procedure
ESGUERRA NOTES
If the manner of compromise is not acceptable, the
judge shall confer with the parties without their counsel
for the same purpose of settlement.
5. If all efforts to settle fail, the trial judge shall:
a. Adopt the minutes of preliminary conference as part
of the pre-trial proceedings and confirm markings of
exhibits or substituted photocopies and admissions on
the genuineness and due execution of documents;
b. Inquire if there are cases arising out of the same facts
pending before other courts and order its consolidation if
warranted;
c. Inquire if the pleadings are in order. If not, order the
amendments if necessary;
d. Inquire if interlocutory issues are involved and resolve
the same;
e. Consider the adding or dropping of parties;
f. Scrutinize every single allegation of the complaint,
answer and other pleadings and attachments thereto
and the contents of documents and all other evidence
identified and pre-marked during pre-trial in determining
further admissions of facts and documents. To obtain
admissions, the Court shall ask the parties to submit the
depositions taken under Rule 23, the answers to written
interrogatories under Rule 25 and the answers to
request for admissions by the adverse party under Rule
26. It may also require the production of documents or
things requested by a party under Rule 27 and the
results of the physical and mental examination of
persons under Rule 28;
g. Define and simplify the factual and legal issues arising
from the pleadings. Uncontroverted issues and frivolous
claims or defenses should be eliminated. For each
factual issue, the parties/counsel shall state all the
evidence to support their positions thereon. For each
legal issue, parties/counsel shall state the applicable law
and jurisprudence supporting their respective positions
thereon. If only legal issues are presented, the judge
shall require the parties to submit their respective
memoranda and the court can proceed to render
judgment;
h. Determine the propriety of rendering a summary
judgment dismissing the case based on the disclosures
made at the pre-trial or a judgment based on the
pleadings, evidence identified and admissions made
during pre-trial;
i. Ask parties to agree on the specific trial dates for
continuous trial in accordance with Circular No. 1-89
dated January 19, 1989; adhere to the case flow chart
determined by the court, which shall contain the
different stages of the proceedings up to the
promulgation of the decision and use the time frame for
each stage in setting the trial dates. The One-Day
Examination of Witness Rule, that is, a witness has to be
fully examined in one (1) day only, shall be strictly
adhered to subject to the courts' discretion during trial
on whether or not to extend the direct and/or cross-
examination for justifiable reasons. On the last hearing
day allotted for each party, he is required to make his
formal offer of evidence after the presentation of his last
witness and the opposing party is required to
immediately interpose his objection thereto. Thereafter,
the Judge shall make the ruling on the offer of evidence
in open court. However the judge has the discretion to
allow the offer of evidence in writing in conformity with
Section 35, Rule 132;
j. Determine the most important witnesses to be heard
and limit the number of witnesses (Most Important
Witness Rule). The facts to be proven by each witness
and the approximate number of hours per witness shall
be fixed;
k. At his discretion, order the parties to use the
affidavits of witnesses as direct testimonies subject to
the right to object to inadmissible portions thereof and
to the right of cross-examination by the other party. The
affidavits shall be based on personal knowledge, shall
set forth facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to
testify to the matters stated therein. The affidavits shall
be in question and answer form, and shall comply with
the rules on admissibility of evidence;
l. Require the parties and/or counsel to submit to the
Branch COC the names, addresses and contact numbers
of the witnesses to be summoned by subpoena;
m. Order the delegation of the reception of evidence to
the Branch COC under Rule 30; and
n. Refer the case to a trial by commissioner under Rule
32.
During the pre-trial, the judge shall be the one to ask
questions on issues raised therein and all questions or
comments by counsel or parties must be directed to the
judge to avoid hostilities between the parties.
6. The trial judge shall schedule the pre-trial in the
afternoon sessions and set as many pre-trial
conferences as may be necessary.
7. All proceedings during the pre-trial shall be recorded.
The minutes of each pre-trial conference shall contain
matters taken up therein more particularly admissions of
facts and exhibits and shall be signed by the parties and
their counsel.
8. The judge shall issue the required Pre-Trial Order
within ten (10) days after the termination of the pre-
trial. Said Order shall bind the parties, limit the trial to
matters not disposed of and control the course of the
action during the trial. A sample Pre-Trial Order is
hereto attached as Annex "D."
However, the Court may opt to dictate the Pre-Trial
Order in open court in the presence of the parties and
their counsel and with the use of a computer, shall have
the same immediately finalized and printed. Once
finished, the parties and/or their counsel shall sign the
same to manifest their conformity thereto.
9. The court shall endeavor to make the parties agree to
an equitable compromise or settlement at any stage of
the proceedings before rendition of judgment.
B. Criminal Cases
1. Before arraignment, the Court shall issue an order
directing the public prosecutor to submit the record of
the preliminary investigation to the Branch COC for the
latter to attach the same to the record of the criminal
case.
Page 188
Civil Procedure
ESGUERRA NOTES
Where the accused is under preventive detention, his
case shall be raffled and its records transmitted to the
judge to whom the case was raffled within three days
from the filing of the complaint or information. The
accused shall be arraigned within ten days from the date
of the raffle. The pre-trial of his case shall be held within
ten days after arraignment unless a shorter period is
provided for by law.
2. After the arraignment, the court shall forthwith set
the pre-trial conference within thirty days from the date
of arraignment, and issue an order: (a) requiring the
private offended party to appear thereat for purposes of
plea-bargaining except for violations of the
Comprehensive Dangerous Drugs Act of 2002, and for
other matters requiring his presence; (b) referring the
case to the Branch COC, if warranted, for a preliminary
conference to be set at least three days prior to the pre-
trial to mark the documents or exhibits to be presented
by the parties and copies thereof to be attached to the
records after comparison and to consider other matters
as may aid in its prompt disposition; and (c) informing
the parties that no evidence shall be allowed to be
presented and offered during the trial other than those
identified and marked during the pre-trial except when
allowed by the court for good cause shown. A copy of
the order is hereto attached as Annex "E". In mediatable
cases, the judge shall refer the parties and their counsel
to the PMC unit for purposes of mediation if available.
3. During the preliminary conference, the Branch COC
shall assist the parties in reaching a settlement of the
civil aspect of the case, mark the documents to be
presented as exhibits and copies thereof attached to the
records after comparison, ascertain from the parties the
undisputed facts and admissions on the genuineness and
due execution of documents marked as exhibits and
consider such other matters as may aid in the prompt
disposition of the case. The proceedings during the
preliminary conference shall be recorded in the Minutes
of Preliminary Conference to be signed by both parties
and counsel. (Please see Annex "B")
The Minutes of Preliminary Conference and the exhibits
shall be attached by the Branch COC to the case record
before the pre-trial.
4. Before the pre-trial conference the judge must study
the allegations of the information, the statements in the
affidavits of witnesses and other documentary evidence
which form part of the record of the preliminary
investigation.
5. During the pre-trial, except for violations of the
Comprehensive Dangerous Drugs Act of 2002, the trial
judge shall consider plea-bargaining
arrangements. Where the prosecution and the offended
party agree to the plea offered by the accused, the court
shall:
a. Issue an order which contains the plea bargaining
arrived at;
b. Proceed to receive evidence on the civil aspect of the
case; and
c. Render and promulgate judgment of conviction,
including the civil liability or damages duly established
by the evidence.
6. When plea bargaining fails, the Court shall:
a. Adopt the minutes of preliminary conference as part
of the pre-trial proceedings, confirm markings of
exhibits or substituted photocopies and admissions on
the genuineness and due execution of documents and
list object and testimonial evidence;
b. Scrutinize every allegation of the information and the
statements in the affidavits and other documents which
form part of the record of the preliminary investigation
and other documents identified and marked as exhibits
in determining farther admissions of facts, documents
and in particular as to the following:
1. the identity of the accused;
2. court's territorial jurisdiction relative to the offense/s
charged;
3. qualification of expert witness/es;
4. amount of damages;
5. genuineness and due execution of documents;
6. the cause of death or injury, in proper cases;
7. adoption of any evidence presented during the
preliminary investigation;
8. disclosure of defenses of alibi, insanity, self-
defense, exercise of public authority and justifying or
exempting circumstances; and
9. such other matters that would limit the facts in issue.
c. Define factual and legal issues;
d. Ask parties to agree on the specific trial dates and
adhere to the flow chart determined by the court which
shall contain the time frames for the different stages of
the proceeding up to promulgation of decision and use
the time frame for each stage in setting the trial dates;
e. Require the parties to submit to the Branch COC the
names, addresses and contact numbers of witnesses
that need to be summoned by subpoena; and
f. Consider modification of order of trial if the accused
admits the charge but interposes a lawful defense.
7. During the pre-trial, the judge shall be the one to ask
questions on issues raised therein and all questions
must be directed to him to avoid hostilities between
parties.
8. All agreements or admissions made or entered during
the pre-trial conference shall be reduced in writing and
signed by the accused and counsel, otherwise, they
cannot be used against the accused. The agreements
covering the matters referred to in Section 1 of Rule 118
shall be approved by the court. (Section 2, Rule 118)
9. All proceedings during the pre-trial shall be recorded,
the transcripts prepared and the minutes signed by the
parties and/or their counsels.
10. The trial judge shall issue a Pre-trial Order within
ten (10) days after the termination of the pre-trial
setting forth the actions taken during the pre-trial
conference, the facts stipulated, the admissions
made, evidence marked, the number of witnesses to be
presented and the schedule of trial. Said Order shall
bind the parties, limit the trial to matters not disposed of
and control the course the action during the trial.
Page 189
Civil Procedure
ESGUERRA NOTES
Case:
Hyatt Industrial Manufacturing Corp. v. Ley
Construction (2006)
Facts: Ley Construction and Development Corporation
(LCDC) filed a complaint for specific performance and
damages with the Regional Trial Court of Makati against
petitioner Hyatt Industrial Manufacturing Corporation
(Hyatt). LCDC filed an amended
complaint impleading Princeton Development
Corporation (Princeton) as additional defendant.
Responsive pleadings were filed and LCDC filed notices
to take the depositions of Yu; Pacita Tan Go, Account
Officer of Rizal Commercial Banking Corporation (RCBC);
and Elena Sy, Finance Officer of Hyatt. Hyatt also filed
notice to take deposition of Manuel Ley, President of
LCDC, while Princeton filed notice to take the
depositions of Manuel and Janet Ley. The RTC ordered
the deposition-taking to proceed. At the scheduled
deposition of Elena Sy on September 17, 1996, Hyatt
and Yu prayed that all settings for depositions be
disregarded and pre-trial be set instead, contending that
the taking of depositions only delay the resolution of the
case. The RTC agreed and on the same day ordered all
depositions cancelled and pre-trial to take place
on November 14, 1996.
Issue: Whether or not deposition as a mode of
discovery should be dispensed with, and the parties to
proceed with pre-trial, to expedite the proceedings of a
case
Held: No. A deposition should be allowed, absent any
showing that taking it would prejudice any party. It is
accorded a broad and liberal treatment and the liberty of
a party to make discovery is well-nigh unrestricted if the
matters inquired into are otherwise relevant and not
privileged, and the inquiry is made in good faith and
within the bounds of law. It is allowed as a departure
from the accepted and usual judicial proceedings of
examining witnesses in open court where their
demeanor could be observed by the trial judge,
consistent with the principle of promoting just, speedy
and inexpensive disposition of every action and
proceeding; and provided it is taken in accordance with
the provisions of the Rules of Court, i.e., with leave of
court if summons have been served, and without such
leave if an answer has been submitted; and provided
further that a circumstance for its admissibility
exists (Section 4, Rule 23, Rules of Court). The rules on
discovery should not be unduly restricted, otherwise, the
advantage of a liberal discovery procedure in
ascertaining the truth and expediting the disposal of
litigation would be defeated.
Indeed, the importance of discovery procedures is well
recognized by the Court. It approved A.M. No. 03-1-09-
SC on July 13, 2004 which provided for the guidelines to
be observed by trial court judges and clerks of court in
the conduct of pre-trial and use of deposition-discovery
measures. Under A.M. No. 03-1-09-SC, trial courts are
directed to issue orders requiring parties to avail of
interrogatories to parties under Rule 45 and request for
admission of adverse party under Rule 26 or at their
discretion make use of depositions under Rule 23 or
other measures under Rule 27 and 28 within 5 days
from the filing of the answer. The parties are likewise
required to submit, at least 3 days before the pre-trial,
pre-trial briefs, containing among others a manifestation
of the parties of their having availed or their intention to
avail themselves of discovery procedures or referral to
commissioners.
Since the pertinent incidents of the case took place prior
to the effectivity of said issuance, however, the
depositions sought by LCDC shall be evaluated based on
the jurisprudence and rules then prevailing, particularly
Sec. 1, Rule 23 of the 1997 Rules of Court which
provides as follows:
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. (Emphasis supplied).
As correctly observed by the CA, LCDC complied with
the above quoted provision as it made its notice to take
depositions after the answers of the defendants have
been served. LCDC having complied with the rules then
prevailing, the trial court erred in canceling the
previously scheduled depositions.
While it is true that depositions may be disallowed by
trial courts if the examination is conducted in bad faith;
or in such a manner as to annoy, embarrass, or oppress
the person who is the subject of the inquiry, or when the
inquiry touches upon the irrelevant or encroaches upon
the recognized domains of privilege, such circumstances,
however are absent in the case at bar.
The RTC cites the delay in the case as reason for
canceling the scheduled depositions. While speedy
disposition of cases is important, such consideration
however should not outweigh a thorough and
comprehensive evaluation of cases, for the ends of
justice are reached not only through the speedy disposal
of cases but more importantly, through a meticulous and
comprehensive evaluation of the merits of the
case. Records also show that the delay of the case is not
attributable to the depositions sought by LCDC but was
caused by the many pleadings filed by all the parties
including petitioners herein.
The argument that the taking of depositions would cause
unnecessary duplicity as the intended deponents shall
also be called as witnesses during trial, is also without
merit.
The case of Fortune Corp. v. Court of Appeals which
already settled the matter, explained that:
The availability of the proposed deponent to testify in
court does not constitute good cause to justify the
courts order that his deposition shall not be taken. That
the witness is unable to attend or testify is one of the
grounds when the deposition of a witness may be used
in court during the trial. But the same reason cannot be
successfully invoked to prohibit the taking of his
deposition.
Page 190
Civil Procedure
ESGUERRA NOTES
The right to take statements and the right to use them
in court have been kept entirely distinct. The utmost
freedom is allowed in taking depositions; restrictions are
imposed upon their use. As a result, there is accorded
the widest possible opportunity for knowledge by both
parties of all the facts before the trial. Such of this
testimony as may be appropriate for use as a substitute
for viva voce examination may be introduced at the
trial; the remainder of the testimony, having served its
purpose in revealing the facts to the parties before trial,
drops out of the judicial picture.
x x x [U]nder the concept adopted by the new Rules, the
deposition serves the double function of a method of
discovery - with use on trial not necessarily
contemplated - and a method of presenting
testimony. Accordingly, no limitations other than
relevancy and privilege have been placed on the taking
of depositions, while the use at the trial is subject to
circumscriptions looking toward the use of oral
testimony wherever practicable.
Petitioner also argues that LCDC has no evidence to
support its claims and that it was only after the filing of
its Complaint that it started looking for evidence through
the modes of discovery.
On this point, it is well to reiterate the Courts
pronouncement in Republic v. Sandiganbayan:
What is chiefly contemplated is the discovery of every
bit of information which may be useful in the preparation
for trial, such as the identity and location of persons
having knowledge of relevant facts; those relevant facts
themselves; and the existence, description, nature,
custody, condition, and location of any books,
documents, or other tangible things. Hence, the
deposition-discovery rules are to be accorded a broad
and liberal treatment. No longer can the time-honored
cry of fishing expedition serve to preclude a party from
inquiring into the facts underlying his opponent’s
case. Mutual knowledge of all the relevant facts
gathered by both parties is essential to proper
litigation. To that end, either party may compel the
other to disgorge whatever facts he has in his
possession. The deposition-discovery procedure simply
advances the stage at which the disclosure can be
compelled from the time of trial to the period preceding
it, thus reducing the possibility, of surprise.
It also does not escape this Courts attention that the
trial court, before dismissing LCDCs complaint, gave
LCDC two options: (a) enter into a pre-trial conference,
advising LCDC that what it would like to obtain at the
deposition may be obtained at the pre-trial conference,
thus expediting early termination of the case; and (b)
terminate the pre-trial conference and apply for
deposition later on. The trial court erred in forcing LCDC
to choose only from these options and in dismissing its
complaint upon LCDCs refusal to choose either of the
two.
The information LCDC seeks to obtain through the
depositions of Elena Sy, the Finance Officer of Hyatt
and Pacita Tan Go, an Account Officer of RCBC, may not
be obtained at the pre-trial conference, as the said
deponents are not parties to the pre-trial conference.
As also pointed out by the CA:
x x x To unduly restrict the modes of discovery during
trial, would defeat the very purpose for which it is
intended, as a pre-trial device. By then, the issues would
have been confined only on matters defined during pre-
trial. The importance of the modes of discovery cannot
be gainsaid in this case in view of the nature of the
controversy involved and the conflicting interest claimed
by the parties.
Deposition is chiefly a mode of discovery, the primary
function of which is to supplement the pleadings for the
purpose of disclosing the real matters of dispute
between the parties and affording an adequate factual
basis during the preparation for trial.
Further, in Republic v. Sandiganbayan the Court
explained that:
The truth is that evidentiary matters may be inquired
into and learned by the parties before the trial. Indeed,
it is the purpose and policy of the law that the
parties - before the trial if not indeed even before
the pre-trial - should discover or inform
themselves of all the facts relevant to the action,
not only those known to them individually, but
also those known to their adversaries; in other
words, the desideratum is that civil trials should
not be carried on in the dark; and the Rules of Court
make this ideal possible through the deposition-
discovery mechanism set forth in Rules 24 to 29. The
experience in other jurisdictions has been the ample
discovery before trial, under proper regulation,
accomplished one of the most necessary ends of modern
procedure; it not only eliminates unessential issues from
trials thereby shortening them considerably, but also
requires parties to play the game with the cards on the
table so that the possibility of fair settlement before trial
is measurably increased.
As just intimated, the deposition-discovery procedure
was designed to remedy the conceded inadequacy and
cumbersomeness of the pre-trial functions of notice-
giving, issue-formulation and fact revelation theretofore
performed primarily by the pleadings.
The various modes or instruments of discovery are
meant to serve (1) as a device, along with the pre-trial
hearing under Rule 20, to narrow and clarify the basic
issues between the parties, and (2) as a device for
ascertaining the facts relative to those issues. The
evident purpose is, to repeat, to enable the parties,
consistent with recognized privileges, to obtain the
fullest possible knowledge of the issues and facts before
civil trials and thus prevent that said trials are carried on
in the dark.
In this case, the information sought to be obtained
through the depositions of Elena and Pacita are
necessary to fully equip LCDC in determining what
issues will be defined at the pre-trial. Without such
information before pre-trial, LCDC will be forced to
prosecute its case in the dark --- the very situation
which the rules of discovery seek to prevent. Indeed,
the rules on discovery seek to make trial less a game of
blind man’s bluff and more a fair contest with the basic
issues and facts disclosed to the fullest practicable
extent.
Page 191
Civil Procedure
ESGUERRA NOTES
Rule 57
Preliminary Attachment
I. Nature of attachment
 A preliminary attachment is a provisional remedy
by virtue of which a plaintiff or other party may,
at the commencement of the action or at any
time thereafter, have the property of the adverse
party taken into the custody of the court as
security for the satisfaction of any judgment that
may be recovered. (Davao Light and Power, Inc.
v. Court of Appeals, et al., G.R. No. 93262, 29
December 1991)
 Preliminary attachment is designed to:
(a) 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; or
(b) 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 other
service to acquire jurisdiction over the
defendant cannot be effected.
Davao Light & Power Co., Inc. v. Court of Appeals
(1991)
Facts: Davao Light & Power Co. (“Davao Light”) filed a
complaint for recovery of a sum of money and damages
against Queensland Hotel (“Queensland”) and Teodorico
Adarna (“Adarna”), with an ex parte application for a
writ of preliminary attachment. The court granted the ex
parte application and fixed the attachment bond in the
amount of Php4,600,513.37. Thereafter, the summons
and a copy of the complaint, together with the writ of
attachment, were served on defendants Queensland and
Adarna, and pursuant to the writ, the sheriff seized
properties belonging to the latter.
Queenland and Adarna filed a motion to
discharge the attachment for lack of jurisdiction to issue
the same because at the time the order of attachment
was promulgated and the writ was issued the trial court
had not yet acquired jurisdiction over the cause and
over the persons of the defndants. The trial court denied
said motion to discharge. Queensland and Adarna filed
a petition for certiorari assailing the trial court’s Order
denying the motion to discharge before the Court of
Appeals, which annulled said Order.
Issue: Whether or not a writ of preliminary attachment
may issue ex parte against a defendant before
acquisition of jurisdiction of the latter’s person.
Held: Yes. The Court ruled that writs of attachment may
properly issue ex parte provided that the Court is
satisfied that the relevant requisites therefor have been
fulfilled by the applicant, although it may, in its
discretion, require prior hearing on the application with
notice to the defendant; but that levy on the property
pursuant to the writ thus issued may not be validly
effected unless preceded, or contemporaneously
accompanied, by service on the defendant of summons,
a copy of complaint, the application for attachment, the
order of attachment, and the plaintiff’s attachment
bond.
Olib v. Pastoral (1990)
Facts: Corazon Navia (“Navia”) sued the spouses Oscar
and Rober Olib (“Spouses Olib”) for dissolution of their
partnership, with a prayer for the issuance of a writ of
preliminary attachment. The writ was granted, resulting
in the attachment of six (6) parcels of land belonging to
Spouses Olib, along with stocks of merchandise. The
writ was amended later to release the merchandise. Two
years later, Spouses Olib filed a motion to discharge the
preliminary attachment on the ground that the
attachment bond executed for one year had already
lapsed, which motion was accompanied by a certification
that the bond had not been renewed.
Meanwhile, Judge Miguel Rallos of the Regional
Trial Court of Agusan del Norte and Butuan City
rendered judgment in favor of Spouses Olib, and
ordered Navia to pay damages , attorney’s fees and
litigation expenses. Navia appealed said judgment to the
Court of Appeals.
Although the trial court found in the text of the
decision that NAvia was not entitled to the issuance of
the writ of preliminary attachment, no mention was
made of said writ in the dispositive portion. As a result,
the annotation of the preliminary attachment on the
certificates of titles of the attached lands was
maintained and could not be cancelled.
Thereafter, Spouses Olib moved for the
discharge of the writ of preliminary attachment in view
of the judgment rendered in their favor. Navia opposed
said motion, contending that as she had perfected her
appeal to the Court of Appeals, the trial court could no
longer had any jurisdiction over the case. The motion to
discharge was denied.
Issues:
1. Whether or not the trial court no longer had
any jurisdiction over the preliminary
attachment when the main action was
appealed.
2. Whether or not non-payment of the premium
on the attachment bond will result in the lifting
of the attachment.
Held:
1. Yes. The Supreme Court ruled that where the
main action is appealed, the attachment which
may have been issued as an incident of that
action, is also considered appealed and so also
removed from the jurisidiction of the court a
quo. The attachment itself cannot be the
subject of a separate case independent of the
prinicipal action because the attachment was
only an incident of such action.
2. No. The rule is that the bond is not deemed
extinguished by reason alone of non-payment
of the premium on the attachment bond.
Page 192
Civil Procedure
ESGUERRA NOTES
II. When issued; grounds
1. Action for recovery of specified amount
 The cause of action is for money or
damages, on a cause of action arising
from law, contract, quasi-contract, delict
or quasi-delict.
 A writ of preliminary attachment cannot
be issued for moral and exemplary
damages and other unliquidated and
contingent claims. (Insular Savings Bank
v. Court of Appeals, G.R. No. 123638, 15
June 2005)
 The writ can only be issued against a
party about to depart from the Philippines
or with intent to defraud his creditors.
2. Action involving embezzled property
 The defendant may be a public officer, a
corporate officer, an attorney, a factor,
broker, agent, a clerk or any other person
acting in a fiduciary capacity; he may also
be a person who acted in a manner as to
willfully violate his duty not to embezzle,
fraudulently misapply, or not to convert
money or property for his own use.
 The allegations of fraud, embezzlement
and misappropriation must be
substantiated. (Philippine Bank of
Communications v. Court of Appeals, G.R.
No. 115678, 23 February 2011)
3. Action to recover property fraudulently
taken
 It must be alleged and shown that the
property involved 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.
 The property unjustly or fraudulently
taken, detained and converted by the
defendant may also be a real property,
since the rule makes no distinction.
(Philippine Commercial International Bank
v. Alejandro, G.R. No. 175587, 21
September 2007)
4. Action involving fraud in contracting or
performing obligations
 The fraud may either be dolo causante or
dolo incidente.
 Dolo causante is fraud used to induce
another to enter into a contract. (Art.
1338, Civil Code) while dolo incidente is
the fraud employed by a party in the
fulfillment of his obligation or after the
obligation has been contracted. (Art.
1344, Civil Code)
 There could also be fraud in contracting
the obligation where the debtor has a
preconceived plan not to pay the creditor
but fraudulent intent by the debtor cannot
be inferred from the mere inability to pay.
(Philippine Bank of Communications v.
Court of Appals, supra)
5. Action against party who has removed or
dispensed of property to defraud creditors
 Two elements required: (a) there is a
removal or disposal of the property; and
(b) the removal or disposal must be with
intent to defraud the creditor.
6. Action against non-resident defendant
 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.
 When the property located in the
Philippines of a non-resident who at the
same time is outside the Philippines is
attached, the court acquires jurisdiction
over the res and in that event, the
jurisdiction over the person of said
defendant is not essential. (Philippine
Commercial International Bank v.
Alejandro, supra)
III. 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 of 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 who 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. (Sec.2, Rule 57)
 Sections 3 and 4, Rule 57, merely require
that an applicant for an order of
attachment file an affidavit and a bond.
The affidavit to be executed by the
applicant himself or some other person
who personally knows the facts and to
show that:
(1) there is a sufficient cause of action;
(2) the case is one of those mentioned
in Section 1 of Rule 57;
(3) there is no other sufficient security
for the claim sought to be enforced;
and
(4) the amount claimed in the action is
as much as the sum for which the order
is granted above all legal
counterclaims;
Page 193
Civil Procedure
ESGUERRA NOTES
The bond, on the other hand, must be "executed to
the adverse party in an amount fixed by the judge,
not exceeding the applicant's claim, 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."
IV. Attachment bond required
 The bond posted by the attaching creditor
answers for the damages and costs which may
be adjudged to the adverse party arising from
and by the reason of the attachment. (Carlos
v. Sandoval, 471 SCRA 266)
V. Writ may issue ex parte; prior or
contemporaneous service of summons
required for enforcement
 An application for an order and writ of
execution may be granted ex parte because it
is possible that during the course of the
hearing, the party against whom the writ is
sought may dispose of his property or abscond
before the writ is issued. (Filinvest Credit v.
Relova, 117 SCRA 420)
 The writ of preliminary attachment may be
issued ex parte and even before the summons
is served upon the defendant. However, the
writ may not 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 & Power Co., Inc. v. Court of Appeals,
204 SCRA 343)
VI. Belated service of summons not allowed
 Implementation of the writ of attachment
without the required jurisdiction over the
person of the defendant is null and void. (BAC
Mfg. & Sons Corp. v. Court of Appeals, 200
SCRA 130)
Torres v. Satsatin (2009)
Facts: Petitioners filed a complaint for sum of money
against respondents. Thereafter, petitioners filed an Ex-
Parte Motion for the Issuance of a Writ of Attachment,
which the trial court granted. A copy of the writ of
attachment was served upon respondents and the
appointed sheriff levied real and personal properties of
respondents. Thereafter, summons, together with a
copy of the complaint, was served upon respondents.
Respondents filed a Motion to Discharge Writ of
Attachment (“Motion to Discharge”) because, among
others the writ of attachment was issued before the
summons was received by the respondents.
The trial court denied respondents’ Motion to
Discharge, which respondents moved for
reconsideration. Via Petition for Certiorari, the Court of
Appeals found grave abuse of discretion on the part of
the trial court in denying respondents’ Motion to
Discharge, and ordered the lifting of the writ of
attachment.
Issue: Whether or not the lifting of the writ of
attachment is proper.
Held: Yes. The Supreme Court sustained the lifting of
the writ of attachment. The grant of the provisional
remedy of attachment involves three stages: first, the
court issues the order granting the application; second,
the writ of attachment issues pursuant to the order
granting the writ; and third, the writ is implemented. 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 and authority to act in any manner
against the defendant. Any order issuing from the Court
will not bind the defendant.
Thus, it is indispensable not only for the
acquisition of jurisdiction over the person of the
defendant, but also upon consideration of fairness, to
apprise the defendant of the complaint against him and
the issuance of a writ of preliminary attachment and the
grounds therefor that prior or contemporaneously to the
serving of the writ of attachment, service of summons,
together with a copy of the complaint, the application for
attachment, the applicant’s affidavit and bond, and the
order must be served upon him.
In the instant case, assuming arguendo that
the trial court validly issued the writ of attachment on
November 15, 2002, which was implemented on
November 19, 2002, it is to be noted that the summons,
together with a copy of the complaint, was served only
on November 21, 2002.
Moreover, again assuming arguendo that the writ of
attachment was validly issued, although the trial court
later acquired jurisdiction over the respondents by
service of the summons upon them, such belated service
of summons on respondents cannot be deemed to have
cured the fatal defect in the enforcement of the writ. The
trial court cannot enforce such a coercive process on
respondents without first obtaining jurisdiction over their
person. The preliminary writ of attachment must be
served after or simultaneous with the service of
summons on the defendant whether by personal service,
substituted service or by publication as warranted by the
circumstances of the case. The subsequent service of
summons does not confer a retroactive acquisition of
jurisdiction over her person because the law does not
allow for retroactivity of a belated service.
VII. When attachment may be enforced without
service of summons
 Prior or contemporaneous service of summons may
NOT apply when:
(a) Summons could not be served personally or
by substituted service;
(b) Defendant is a resident of the Philippines
temporarily absent therefrom;
(c) Defendant is a non-resident; and
(d) The action is one in rem or quasi in rem.
Page 194
Civil Procedure
ESGUERRA NOTES
Valmonte v. Court of Appeals (1996)
Facts: Respondent Rosita Dimalanta (“Rosita”) filed a
complaint for partition of real property and accounting of
rentals against petitioners Lourdes Valmonte (“Lourdes”)
and Alfredo Valmonte (“Alfredo”) before the Regional
Trial Court of Manila, Branch 48. Summons was served
upon Alfredo, who accepted the summons insofar as he
was concerned, but refused to accept the summons for
his wife, Lourdes, who was abroad, on the ground that
he was not authorized to accept the process on her
behalf.
Thereafter, Alfredo file dhis Answer with
Counerclaim. Lourdes, however, did not file her Answer.
Thus, Rosita moved to declare her in default, which the
trial court denied. Rosita’s motion for reconsideration
having likewise been denied, she filed a petition for
certiorari before the Court of Appeals, which granted
said petition and declared Lourdes in default.
Issue: Whether or not Lourdes was validly served with
summons.
Held: No. The Supreme Court ruled that there was no
valid service of process on Lourdes. Rosita’s
action which is for partition and accounting under Rule
69, is in the nature of an action quasi in rem. Such an
action is essentially for the purpose of affecting the
defendant's interest in a specific property and not to
render a judgment against him.
As Lourdes is a nonresident who is not found in
the Philippines, service of summons on her must be in
accordance with Rule 14, §17. Such service, to be
effective outside the Philippines, must be made either
(1) by personal service; (2) 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 should be sent
by registered mail to the last known address of the
defendant; or (3) in any other manner which the court
may deem sufficient.
Since in the case at bar, the service of
summons upon Lourdes was not done by means of any
of the first two modes, the question is whether the
service on her attorney, Alfredo, can be justified under
the third mode, namely, "in any . . . manner the court
may deem sufficient."
The Supreme Court hold it cannot. This mode
of service, like the first two, must be made outside the
Philippines, such as through the Philippine Embassy in
the foreign country where the defendant resides.
Moreover, there are several reasons why the service of
summons on Alfredo cannot be considered a valid
service of summons on Lourdes. In the first place,
service of summons on Alfredo was not made upon the
order of the court as required by Rule 14, §17 and
certainly was not a mode deemed sufficient by the court
which in fact refused to consider the service to be valid
and on that basis declare Lourdes in default for her
failure to file an answer.
In the second place, service in the attempted
manner on petitioner was not made upon prior leave of
the trial court as required also in Rule 14, §17. As
provided in §19, such leave must be applied for by
motion in writing, supported by affidavit of the plaintiff
or some person on his behalf and setting forth the
grounds for the application.
Finally, and most importantly, because there
was no order granting such leave, Lourdes was not
given ample time to file her Answer which, according to
the rules, shall be not less than sixty (60) days after
notice. It must be noted that the period to file an
Answer in an action against a resident defendant differs
from the period given in an action filed against a
nonresident defendant who is not found in the
Philippines. In the former, the period is fifteen (15) days
from service of summons, while in the latter, it is at
least sixty (60) days from notice.
Strict compliance with these requirements
alone can assure observance of due process. That is why
in one case, although the Court considered publication in
the Philippines of the summons (against the contention
that it should be made in the foreign state where
defendant was residing) sufficient, nonetheless the
service was considered insufficient because no copy of
the summons was sent to the last known correct
address in the Philippines.
VIII. Discharge of attachment
1. Upon giving counterbond
1997 Rules on Civil Procedure, Rule 57
Section 12. Discharge of attachment upon giving
counterbond. – At anytime after an order of
attachment has been granted, the party whose
property has been attached, or the person appearing
on his behalf, may, upon reasonable notice to the
applicant, apply to the judge who granted the order, or
to the judge of the court in which the action is pending,
for an order discharging the attachment wholly or in
part on the security given. The judge shall, after
hearing, order the discharge of the attachment if a
cash deposit is made, or a counterbond executed to the
attaching creditor is filed, on behalf of the adverse
party, with the clerk or judge of the court where the
application is made, in an amount equal to the value of
the property attached as determined by the judge, to
secure the payment of any judgment that the attaching
creditor may recover in the action. Upon the filing of
such counter-bond, copy thereof shall forthwith be
served on the attaching creditor or his lawyer. 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 the person appearing on his behalf, the deposit or
counter-bond aforesaid standing in place of the
property so released. Should such counterbond 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 creditor may apply for a
new order of attachment.
Page 195
 Civil Procedure
ESGUERRA NOTES
2. On other grounds
1997 Rules on Civil Procedure, Rule 57
Section 13. Discharge of attachment for improper
or irregular issuance. - The party whose property has
been attached may also, at any time either before or
after the release of the attached property, or before
any attachment shall have been actually levied, upon
reasonable notice to the attaching creditor, apply to the
judge who granted the order, or to the judge of the
court in which the action is pending, for an order to
discharge the attachment on the ground that the same
was improperly or irregularly issued. If the motion be
made on affidavits on the part of the party whose
property has been attached, but not otherwise, the
attaching creditor may oppose the same by counter-
affidavits or other evidence in addition to that on which
the attachment was made. After hearing, the judge
shall order the discharge of the attachment if it appears
that it was improperly or irregularly issued and the
defect is not cured forthwith.
3. Judgment rendered against attaching party –
dismissal of principal action
1997 Rules on Civil Procedure, 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 the sheriff, under the order of
attachment, and all property attached remaining in any
such sheriff’s hands, shall be delivered to the party
against whom attachment was issued, and the order of
attachment discharged.
IX. Third party claim
1. Same procedure as in Sec.16, Rule 39 in
levy of property on execution claimed by
third party
 Third person may avail of the remedy called
terceria by making an affidavit of his title
thereto or his right to possession thereof,
stating the grounds of such right or title. The
affidavit must be served upon the sheriff and
the attaching party.
 Upon service of the affidavit upon him, the
sheriff shall not be bound to keep the property
under attachment except if the attaching party
files a bond approved by the court. The sheriff
shall not be liable for damages for the taking
or keeping of the property, if such bond shall
be filed.
 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 v. Provincial Sheriff
of La Union, G.R. No. L-4869, 26 May 1952)
Traders Royal Bank v. Intermediate Appellate
Court (1984)
Facts: Traders Royal Bank (“TRB”) filed a complaint for
the recovery of a sum of money, docketed as Civil Case
No. 9894, against Remco Alcohol Distillery, Inc.
(“REMCO”) before the RTC,Branch 110, Pasay City
(“RTC-Pasay”), and was able to obtain a writ of
preliminary attachment against the assets and
properties of REMCO. Pursuant to said writ, Deputy
Sheriff Edilberto Santiago (“Sheriff Santiago”) levied
among others about 4,600 barrels of aged or rectified
alcohol found inside REMCO’s premises. A third party
claim was filed by respondent La Toñdena, Inc. (“La
Toñdena”), claiming ownership over the attached
property. Thereafter, La Toñdena filed a complaint-in-
intervention in Civil Case No. 9894. La Toñdena also
filed a “Motion to Wirthdraw” praying that it be allowed
to withdraw alcohol and molasses from REMCO’s
Distillery Plant, which motion was granted by RTC-
Pasay.
Thereafter, La Toñdena filed a complaint before
the RTC, Branch 9, Malolos, Bulacan (“RTC Malolos”),
docketed as Civil Case No. 7003, in which it asserted its
claim of ownership over the properties attached in Civil
Case No. 9894, and likewise prayed for the issuance of a
writ of preliminary attachment. The RTC-Malolos
declared La Toñdenato be the owner of the disputed
alcohol and granted the latter’s application for injunctive
relief. Thus, Sheriff Victorino Evangelista (“Sheriff
Evangelista”) issued on Sheriff Santiago of RTC-Pasay
the corresponding writ of preliminary injunction.
RTC-Pasay ordered Sheriff Santiago to enforce the writ
of preliminary attachment issued by said court.
Issue: Whether or not it was proper for the RTC-
Bulacan to issue an injunction enjoining the sale of
property previously levied upon by Sheriff Santiago
pursuant to a writ of attachment issued by RTC-Pasay.
Held: There is no question that the action filed by La
Tondeña, as third-party claimant, before the RTC-
Bulacan in Civil Case No. 7003 wherein it claimed
ownership over the property levied upon by Pasay City
Deputy Sheriff Santiago is sanctioned by Section 14,
Rule 57 of the Rules of Court. Thus —
If property taken be 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 officer while the latter has possession
of the property, and a copy thereof upon the
attaching creditor, the officer shall not be
bound to keep the property under the
attachment, unless the attaching creditor or
his agent, on demand of said officer, secures
aim against such claim by a bond in a sum not
greater than the value of the property
attached. In case of disagreement as to such
value, the same shall be decided by the court
issuing the writ of attachment. The officer shall
not be liable for damages, for the taking or
keeping of such property, to any such third-
party claimant, unless such a claim is so made
and the action upon the bond brought within
one hundred and twenty (120) days from the
Page 196
 Civil Procedure
ESGUERRA NOTES
date of the filing of said bond. But nothing
herein contained shall prevent such third
person from vindicating his claim to the
property by proper action ...
The foregoing rule explicitly sets forth the
remedy that may be availed of by a person who claims
to be the owner of property levied upon by attachment,
viz: to lodge a third- party claim with the sheriff, and if
the attaching creditor posts an indemnity bond in favor
of the sheriff, to file a separate and independent action
to vindicate his claim (Abiera vs. Court of Appeals, 45
SCRA 314). And this precisely was the remedy resorted
to by La Tondeña when it filed the vindicatory action
before RTC-Bulacan.
Generally, the rule that no court has the power
to interfere by injunction with the judgments or decrees
of a concurrent or coordinate jurisdiction having equal
power to grant the injunctive relief sought by injunction,
is applied in cases where no third-party claimant is
involved, in order to prevent one court from nullifying
the judgment or process of another court of the same
rank or category, a power which devolves upon the
proper appellate court. The purpose of the rule is to
avoid conflict of power between different courts of
coordinate jurisdiction and to bring about a harmonious
and smooth functioning of their proceedings.
It is further argued that since La Tondeña, had
voluntarily submitted itself to the jurisdiction of RTC-
Pasay by filing a motion to intervene in Civil Case No.
9894-P, the denial or dismissal thereof constitutes a bar
to the present action filed before RTC-Bulacan. The
Supreme Court did not sustain this view. Suffice it to
state that intervention as a means of protecting the
third-party claimant's right in an attachment proceeding
is not exclusive but cumulative and suppletory to the
right to bring an independent suit. The denial or
dismissal of a third-party claim to property levied upon
cannot operate to bar a subsequent independent action
by the claimant to establish his right to the property
even if he failed to appeal from the order denying his
original third-party claim.
X. Satisfaction of judgment out of property
attached
1997 Rules on Civil Procedure, Rule 57
Section 15. Satisfaction of judgment out of property
attached; return of officer. — If judgment be recovered
by the attaching creditor and execution issue thereon,
the sheriff or other proper officer 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 creditor the
proceeds of all sales of perishable or other property
sold in pursuance of the order of the judge, or so much
as shall be necessary to satisfy the judgment;
(b) If any balance remain due, by selling so much
of the property, real or personal, as may be necessary
to satisfy the balance, if enough for that purpose
remain in the officer'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 debtor,
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.
XI. Claims for damages on account of improper,
irregular or excessive attachment
 Damages may be awarded on account of
improper, irregular or excessive attachment.
The application for damages must be filed (a)
before the trial, or (b) before appeal is
perfected, or (c) before the judgment becomes
executory. There must be notice to the
attaching party and his surety or sureties.
(Sec. 20, Rule 57)
 Where there is wrongful attachment, the
attachment defendant may recover actual
damages even without proof that the
attachment plaintiff acted in bad faith in
obtaining the attachment. However, if it is
alleged and established that the attachment
was not merely wrongful but also malicious,
the attachment defendant may recover moral
damages and exemplary damages as well.
(Spouses Yu v. Ngo Yet Te, G.R. No. 155868, 6
February 2007)
 The damages may be awarded only upon
proper hearing. The judgment for damages
shall be included in the judgment of the main
case. (Sec. 20, Rule 57)
Pacis v. COMELEC (1969)
Facts: After promulgation of the 28 September 1968
main decision of the Supreme Court Court in this case
confirming the 11 May 1968 resolution of the
Commission on Elections, dissolving the writ of
preliminary injunction issued by this Court on June 11,
1968 and declaring valid and subsisting the canvass of
votes and the proclamation of private respondent
Anatacio Negre as Mayor-elect of the Municipality of
Sanchez Mira, Province of Cagayan, the latter, through
counsel, moved for assessment and award of damages
sustained by him as a result of the preliminary
injunction issued in favor of petitioner Pantaleon Pacis,
upon the P1,000 cash bond deposited with this Court by
said petitioner, pursuant to Section 9, Rule 58, in
connection with Section 20, Rule 57, of the Rules of
Court.
Petitioner opposed, pleaded good faith. A
hearing was conducted by an officer of the Court to
ascertain the amount of damages.
The unrebutted evidence is that private
respondent was enjoined from performing his duties as
Mayor of Sanchez Mira from June 19, 1968, after receipt
of the injunctive writ on June 18, 1968, until October
17, 1968 when judgment in this case became final and
executory, thus depriving him of four months' salaries at
P500 per month totalling a little less than P2,000.
Page 197
Civil Procedure
ESGUERRA NOTES
Issue: Whether or not respondent can validly claim
damages in this case.
Held: It may be well to state at this point that the
present is a motion of private respondent for
assessment and award of damages upon the P1,000
cash bond. The reglementary period within which to file
the appropriate motion is before the main judgment
becomes executory.
The judgment dissolving the preliminary
injunction issued in favor of petitioner and dismissing
the main cause became final and executory on October
17, 1968. The motion herein was filed on October 16. It
can be seen from the procedure laid out in the Rules of
Court for proceeding against an injunction bond that the
motion of private respondent barely missed the
statutory period. Section 9 of Rule 58 on preliminary
injunctions directs that the procedure in Section 20 of
Rule 57 on attachment be followed, viz:
SEC. 20. Claim for damages on account of illegal
attachment. — If the judgment on the action be
in favor of the party against whom attachment
was issued, he may recover, upon the bond
given or deposit made by the attaching creditor,
any damages resulting from the attachment.
Such damages may be awarded only upon
application and after proper hearing, and shall
be included in the final judgment. The
application must be filed before the trial or
before appeal is perfected or before the
judgment becomes executory, with due notice
to the attaching creditor and his surety or
sureties, setting forth the facts showing his right
to damages and the amount thereof.
If the judgment of the appellate court be
favorable to the party against whom the
attachment was issued, he must claim damages
sustained during the pendency of the appeal by
filing an application 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.
The foregoing remedy has been said to be
exclusive such that no claim for recovery of damages
may be filed after the judgment has become final and
executory.
Good faith on petitioner’s part in obtaining the
injunction because the main cause was then undecided
by this Court, petitioner deposits, is fatal to any claim
for damages.
The foregoing question entails an expansive discussion
on the principles governing recovery of damages
sustained as a result of a wrongfully obtained injunction.
The practice of issuing restraining orders (used here in
its generic term as referring to all types of "status
quo"orders) started as a common-law equitable relief in
the English courts to preserve the status quo of a case
pending the final determination of the relative rights of
the parties. Since these orders cause damages to the
restrained party if his rights were later affirmed — more
than what would be occasioned him as an ordinary party
litigant if no restraining order were issued — a system
by which he was recompensed evolved.
Damages sustained as a result of a wrongfully
obtained injunction may be recovered upon the
injunction bond required to be filed with the court. This
principle of recovery of damages has been recognized in
our jurisdiction in the early case of Molina vs.
Somes (1913), 24 Phil. 49, 61-62.
The filing of a bond before the issuance of an injunction
has been made a reglementary requisite under the same
rule which permits the issuance of an injunction. It is
this same rule therefore which must first be examined in
determining whether good faith is a proper defense
against a claim for damages.
The statutory undertaking of the bond is that it
shall answer for all damages which the party to be
restrained may sustain by reason of the injunction "if
the court should finally decide that the plaintiff was not
entitled thereto." Malice or lack of good faith is not an
element of recovery on the bond. This must be so,
because to require malice as a prerequisite would make
the filing of a bond a useless formality. Too, it is
axiomatic that probable cause is necessary before an
injunction may be ordered, and if good faith were
tenable as a defense, it would rule out practically all
relief from actual damages sustained as a result of an
injunction.
Jurisprudence, evolved from jurisdictions
where this equitable relief originated and expanded,
supports the view we just expressed. The holding is that
the dissolution of the injunction, even if the injunction
was obtained in good faith, "amounts to a determination
that the injunction was wrongfully obtained and a right
of action on the injunction bond immediately accrues to
the defendant." 4 The dissolution of the injunction
because of the failure of petitioner's main cause of
action, therefore, is an "actionable wrong," so to speak,
for the purpose of recovery upon the bond.
The foregoing background paves the way for a
discussion whether private respondent can recover
damages in excess of the amount of the bond.
As stated, this present proceeding is upon a
motion for assessment of damages on the bond. There is
nothing in the Rules of Court which allows recovery of
damages other than upon the bond pledged by the party
suing for an injunction.
Recovery of private respondent must therefore
be limited to the amount of the bond. Where the bond is
insufficient in amount, the law expressly gives the party
affected the recourse of excepting thereto and provides
for the dissolution of the injunction if "a bond sufficient
in amount with sufficient sureties approved after
justification is not filed forthwith."
Because petitioner's bond is only for
P1,000.00, it will not be sufficient to satisfy even the
actual damages suffered by private respondent. So it is
that there is no imperative need to discuss petitioner's
assertion that only actual damages may be allowed.
The Court thus ruled that private respondent
Atanacio Negre is entitled to recover only upon the
P1,000 cash deposit of petitioner.
Page 198
Civil Procedure
ESGUERRA NOTES
Rule 58
Preliminary Injunction
1997 Rules on Civil Procedure, Rule 58
Section 1. Preliminary Injunction defined; – 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.
Injunction as a main action
Hernandez v. NAPOCOR (2006)
Facts: On 9 March 2000, petitioners filed a Complaint
for Damages with Prayer for the Issuance of a
Temporary Restraining Order and/or a Writ of
Preliminary Injunction against NAPOCOR. Harping on the
hazardous effects of exposure to electromagnetic
radiation to the health and safety to themselves and
their families, petitioners, through the instant case,
sought what they had failed to achieve through amicable
means with NAPOCOR and prayed, inter alia, for
damages and the relocation of the transmission lines to
Lawton Avenue, Fort Bonifacio.
On 13 March 2000, Judge Francisco B. Ibay
issued an order in Civil Case No. 00-352,
which temporarily restrained the respondent from
energizing and transmitting high voltage electric current
through the said project. By order of 15 March 2000,
the trial court extended the restraining order for 18
more days.
NAPOCOR filed a Petition for Certiorari with
Prayer for Temporary Restraining Order and Preliminary
Injunction with the Court of Appeals assailing the above
order by the trial court. Alluding to Presidential Decree
No. 1818 (1981), "Prohibiting Courts from Issuing
Restraining Orders or Preliminary Injunctions in Cases
Involving Infrastructure and Natural Resource
Development Projects of, and Public Utilities Operated
by, the Government, particularly Sec. 1, NAPOCOR
stalwartly sought the dismissal of the case on the
ground of lack jurisdiction.
In the interregnum, by order dated 3 April
2000, the trial court ordered the issuance of a writ of
preliminary injunction against NAPOCOR. The trial court
articulated that an injunction was necessary to stay
respondent NAPOCORs activation of its power lines due
to the possible health risks posed to the
petitioners. Asserting its jurisdiction over the case, the
trial court was of the view that Presidential Decree No.
1818 and jurisprudence proscribing injunctions against
infrastructure projects do not find application in the case
at bar because of the health risks involved.
The trial court, thus, enjoined the NAPOCOR
from further preparing and installing high voltage cables
to the steel pylons erected near petitioners homes and
from energizing and transmitting high voltage electric
current through said cables while the case is pending
final adjudication, upon posting of the bond amounting
to P5,000,000.00 executed to the effect that petitioners
will pay all the damages the NAPOCOR may sustain by
reason of the injunction if the Court should finally decide
that the petitioners are not entitled thereto.
In the challenged decision of 3 May 2000, the
Court of Appeals reversed the trial courts order. In the
Court of Appeals rationale, the proscription on
injunctions against infrastructure projects of the
government is clearly mandated by the above-quoted
Section 1 of Presidential Decree No. 1818, as reiterated
by the Supreme Court in its Circulars No. 2-91 and No.
13-93, dated 15 March 1991 and 5 March 1993,
respectively.
As their motion for reconsideration was met
with similar lack of success, petitioners, in a last attempt
at vindication, filed a petition for review with the
Supreme Court.
Held: For a writ of preliminary injunction to be issued,
the Rules do not require that the act complained of be in
violation of the rights of the applicant. Indeed, what the
Rules require is that the act complained of be probably
in violation of the rights of the applicant. Under the
Rules of Court, probability is enough basis for injunction
to issue as a provisional remedy, which is different from
injunction as a main action where one needs to establish
absolute certainty as basis for a final and permanent
injunction.
Nature and purpose of preliminary injunction
Sabalones vs. Court of Appeals (1994)
Facts: As a member of our diplomatic service assigned
to different countries during his successive tours of
duties, petitioner Samson T. Sabalones (the “petitioner”)
left to his wife, herein respondent Remedios Gaviola-
Sabalones (the “respondent”), the administration of
some of their conjugal, properties for fifteen years.
Petitioner retired as ambassador in 1985 and
came back to the Philippines but not to his wife and their
children. Four years later, he filed an action for judicial
authorization to sell a building and lot located at #17
Eisenhower St., Greenhills, San Juan, Metro Manila,
belonging to the conjugal partnership. He claimed that
he was sixty-eight years old, very sick and living alone
without any income, and that his share of the proceeds
of the sale to defray the prohibitive cost of his
hospitalization and medical treatment.
In her answer, respondent opposed the
authorization and filed a counterclaim for legal
separation. She alleged that the house in Greenhills was
being occupied by her and their six children and that
they were depending for their support on the rentals
from another conjugal property, a building and lot in
Forbes Park which was on lease to Nobumichi Izumi. She
also informed the court that despite her husband's
retirement, he had not returned to his legitimate family
and was instead maintaining a separate residence in
Don Antonio Heights, Fairview, Quezon City, with
Thelma Cumareng and their three children.
In her prayer, she asked the court to grant the
decree of legal separation and order the liquidation of
their conjugal properties, with forfeiture of her
husband's share therein because of his adultery. She
Page 199
Civil Procedure
ESGUERRA NOTES
also prayed that it enjoin the petitioner and his agents
from a) disturbing the occupants of the Forbes Park
property and b) disposing of or encumbering any of the
conjugal properties.
After trial, the judge found that petitioner had
indeed contracted a bigamous marriage on October 5,
1981, with Thelma Cumareng, to whom he had returned
upon his retirement in 1985 at a separate residence. The
court thus decreed the legal separation of the spouses
and the forfeiture of the petitioner's share in the
conjugal properties, declaring as well that he was not
entitled to support from his respondent wife.
This decision was appealed to the Court of
Appeals. Pendente lite, respondent wife filed a motion
for the issuance of a writ of preliminary injunction to
enjoin petitioner from interfering with the administration
of their properties in Greenhills and Forbes Park. She
alleged inter alia that he had harassed the tenant of the
Forbes Park property by informing him that his lease
would not be renewed. She also complained that
petitioner had disposed of one of their valuable conjugal
properties in the United States in favor of his paramour,
to the prejudice of his legitimate wife and children.
Petitioner opposed this motion and filed his
own motion to prevent his wife from entering into a new
contract of lease over the Forbes Park property with its
present tenant, or with future tenants, without his
consent. After hearing, the Court of Appeals, in an order
dated April 7, 1992, granted the preliminary injunction
prayed for by his wife.
Petitioner now assails this order, arguing that
since the law provides for a joint administration of the
conjugal properties by the husband and wife, no
injunctive relief can be issued against one or the other
because no right will be violated. He further notes that
the Court of Appeals failed to appoint an administrator
of the conjugal assets as mandated by Art. 61 of the
Code.
Held: The primary purpose of the provisional remedy of
injunction is to preserve the status quo of the things
subject of the action or the relations between the parties
and thus protect the rights of the plaintiff respecting
these matters during the pendency of the suit.
Otherwise, the defendant may, before final judgment,
do or continue doing the act which the plaintiff asks the
court to restrain and thus make ineffectual the final
judgment that may be rendered afterwards in favor of
the plaintiff. Injunction is primarily a preventive remedy.
Its province is to afford relief against future acts which
are against equity and good conscience and to keep and
preserve the thing in the status quo, rather than to
remedy what is past or to punish for wrongful acts
already committed. It may issue to prevent future
wrongs although no right has yet been violated.
Nature and purpose of preliminary injunction
Ulang v. Court of Appeals (1993)
Facts: On 8 February 1989, a motion for issuance of a
writ of execution was filed by Valentina Salazar before
the trial court in Civil Case No. 2380-0. On 6 March
1989, the motion was granted and a writ of execution
was issued. However, before the writ of execution could
be carried out, petitioner Roberto Ulang filed an "Urgent
Motion for Reconsideration and for Suspension of
Implementation of the Writ of Execution dated 6 March
1989." Due to the intervening death of Valentina
Salazar, a motion for substitution by her lone heir, Nelia
Salazar, was filed. On 8 May 1989, the lower court
issued two (2) orders in Civil Case No. 2380-0, one
granting the substitution of Valentina Salazar as party
plaintiff by her daughter Nelia Salazar and at the same
time denying Roberto Ulang's motion for reconsideration
and suspension of implementation of the writ of
execution, and the other allowing an Alias Writ of
Execution to issue. Petitioner filed a petition
for certiorari to annul these two (2) orders before the
Court of Appeals, docketed as CA-G.R. SP No. 17938.
The petition was dismissed for lack of merit.
On 17 July 1990, petitioner Ulang filed a suit
for foreclosure of mortgage with preliminary injunction
and damages against Nelia Salazar and the Sheriff of
Branch LXII of the Regional Trial Court of Olongapo City.
The new case was docketed as Civil Case No. 383-0-90.
Both cases (Civil Case No. 2380-0 and Civil Case No.
383-0-90) pertain to one and the same property.
On 17 July 1990, or on the day the suit for
foreclosure of mortgage was filed, the court a quo issued
a restraining order enjoining Nelia Salazar and the
respondent sheriff from ejecting Roberto Ulang pending
the hearing of his application for a writ of preliminary
injunction.
On 20 August 1990, the court a quo issued the
Order denying Ulang's prayer for a writ of preliminary
injunction on the ground that the foreclosure proceeding
was still pending and the issue as to whether petitioner
is justified to foreclose the mortgage had not yet been
determined. His motion for reconsideration was likewise
denied on 18 September 1990 for being moot and
academic because on 28 August 1990, respondent
sheriff succeeded in evicting petitioner Ulang from the
premises in question and placed private respondent in
possession thereof pursuant to the second alias writ of
execution issued in Civil Case No. 2380-0, as evidenced
by a Certificate of Delivery and Certificate of
Acceptance.
On 29 September 1990, petitioner filed before
respondent court a Petition for Certiorari under Rule 65
of the Rules of Court with prayer for the issuance of a
Writ of Preliminary Mandatory Injunction directed
against the issuance by Judge Esther Nobles Dans of the
abovesaid Orders dated 20 August 1990, on the ground
of grave abuse of discretion amounting to lack of
jurisdiction. The case was docketed as CA-G.R. SP No.
22944, where the resolution rendered on 28 February
1991 is now the subject of this appeal.
As aforesaid, the respondent Court of Appeals
denied due course to the petition and dismissed the
same. The respondent court likewise reiterated the
rulings in AC-G.R. CV No. 01089 and CA-G.R. SP No.
17938 to the effect that the deed of sale between the
deceased Valentina Salazar and Brigida Julian was
absolute and the transfer of ownership unto the
deceased Salazar was not conditioned upon full payment
of the purchase price.
Petitioner interposed the present appeal on the
main contention that respondent court erred in ruling
that once a judgment becomes final, the prevailing party
is entitled as a matter of right to a writ of execution
because such ruling admits of an exception.
Page 200
Civil Procedure
ESGUERRA NOTES
Held: Injunction, whether preliminary or final, is not
designed to protect contingent or future rights. An
injunction will not issue to protect a right not in esse and
which may never arise, or to restrain an act which does
not give rise to a cause of action. The complainant's
right or title, moreover, must be clear and
unquestioned, for equity, as a rule, will not take
cognizance of suits to establish title, and will not lend its
preventive aid by injunction where the complainant's
title or right is doubtful or disputed. The possibility of
irreparable damage, without proof of violation of an
actual existing right, is no ground for an injunction,
being mere damnum absque injuria. Injunction will not
lie to defeat execution of final judgment so as to take
property out of successful party’s possession.
Which court may issue writ
1997 Rules on Civil Procedure, 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.
Territorial jurisdiction to issue writ
Decano v. Edu (1980)
Facts: On September 12, 1962, the then
Undersecretary of Public Works and Communications
issued to Federico Decano, herein petitioner-appellee, a
temporary appointment to the position of janitor in the
Motor Vehicles Office, Dagupan City Agency, with
compensation at the rate of P1,440.00 per annum. The
appointment having been approved by the
Commissioner of Civil Service, the said appointee
assumed office on September 10, 1962 and he served
therein for almost four years, or until April 29, 1966
when herein respondent-appellant Cipriano Posadas, as
Acting Registrar, Land Transportation Commission,
Dagupan City, received a telegram from respondent-
appellant Romeo F. Edu, in his then capacity as Acting
Commissioner of Land Transportation Commission
(LTC), terminating his (Decano's) services effective as of
the close of business on that day.
Shortly thereafter, the aggrieved petitioner-
appellee filed before the Court of First Instance of
Pangasinan a petition for "Mandamus and Injunction"
claiming that the aforementioned officials of the LTC
acted without power and in excess of authority in
removing him from the service, and therefore praying of
the court to declare as null and void the order for his
removal, to declare him entitled to the position, to
compel his reinstatement and payment of his regular
salary, and to enjoin, preliminary, and then
permanently, respondents from disturbing, molesting or
otherwise ousting him from his position as janitor.
As prayed for, a writ of preliminary injunction
was issued by the trial court at the commencement of
the proceedings commanding respondents "to desist and
refrain from disturbing, molesting or otherwise ousting
the petitioner from his position as janitor in the Land
Transportation Commission, Dagupan City Agency, and
to pay the petitioner his corresponding salary from the
date of notice of said preliminary injunction, until further
orders from the Court."
After trial, while agreeing with respondent Edu
that petitioner's appointment as janitor was temporary
and therefore the latter could be ousted from his
position at any time with or without cause, the lower
court nevertheless declared in its judgment of October
29, 1968 that petitioner's removal was null and void
upon the ground that under the law, respondent
Commissioner of Land Transportation was not the
appointing authority insofar as the position of petitioner
and another minor positions in his office were
concerned; and thus lacking the power of appointment,
said respondent had neither the power of removal.
Held: In seeking reversal of the trial court's decision,
respondents make capital of the fact that the petition for
mandamus with injunction was filed in the Court of First
Instance of Pangasinan while respondent Edu holds
office in Quezon City which, they claim, is beyond the
territorial jurisdiction of the said court. Respondents cite
the long line of cases from the 1960 case of Acosta vs.
Alvendia where this Court, pursuant to sec. 44 (h) of the
Judiciary Act, jointly or alternatively with sec. 4, Rule 65
of the Rules of Court and/or section 2 of Rule 58, ruled
that a court of first instance has no jurisdiction to
require or control the execution of an act committed
beyond the limits of its territorial jurisdiction. These
cases invariably involved petitions for writs of injunction
seeking to control the actions of courts or officers
outside the territorial jurisdiction of the respondent
courts of first instance where said petitions had been
filed. The Acosta ruling of non-jurisdiction does not
apply, however, to the facts and circumstances at bar.
Here, petitioner seeks primarily the annulment
of the dismissal order issued by respondent Edu,
mandamus and injunction being then merely coronary
remedies to the main relief sought, and what is prayed
to be enjoined, as in fact the trial court did enjoin by
preliminary injunction, is the implementation of the
termination order against the petitioner. It is true that
the order of dismissal was issued by respondent Edu,
but it was to be implemented in Dagupan City by his
subordinate officer, respondent Acting Registrar of the
LTC stationed at Dagupan City. Insofar, therefore, as
respondent Edu is concerned, the order terminating the
services of respondent was a fait accompli and this he
had done without authority, as earlier discussed. The
injunction is question, consequently, must be taken only
to restrain the implementation of respondent Edu's order
by his co-respondent whose official station at Dagupan
City is within the territorial boundaries of the trial court's
jurisdictional district.
Thus, in Director of the Bureau of
Telecommunications vs. Aligaen, et al., 9 in which the
acts sought to be controlled by "Injunction with
Preliminary Injunction" were relative to the
establishment of a local telephone system being done
within the territorial boundaries of the judicial district of
the Court of First Instance of Roxas, the Court similarly
upheld the jurisdiction of the Court of First Instance of
Roxas over the petition, although two of the
respondents named therein the Director of the Bureau of
Telecommunications, and the Regional Superintendent
of Region IV of the Bureau of Telecommunications —
had their official stations at Manila and Iloilo City,
respectively.
Page 201
Civil Procedure
ESGUERRA NOTES
As in the above-cited case of Aligaen, the
national official stationed at Quezon City, namely,
respondent Commissioner Edu, was impleaded as
respondent in the Pangasinan court for a complete
determination of the issues involved, the legality of
Edu's order of dismissal being the pivotal issue to
determine the merits of the mandamus and injunction
aspects of the petition. In other words, Mr. Edu was
joined as respondent not for injunction purposes but
mainly for testing the legality of his dismissal order and
his transmittal thereof to his correspondent registrar at
Dagupan City to implement the same and terminate the
services of the petitioner in Dagupan City.
Grounds for issuance
1997 Rules on Civil Procedure, Rule 58
Section 3. 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 the performance
of an act or acts, either for a limited period or
perpetually;
(b)That the commission, continuance or non-
performance of the act or acts complained of during
the litigation would probably work injustice to the
applicant; or
(c)That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done, some act or acts probably in
violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to
render the judgment ineffectual
Acts consummated may not be enjoined
Versoza v. Court of Appeals (1998)
Facts: Private respondent Uson was the owner of a
parcel of land which she mortgaged to Versoza. She
failed to pay the loan, thus, Versoza caused the
foreclosure of the land. To prevent the Office of the
Provincial Sheriff from proceeding with the foreclosure
sale, and while she was still in possession of the subject
land, Uson filed with the RTC a complaint against
Verzosa and the Provincial Sheriff for annulment of
mortgage with prayer for the issuance of a writ of
preliminary injunction (the “Complaint”). This was
dismissed for not having been verified by Uson. On
motion for reconsideration, she was allowed to file an
amended complaint, to include the required verification
(the “Amended Complaint”). Meanwhile, during the
period between the dismissal of the Complaint and the
filing of the Amended Complaint, Versoza proceeded
with the foreclosure, and the land was sold to the
highest bidder. After the foreclosure sale was
completed, and the title to the property transferred to
Martinez, the court granted Uson’s prayer for the
issuance of a writ of preliminary injunction and directed
Versoza to cease and desist from entering, making
constructions and performing any act of possession or
ownership over the land.
Versoza argued that the status quo ante which
the writ of preliminary injunction must refer to was the
sale of the land to Martinez. Versoza argued that the
relief of preliminary injunction cannot apply to
consummated acts.
Issue: From what point should a status quo ante be
reckoned if the original complaint was amended to
include the proper verification of the complainant?
Held: The status quo ante refers to situation when the
Complaint was filed. The status quo is the last actual
peaceful uncontested situation which precedes a
controversy, and its preservation is the office of an
injunctive writ. In this case, Uson although the
Complaint was subsequently amended, the controversy
began when the first Complaint was filed. Further, the
amendment did not include a new or different cause of
action or demand so as to consider the Complaint
entirely superseded.
As to the issue of supposedly enjoining a
consummated act, the same is without merit. Uson was
still the owner and was in possession of the property at
the time the Complaint was filed. The rule is that a court
should not by means of preliminary injunction transfer
the property in litigation from the possession of one
party to another where the legal title is in
dispute and the party having possession asserts owners
hip thereto. When private respondent filed the original
Complaint, she had title to and possession of the
property and was asserting ownership thereto.
Where the acts have been performed prior to
the filing of the injunction suit, the general rule is that
consummated acts can no longer be restrained by
injunction. However, where the acts are performed after
the injunction suit is brought, a defendant may not as a
matter of right proceed to perform the acts sought to be
restrained and then be heard to assert in the suit that
the injunction will not lie because he has performed
these acts before final hearing has been had, but after
the beginning of the action. A defendant thus acts at his
peril. It has been held that the general rule of law is
that, where a defendant completes, after the beginning
of an action, the act thereby sought to be restrained,
and before the issue of any final order or decree,
the court has the power to, and may, compel, by a
mandatory injunction, the restoration of the former
condition of things and thereby prevent the giving of an
advantage by reason of the wrongful act. And where a
defendant does an act thus sought to be restrained, he
proceeds at his peril, and the court in which the action
is pending may compel a restoration of the former
status or grant to the plaintiff such relief as may be
proper.
When injunction is improper
Tay Chun Suy v. Court of Appeals (1994)
Facts: Sta. Clara Lumber Co., Inc. (SCLC), obtained a
loan from private respondent Development Bank of the
Philippines (DBP). As security for the loan, SCLC
mortgaged some of its properties, among which was a
vessel, MV Sta. Clara I. Upon SCLC's failure to pay the
loan, the mortgage was foreclosed. On 18 August 1982,
the Clerk of Court and Provincial Sheriff Ex-Officio of
Sultan Kudarat conducted an auction sale and sold the
vessel to DBP. He thereafter issued a certificate of sale
dated 18 August 1982 in favor of DBP. However, DBP
Page 202
Civil Procedure
ESGUERRA NOTES

did not register with the Philippine Coast Guard the Laws prohibiting injunction
mortgage; neither the foreclosure nor the auction sale.
 P.D. No. 385 - Requiring Government Financial
In 1986, the MV Sta. Clara I was again Institutions to Foreclose Mandatorily All Loans qith
subjected to foreclosure by petitioner to satisfy a Arrearages, Including Interest and Charges Amounting
judgment against SCLC.
to at least Twenty (20%) Percent of the Total
Upon being informed of the execution sale to Outstanding Obligation (31 January 1974)
petitioner, DBP filed a complaint for annulment of the o Section 2. No restraining order, temporary or
execution sale, recovery of possession, damages and permanent injunction shall be issued by the court
attorney's fees with prayer for restraining order and against any government financial institution in any
preliminary injunction. Petitioner moved to dismiss the action taken by such institution in compliance with the
complaint for alleged lack of jurisdiction, cause of action mandatory foreclosure provided in Section 1 hereof,
and/or legal personality to sue on the part of DBP. The
whether such restraining order, temporary or permanent
court denied the motion to dismiss but granted DBP's
prayer for a writ of preliminary injunction. Petitioner injunction is sought by the borrower(s) or any third
moved for reconsideration of the denial but said motion party or parties, except after due hearing in which it is
was likewise denied. established by the borrower and admitted by the
government financial institution concerned that twenty
In 1987, the trial court issued a decision percent (20%) of the outstanding arrearages has been
which, among other matters, declared that DBP was the
paid after the filing of foreclosure proceedings.
lawful owner of MV Sta. Clara I and that the public
auction sale conducted and the resultant certificate of
In case a restraining order or injunction is
sale in favor of petitioner were null and void.
issued, the borrower shall nevertheless be legally
obligated to liquidate the remaining balance of the
In questioning the issuance of the writ of
arrearages outstanding as of the time of foreclosure,
preliminary injunction issued by the court in favor of
plus interest and other charges, on every succeeding
DBP, petitioner vigorously maintains that the failure of
thirtieth (30th) day after the issuance of such
DBP to register its title to MV Sta. Clara I with the
restraining order or injunction until the entire arrearages
Philippine Coast Guard is fatal to its claim of ownership.
have been liquidated. These shall be in addition to the
Petitioner also assails the jurisdiction of the trial court to
payment of amortization currently maturing. The
issue the writ.
restraining order or injunction shall automatically be
dissolved should the borrower fail to make any of the
Issue: Whether DBP’s failure to register its title over the
above-mentioned payments on due dates, and no
vessel is fatal to its claim for ownership, such that it
restraining order or injunction shall be issued thereafter.
cannot avail of the relief of preliminary injunction
This shall be without prejudice to the exercise by the
government financial institutions of such rights and/or
Held: No. Petitioner’s contention was already denied by
remedies available to them under their respective
the Supreme Court’s decision in G.R. No. 78383, where
charters and their respective contracts with their
it held in part that: “A certificate of registration of
debtors, nor should this provision be construed as
ownership of a vessel is only presumptive evidence that
restricting the government financial institutions
the registered owner has a legal title to the vessel.
concerned from approving, solely at its own discretion,
DBP's failure to register with the Philippine Coast Guard
any restructuring, recapitalization, or any other
its prior acquisition of the vessel is not fatal to its
arrangement that would place the entire account on a
ownership of said vessel, vis-a-vis petitioner herein, who
current basis, provided, however, that at least twenty
similarly failed to register the alleged subsequent sale of
percent (20%) of the arrearages outstanding at the time
the vessel to himself in an execution sale.”
of the foreclosure is paid.
The general rule that no court has the power to
All restraining orders and injunctions existing
interfere by injunction with the judgments or decrees of
as of the date of this Decree on foreclosure proceedings
another court with concurrent or coordinate jurisdiction
filed by said government financial institutions shall be
possessing equal power to grant injunctive relief, applies
considered lifted unless finally resolved by the court
only when no third-party claimant is involved. When
within sixty (60) days from date hereof.
a third-party, or a stranger to the action, asserts a claim
over the property levied upon, the claimant may
 P.D. No. 605 - Banning the Issuance by Courts of
vindicate his claim by an independent action in the
proper civil court which may stop the execution of the Preliminary Injunctions in Cases Involving Concessions,
judgment on property not belonging to the judgment Licenses, and Other Permits Issued by Public
debtor. Administrative Officials or Bodies for the Exploitation of
Natural Resources (12 December 1974)

o Section 1. No court of the Philippines shall have

jurisdiction to issue any restraining order, preliminary
injunction or preliminary mandatory injunction in any
case involving or growing out of the issuance, approval
or disapproval, revocation or suspension of, or any
action whatsoever by the proper administrative official
or body on concessions, licenses, permits, patents, or
public grants of any kind in connection with the

Page 203
 Civil Procedure
ESGUERRA NOTES

disposition, exploitation, utilization, exploration, and/or
development of the natural resources of the Philippines.
 P.D. No. 1818 - Prohibiting Courts from Issuing
Restraining Orders or Preliminary Injunctions in Cases
Involving Infrastructure and Natural Resource
Development Projects of, and Public Utilities Operated
by, the Government (16 January 1981)
o Section 1. No court in the Philippines shall have
jurisdiction to issue any restraining order, preliminary
injunction, or preliminary mandatory injunction in any
case, dispute, or controversy involving an infrastructure
project, or a mining, fishery, forest or other natural
resource development project of the government, or any
public utility operated by the government, including
among others public utilities for the transport of the
goods or commodities, stevedoring and arrastre
contracts, to prohibit any person or persons, entity or
governmental official from proceeding with, or
o Section 4. Nullity of Writs and Orders. – Any temporary
continuing the execution or implementation of any such
project, or the operation of such public utility, or
pursuing any lawful activity necessary for such
execution, implementation or operation.
 R.A. No. 8975 - An Act to Ensure the Expeditious
Implementation and Completion of Government
Infrastructure Projects by Prohibiting Lower Courts from
Issuing Temporary Restraining Orders, Preliminary
Injunctions or Preliminary Mandatory Injunctions,
Providing Penalties for Violations Thereof, and for other
Purposes. (7 November 2000)
o Section 3. Prohibition on the Issuance of Temporary
Restraining Orders, Preliminary Mandatory Injunctions. –
No court, except the Supreme Court, shall issue any
temporary restraining order, preliminary injunction or
preliminary mandatory injunction against the
government, or any of its subdivisions, officials or any
person or entity, whether public or private acting under
the government direction, to restrain, prohibit or compel
the following acts:
a. Acquisition, clearance and development of the
right-of-way and/or site or location of any
national government project;
b. Bidding or awarding of contract/ project of the
national government as defined under Section 2
hereof;
This prohibition shall apply in all cases, disputes or
controversies instituted by a private party, including but
not limited to cases filed by bidders or those claiming to
have rights through such bidders involving such
contract/project. This prohibition shall not apply when
the matter is of extreme urgency involving a
constitutional issue, such that unless a temporary
restraining order is issued, grave injustice and
irreparable injury will arise. The applicant shall file a
bond, in an amount to be fixed by the court, which bond
shall accrue in favor of the government if the court
should finally decide that the applicant was not entitled
to the relief sought.
In after due hearing the court finds that the award
of the contract is null and void, the court may, if
appropriate under the circumstances, award the contract
to the qualified and winning bidder or order a rebidding
of the same, without prejudice to any liability that the
guilty party may incur under existing laws.
restraining order, preliminary injunction or preliminary
mandatory injunction issued in violation of Section 3
hereof is void and of no force and effect.
Exception to prohibition under P.D. No. 1818
Hernandez v. National Power Corporation (2006)
Facts: Sometime in 1996, NAPOCOR began the
construction of 29 decagon-shaped steel poles or towers
with a height of 53.4 meters to support overhead high
tension cables. Said transmission line passes through
the Sergio Osmeña, Sr. Highway (South Superhighway),
the perimeter of Fort Bonifacio, and Dasmariñas Village
proximate to Tamarind Road, where petitioners’ homes
are.
On 9 March 2000 filed a Complaint for
Damages with Prayer for the Issuance of a Temporary
Restraining Order and/or a Writ of Preliminary Injunction
against NAPOCOR. Harping on the hazardous effects of
exposure to electromagnetic radiation to the health and
safety to themselves and their families, petitioners
prayed for damages and the relocation of the
transmission lines to Lawton Avenue, Fort Bonifacio. The
trial court issued a temporary restraining order and
later, extended its effectivity. Subsequently, a writ of
preliminary injunction was issued.
Citing P.D. No. 1818, NAPOCOR filed a Petition
for Certiorari with Prayer for Temporary Restraining
Order and Preliminary Injunction with the Court of
Appeals assailing the above order by the trial court.

c. Commencement prosecution, execution, Issue: Whether or not the trial court may issue a
implementation, operation of any such contract temporary restraining order and preliminary injunction
to enjoin the construction and operation of the 29
or project;
decagon-shaped steel poles or towers by the NAPOCOR,
notwithstanding Presidential Decree No. 1818
d. Termination or rescission of any such
contract/project; and Held: Yes. While its sole provision would appear to
encompass all cases involving the implementation of
e. The undertaking or authorization of any other projects and contracts on infrastructure, natural
lawful activity necessary for such resource development and public utilities, this rule,
however, is not absolute as there are actually instances
contract/project.
when Presidential Decree No. 1818 should not find
application. In a spate of cases, this Court declared that
although Presidential Decree No. 1818 prohibits any

Page 204
Civil Procedure
ESGUERRA NOTES
court from issuing injunctions in cases involving
infrastructure projects, the prohibition extends only to
the issuance of injunctions or restraining orders against
administrative acts in controversies involving facts or
the exercise of discretion in technical cases. On issues
clearly outside this dimension and involving questions of
law, this Court declared that courts could not be
prevented from exercising their power to restrain or
prohibit administrative acts.
In sum, what Presidential Decree No. 1818
aims to avert is the untimely frustration of government
infrastructure projects, particularly by provisional
remedies, to the detriment of the greater good by
disrupting the pursuit of essential government projects
or frustrate the economic development effort of the
nation. Presidential Decree No. 1818, however, was not
meant to be a blanket prohibition so as to disregard the
fundamental right to health, safety and well-being of a
community guaranteed by the fundamental law of the
land.
Verified application and bond
1997 Rules on Civil Procedure, 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.
(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
nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not apply.
(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.
Preliminary injunction not granted without
notice; exception
1997 Rules on Civil Procedure, 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
accordingly issue the corresponding order.
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.
Distinction between RTC, CA and SC TROs
Federation of Land Reform Farmers of the Phils. v.
Court of Appeals (1995)
Facts: Private respondent Torres was ordered by then
Secretary Fulgencio S. Factoran of the Department of
Environment and Natural Resources (DENR) to vacate a
parcel of land located in Antipolo, Rizal. He refused to
leave the premises, claiming that he had been in actual
possession thereof for more than 30 years. Thus, his
case was referred to the Secretary of Justice, who ruled
Page 205
Civil Procedure
ESGUERRA NOTES
that Torres failed to show proof that the land was validly
transferred to him, and thus, he could be ejected
therefrom as a squatter and be prosecuted for unlawful
occupation of forest lands under Section 69 of the
Revised Forestry Code of the Philippines.
On the strength of said opinion, the DENR
formally demanded that private respondent vacate the
land. Again, he refused to heed the demand. Instead, he
filed a complaint for injunction before the RTC of
Antipolo, Rizal to enjoin the DENR from ejecting him,
wherein he alleged that he had a pending application for
registration of title of the property. On 8 August 1988,
the court issued a temporary restraining order, directing
the parties to maintain the status quo and enjoining the
DENR from ejecting Torres. On 23 August 1988, upon
the agreement of the parties, the trial court ordered that
the status quo be maintained and created a committee,
composed of representatives of the court, the DENR and
private respondent, to conduct a survey and ocular
inspection for the purpose of pinpointing the areas
allegedly titled in private respondent’s name
Meanwhile, petitioner Federation of Land
Reform Farmers of the Phils. (“FLRP”) filed a motion for
intervention, on the ground that it had entered into a
Memorandum of Agreement with DENR for the lease of
the subject parcel of land. The court denied FLRP’s
motion. Subsequently, FLRP filed a motion to declare
without force and effect the 23 August 1988 Order of
the court arguing that said order had long become
functus officio because under Section 5, Rule 58 of the
Revised Rules of Court a temporary restraining order
has a lifespan of only 20 days and that by its failure to
decide whether to grant the writ of preliminary
injunction within said period, the trial court could no
longer grant the said writ.
Issue: Whether the trial court could extend the
temporary restraining order beyond the 20-day period.
Held: Counted from 8 August 1988, the temporary
restraining order automatically expired on 28 August
1988, the end of the twentieth day from its issuance.
Thus, when the trial court issued the Order of 23 August
1988 directing the maintenance of the status quo upon
agreement of the parties, the temporary restraining
order was still in full force and effect.
Ordinarily, the efficacy of a temporary
restraining order is non-extendible and the courts have
no discretion to extend the same considering the
mandatory tenor of the Rule. However, there is no
reason to prevent a court from extending the 20-day
period when the parties themselves ask for such
extension or for the maintenance of the status quo.
The questioned order of 23 August 1988 was
necessary for an orderly resolution of the application for
a writ of preliminary injunction. It states: "Upon
agreement of parties, the status quo is hereby
maintained. As further agreed by the parties in
connection with the verification, relocation or ocular
inspection the Court hereby appoints a Committee which
is composed of the Court Interpreter and Legal
Researcher representing the Court, Geodetic Engineer
Romulo Unciano representing the defendants and Junco
Surveying Office representing the plaintiffs and the
parties are directed to be present in the premises
starting August 29, 1988 at 1:00 o’clock (sic) in the
afternoon and every afternoon until it is finished.”
Said Survey and ocular inspection is for the
purpose of pinpointing the area allegedly titled in the
name of Torres, the area of Marikina Watershed
Reservation, the disposable and alienable area not yet
titled in favor of any other person and the area for the
townsite reservation pursuant to Proclamation No. 1283
now being claimed by the Federation of Land Reform
Farmers and earmarked by the government for them."
Clearly then, this Order was issued to maintain the
status quo while the committee ascertained facts
necessary in resolving whether or not the writ of
preliminary injunction should be issued. By issuing said
Order, the trial court should be deemed as merely
exercising its inherent power under Section 5(b), Rule
135 of the Revised Rules of Court "to enforce order in
proceedings before it" in the absence of any showing
that it has gravely abused its discretion in so doing.
Dissolution of injunction or TRO
1997 Rules on Civil Procedure, 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.
Counterbond – person enjoined will pay all damages
which applicant may suffer by the denial or dissolution
of the injunction or restraining order.
Judgment to include damages against party and
sureties
1997 Rules on Civil Procedure, 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 prescribed in
section 20 of Rule 57.
N.B. Same procedure as in Sec. 20, Rule 57
Page 206
Civil Procedure
ESGUERRA NOTES
When final injunction granted
1997 Rules on Civil Procedure, Rule 58
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.
Rule 59
Receivership
Receiver defined
Pilar M. Normandy v. Calixto Duque, et. Al (1969)
Facts: Ramon E. Saura appointed receiver of the World
War II Veterans Enterprises, Inc. (“WARVETS”). During
his term, he went to Japan by authority of the lower
court's order for the purpose of checking on the reported
undervaluation of goods shipped to the WARVETS and of
preparing the shipment of the goods which had not yet
been committed.
When Saura resigned from his post as receiver,
he prayed that the lower court accept it and at the same
time fix the amount of his fees and compensation as
receiver. Thereafter, he was discharged as receiver and
his compensation was fixed at P10,000.00.
Subsequently, one Atty. Anacleto Magno, on his own
behalf, presented before the lower court a motion for
the payment of attorney's fees to him in the amount of
P10,000.00 for his alleged services as legal counsel for
Saura when he was still a receiver. Saura, himself, filed
another motion for the payment and cancellation of his
receiver's bond and for the reimbursement to him as
premium for said bond which he paid out of his personal
funds The court granted both motions. Saura filed
another motion for reimbursement, this time for the
amount he allegedly paid as compensation of a clerk
whom he employed when he was still a receiver.
Issue: Whether or not he is not entitled to
reimbursement of the salaries paid by him to his clerk as
receiver of the WARVETS.
Held: No. He is now estopped from claiming any further
amount as compensation for alleged clerical services
employed by him as such receiver without prior approval
or authority of this Court." The employment of a clerk
was made without prior leave of court.
A receiver is a representative of the court
appointed for the purpose of preserving and
conserving the property in litigation and prevent
its possible destruction or dissipation if it were left
in the possession of any of the parties. The receiver
is not the representative of any of the parties but of all
of them to the end that their interests may be equally
protected with the least possible inconvenience and
expense. It is inherent in the office of a receiver not only
that he should act at all times with the diligence and
prudence of a good father of a family but should also not
incur any obligation or expenditure without leave of the
court and it is the responsibility of the court to supervise
the receiver and see to it that he adheres to the above
standard of his trust and limits the expenses of the
receivership to the minimum. For these reasons, it is
generally the receivership court that is in a better
position to determine whether a particular expenditure is
reasonable and satisfied or not and its ruling thereon
may not be disturbed by this Court.
Appointment of receiver
1997 Rules on Civil Procedure, 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:
(1) When it appears from the verified application and
other proof that the applicant 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;
(2) 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;
(3) 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;
(4) 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.
Receivership other than that under Rule 58
1. Receivership in aid of execution of judgment under
Rule 39, Sec. 1
2. Bank receivership
3. Receivership in petitions for insolvency under
the Insolvency Law
Notice and hearing required
 incumbent upon applicant to present evidence to
establish condition precedent that property is in
danger of being lost.
 removed or materially injured unless a receiver
is appointed to guard and preserve it
Page 207
Civil Procedure
ESGUERRA NOTES
Oath and bond of receiver (Secs. 2,4)
1997 Rules on Civil Procedure, 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.
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
Denial of application or discharge of receiver
1997 Rules on Civil Procedure, 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.
1. Upon motion and prior notice, receivership may be
discharged if it shown that his appointment was
obtained without sufficient cause;
2. Adverse party files a counterbond – will pay
applicant all damages he may suffer by reason of
acts, omissions, or other matters specified in the
application as ground for such appointment.
(Compare to counter-bond in injunction).
General powers of receiver
1997 Rules on Civil Procedure, 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 respecting the property
as the court may authorize. However, funds in the
hands of a receiver may be invested only by order of
the court upon the written consent of all the parties to
the action.
No action may be filed by or against a receiver
without leave of the court which appointed him.
Judgment to include recovery against sureties
(Sec. 9)
1997 Rules on Civil Procedure, 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 prescribed in
section 20 of Rule 57.
 Same procedure as in Rule 57, Sec. 20
See Rule 58, Sec. 8:
1997 Rules on Civil Procedure, 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 prescribed in
section 20 of Rule 57.
Rule 60
Replevin
Replevin defined
BA FINANCE CORP. v. CA (1996)
Facts: Spouses Manahan executed a promissory note
binding themselves to pay Carmasters, Inc. P83,080.00
in 36 monthly installments. To secure the payment,
spouses Manahan executed a deed of chattel mortgage
over a motor vehicle, Ford Cortina. Carmasters, Inc.
later assigned the promissory note and chattel mortgage
to BA Finance with the conformity of spouses Manahan.
BA Finance filed a complaint for replevin with alternative
prayer for the payment of sum of money because of the
failure of spouses Manahan to heed the demands of BA
Finance. It also paid a bond which caused the issuance
of the writ of replevin. The service of summons
addressed to spouses Manahan had the name and
signature of Reyes indicating he received a copy of the
summons and the complaint. BA Finance issued a
certification that they have received from the sheriff the
vehicle seized from Reyes.
BA Finance filed a notice of dismissal and the
withdrawal of the replevin bond. The RTC noted the
dismissal and denied the motion to withdraw the
replevin bond considering that it has been implemented.
Upon motion, RTC set aside the dismissal of the case
and ordered the service of summons on the Spouses
Manahan but were subsequently declared in default.
The RTC dismissed the complaint on the ground that
Reyes is merely an ancillary debtor and the spouses
Manahan, being the principal debtors, then BA Finance
has no cause of action against them.
Page 208
Civil Procedure
ESGUERRA NOTES
In its appeal to the Court of Appeals, BA
Finance asserted that a suit for replevin aimed at the
foreclosure of the chattel is an action quasi in rem which
does not necessitate the presence of the principal
obligors as long as the court does not render any
personal judgment against them.
Issue: Whether or not the presence of spouses
Manahan is a requisite for replevin to prosper
Held: No. Replevin, broadly understood, is both a form
of principal remedy and of a provisional relief. It may
refer either to the action itself, i.e., to regain the
possession of personal chattels being wrongfully
detained from the plaintiff by another, or to the
provisional remedy that would allow the plaintiff to
retain the thing during the pendency of the action and
hold it pendente lite. The action is primarily possessory
in nature and generally determines nothing more than
the right of possession. Replevin is so usually described
as a mixed action, being partly in rem and partly in
personam-in rem insofar as the recovery of specific
property is concerned, and in personam as regards to
damages involved. As an "action in rem," the gist of the
replevin action is the right of the plaintiff to obtain
possession of specific personal property by reason of his
being the owner or of his having a special interest
therein. Consequently, the person in possession of the
property sought to be replevied is ordinarily the proper
and only necessary party defendant, and the plaintiff is
not required to so join as defendants other persons
claiming a right on the property but not in possession
thereof. Rule 60 of the Rules of Court allows an
application for the immediate possession of the property
but the plaintiff must show that he has a good legal
basis, i.e., a clear title thereto, for seeking
such interim possession.
Where the right of the plaintiff to the possession of the
specific property is so conceded or evident, the action
need only be maintained against him who so possesses
the property.
Nature
Chiao Liong Tan vs. CA (1993)
Facts: Tan claims to be the owner of a motor vehicle,
particularly described as Isuzu Elf van which was taken
from him by his older brother Yong. Tan relies on the
fact that the van is registered under his name. Tan
asserts that he gave the payment for the van to Yong
and let him use it since Yong was working for Tan’s
company.
Yong alleged that the he was the one who gave
the payment for the van to Tan. And Yong was also the
one who paid for the balance for the van.
RTC rendered a decision declaring Yong as the
owner of the van and entitled to its possession. It also
ordered the delivery of the van to Yong.
Issue: Whether or not a suit for replevin resolve the
issue of ownership
Held: Yes. It is true that the judgment in a replevin suit
must only resolve in whom is the right of possession.
Primarily, the action of replevin is possessory in
character and determined nothing more than the right of
possession. However, when the title to the property is
distinctly put in issue by the defendant's plea and by
reason of the policy to settle in one action all the
conflicting claims of the parties to the possession of the
property in controversy, the question of ownership may
be resolved in the same proceeding.
Finally, although a "replevin" action is primarily
one for the possession of personality, yet it is sufficiently
flexible to authorize a settlement of all equities between
the parties, arising from or growing out of the main
controversy. Thus, in an action for replevin where the
defendant is adjudged entitled to possession, he need
not go to another forum to procure relief for the return
of the replevied property or secure a judgment for the
value of the property in case the adjudged return
thereof could not be had. Appropriately, the trial court
rendered an alternative judgment.
Application
1997 Rules on Civil Procedure, Rule 60
Section 1. Application. — 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.
Affidavit and bond
1997 Rules on Civil Procedure, 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
Foreclosure of chattel mortgage
Northern Motors, Inc. v. Herrera (1973)
Facts: Manila Yellow Taxicab purchased from Northern
Motors 200 Holden Torana Cars and executed chattel
mortgages on the case in favor of the latter. The
mortgages were then assigned to Filinvest Credit Co.
Page 209
Civil Procedure
ESGUERRA NOTES
Tropical obtained a judgment against Manila
Yellow Taxicab and part of the judgment was assigned
to Ong. To satisfy the judgment, the sheriff levied on 20
taxicabs. 8 of which were mortgaged to Northern Motors
and 12 to Filinvest Credit Co. Northern and Filinvest filed
third-party claims with the sheriff but the taxicabs were
still sold. 35 more taxicabs were sold at auction which
were also mortgaged to Northern and Filinvest. The RTC
ruled that the chattel mortgagee were not entitled to the
possession of the taxiabs by the mere fact of the
execution of the mortgage and that the mortgage lien
followed the chattel whoever might be its actual
possessor.
Issue: whether or not Northern Motor’s chattel
mortgage lien over the taxicabs, which were levied upon
by the mortgagor's unsecured judgment creditor,
Tropical Commercial, could be asserted in the same case
where the judgment was rendered
Held: Yes. We hold, under the facts of this case, that
Northern Motors, Inc., as chattel mortgagee and unpaid
vendor, should not be required to vindicate in a separate
action its claims for the seven mortgaged taxicabs and
for the proceeds of the execution sale of the other eight
mortgaged taxicabs.
Inasmuch as the condition of the chattel
mortgages had already been broken and Northern
Motors, Inc. had in fact instituted an action for replevin
so that it could take possession of the mortgaged
taxicabs (Civil Case No. 20536, Rizal CFI), it has a
superior, preferential and paramount right to have
possession of the mortgaged taxicabs and to claim the
proceeds of the execution sale (See Bachrach Motor Co.
vs. Summers, 42 Phil. 3;, Northern Motors, Inc. vs.
Herrera, L-32674, February 22, 1973, 49 SCRA 392)
Respondent sheriff wrongfully levied upon the
mortgaged taxicabs and erroneously took possession of
them. He could have levied only upon the right or equity
of redemption pertaining to the Manila Yellow Taxicab
Co., Inc . as chattel mortgagor and judgment debtor,
because that was the only leviable or attachable
property right of the company in the mortgaged
taxicabs
Replevin does not issue against property in
custodia legis
1997 Rules on Civil Procedure, 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.
Where writ may be served (anywhere in the Phils.) Is
hearing required? (Compare to preliminary attachment
and preliminary injunction)
N.B. Unlike in attachment and injunction which is
usually issued only after hearing, with certain
exceptions, order for delivery of personal property as a
provisional remedy is issued ex parte and, given the
requisites for its issuance, is granted as a matter of
course.
Return of property
* Counterbond – double the value of the property, for
delivery thereof to the applicant, if such be adjudged,
and for payment of such sum as may be recovered
against the adverse party
1997 Rules on Civil Procedure, 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.
Disposition of property by sheriff
- property seized not to be delivered immediately to
plaintiff but must retain it in custody for 5 days and
shall return it to the defendant if the latter files a
counterbond and requires its return
- counterbond must be filed within 5 days from
taking of property; period mandatory, so that a
lower court which approves a counterbond filed
beyond the period acts in excess of jurisdiction
1997 Rules on Civil Procedure, 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.
Third party claim
1997 Rules on Civil Procedure, 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
Page 210
Civil Procedure
ESGUERRA NOTES
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.
See Rule 39, Sec. 16;
1997 Rules on Civil Procedure, 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 copy thereof,
stating the grounds of such right or tittle, and a 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 indemnity 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 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.
Rule 57, Sec. 14
1997 Rules on Civil Procedure, 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.
Judgment to include recovery against sureties
(Sec. 10)
1997 Rules on Civil Procedure, 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.
Same procedure as in Rule 57, Sec. 20
1997 Rules on Civil Procedure, 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
Page 211
 Civil Procedure
ESGUERRA NOTES
thereof. Such damages may be awarded only after
proper hearing and shall be included in the judgment
on the main case.
If the judgment of the appellate court be favorable
to the party against whom the attachment was issued
he must claim damages sustained during the pendency
of the appeal by filing an application in the appellate
court, with notice to the party in whose favor the
attachment was issued or his surety or sureties, before
the judgment of the appellate court becomes
executory. The appellate court may allow the
application to be heard and decided by the trial court.
Nothing herein contained shall prevent the party
against whom the attachment was issued from
recovering in the same action the damages awarded to
him from any property of the attaching party not
exempt from execution should the bond or deposit
given by the latter be insufficient or fail to fully satisfy
the award.
See Rule 58, Sec. 8;
1997 Rules on Civil Procedure, 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 prescribed in
section 20 of Rule 57.
Rule 59, Sec. 9
1997 Rules on Civil Procedure, 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 prescribed in
section 20 of Rule 57.
Rule 61
Support Pendente Lite
Support during pendency of action for support
 “Pendente lite” – pending or during litigation
 N.B. The amount is temporarily fixed by the court in
favor of the persons entitled thereto during the
pendency of the action for support.
Support pendente lite in other actions
1. Habeas corpus filed by the mother on behalf of a minor
child against the father, where the father has recognized
the child as his own and has not been giving him
support
2. Rape cases for the offspring of the accused as a
consequence thereof
1997 Rules on Civil Procedure, 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 and
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.
Rule 62
Interpleader
Interpleader, defined
Beltran v. People’s Homesite & Housing
Corporation (1969)
Facts: Plaintiffs, in their own behalf and in behalf of all
residents of Project 4 in Quezon City, filed an
interpleader suit, praying that the two defendant-
government corporations, the People's Homesite &
Housing Corporation (PHHC) and the Government
Service Insurance System (GSIS) , be compelled to
litigate and interplead between themselves their alleged
conflicting claims involving said Project 4.
Plaintiffs alleged that since they first occupied
in 1953 their respective housing units at Project 4,
under lease from PHHC and paying monthly rentals
therefor, they were assured by competent authority that
after five years of continuous occupancy, they would be
entitled to purchase said units. Subsequently, the PHHC
announced that the management, administration and
ownership of Project 4 would be transferred by the PHHC
to the GSIS in payment of PHHC debts to the GSIS. The
tenants signified their conformity thereto. Thereafter,
the PHHC announced in another circular that all
payments made by the tenants would be considered as
amortizations or installment payments. The PHHC
furthermore instructed the Project Housing Manager to
accept as installments on the selling price the payments
made.
On December 27, 1961, the agreement of
turnover of administration and ownership of PHHC
properties, including Project 4 was executed by PHHC in
favor of GSIS. Subsequently, however, PHHC through
its new Chairman-General Manager, Esmeraldo Eco,
refused to recognize all agreements and undertakings
previously entered into with GSIS, while GSIS insisted
on its legal rights to enforce the said agreements.
Plaintiffs thus claimed that these conflicting claims
between the defendants-corporations caused them great
inconvenience and incalculable moral and material
damage, as they did not know to whom they should pay
the monthly amortizations or payments.
The trial court dismissed the complaint for
interpleader for failure to state a cause of action.
Page 212
Civil Procedure
ESGUERRA NOTES
Issue: Whether or not a complaint for interpleader was
properly dismissed by the trial court.
Held: Yes, the dismissal was proper. As borne by the
records of the case, the GSIS has no objection that
payments on the monthly amortizations from the
residents of Project 4 be made directly to PHHC. In so
far as payments are concerned, GSIS has expressed its
conformity that they be made directly to PHHC.
Whatever dispute, if any, may exist between the two
corporations over the lots and buildings in Project 4,
payments made to the PHHC will not and cannot in any
way affect or prejudice the rights of the residents
thereof as they will be credited by either of the two
defendants.
Rule 63, Section 1 of the Revised Rules of
Court (formerly Rule 14) requires as an indispensable
element that "conflicting claims upon the same subject
matter are or may be made" against the plaintiff-in-
interpleader "who claims no interest whatever in the
subject matter or an interest which in whole or in part is
not disputed by the claimants." While the two defendant
corporations may have conflicting claims between
themselves with regard to the management,
administration and ownership of Project 4, such
conflicting claims are not against the plaintiffs nor do
they involve or affect the plaintiffs. No allegation is
made in their complaint that any corporation other than
the PHHC which was the only entity privy to their lease-
purchase agreement, ever made on them any claim or
demand for payment of the rentals or amortization
payments. The questions of fact raised in their complaint
concerning the enforceability, and recognition or non-
enforceability and non-recognition of the turnover
agreement of December 27, 1961 between the two
defendant corporations are irrelevant to their action of
interpleader, for these conflicting claims, loosely so-
called, are between the two corporations and not against
plaintiffs. Both defendant corporations were in
conformity and had no dispute, as pointed out by the
trial court that the monthly payments and amortizations
should be made directly to the PHHC alone.
Clearly, there were no conflicting claims by
defendant corporations as against plaintiff-tenants,
which they may properly be compelled in an interpleader
suit to interplead and litigate among themselves. Both
defendant corporations were agreed that PHHC should
continue receiving the tenants' payments, and that such
payments would be duly recognized even if the GSIS
should eventually take over Project 4 by virtue of their
turnover agreement of December 27, 1961. As held by
this Court in an early case, the action of interpleader is a
remedy whereby a person who has property in his
possession or has an obligation to render wholly or
partially, without claiming any right in both, comes to
court and asks that the defendants who have made
upon him conflicting claims upon the same property or
who consider themselves entitled to demand compliance
with the obligation be required to litigate among
themselves in order to determine who is entitled to the
property or payment of the obligation. "The remedy is
afforded not to protect a person against a double liability
but to protect him against a double vexation in respect
of one liability."
The trial court, therefore, did not err in
ordering the dismissal of the complaint for interpleader.
Rule 63
Declaratory Relief and Similar
Remedies
Declaratory Relief, defined
Board of Optometry v. Hon. Angel Colet (1996)
Facts: R.A. No. 8050, entitled "An Act Regulating the
Practice of Optometry Education, Integrating
Optometrists, and for Other Purposes," otherwise known
as the Revised Optometry Law of 1995, was approved
into law on 7 June 1995. The private respondents filed
with the Regional Trial Court (RTC) a petition for
declaratory relief and for prohibition and injunction to
restrain the implementation and enforcement of R.A. No.
8050. In support of the petition, respondents alleged
that: (1) there was an unauthorized insertion of
provisions in the reconciled bill which vitiated legislative
consent; (2) the law violates the fundamental right of
Filipinos to safeguards against violation of life, liberty,
and property; (3) it violates the principle against undue
delegation of legislative power when it provides for a
penalty of imprisonment for a maximum of eight years
and a fine not exceeding P40,000.00; (4) it suppresses
truthful advertising concerning optical goods and
services in violation of the guaranty of freedom of
speech and press; and (5) employs vague ambiguous
terms in defining prohibitions and restrictions and is void
for vagueness.
The trial court issued the challenged order,
granting the writ of preliminary injunction. Aggrieved,
the petitioners then filed this special civil action
for certiorari and prohibition, arguing the absence of a
valid cause of action for either declaratory relief or
prohibition.
Issue: Whether or not the petition for declaratory relief
may prosper.
Held: No. As a special civil action for declaratory
relief, its requisites are: (1) the existence of a justiciable
controversy; (2) the controversy is between persons
whose interests are adverse; (3) that the party seeking
the relief has a legal interest in the controversy; and (4)
that the issue invoked is ripe for judicial
determination. On this score, we find no difficulty
holding that at least the first and fourth requisites are
wanting.
There is the unbending rule in constitutional
law that courts will not assume jurisdiction over a
constitutional question unless the following requisites
are first satisfied: (1) there must be an actual case or
controversy involving a conflict or rights susceptible of
judicial determination; (2) the constitutional question
must be raised by a proper party; (3) the constitutional
question must be raised at the earliest opportunity; and
(4) the resolution of the constitutional question must be
necessary to the resolution of the case.
An actual case or controversy means as
existing case or controversy that is appropriate or ripe
for determination, not conjectural or anticipatory. There
is yet no actual case or controversy involving all or any
of the private respondents on one hand, and all or any
of the petitioners on the other, with respect to rights or
Page 213
Civil Procedure
ESGUERRA NOTES
obligations under R.A. No. 8050. This is plain because
Civil Case No. 95-74770 is for declaratory relief.
Moreover, private respondents OPAP, COA, ACMO, and
SMOAP have not sufficiently established their locus
standi to question the validity of R.A. No. 8050 for
failure to show that they are juridical entities
Hence, respondent Judge acted with grave
abuse of discretion when he issued a writ of preliminary
injunction restraining the implementation of R.A. No.
8050, as well as of the Code of Ethics promulgated
thereunder. Even if there was before him a case
involving the law, prudence dictated that the respondent
Judge should not have issued the writ with undue haste,
bearing in mind the pronouncement in Drilon v. Lim that
every court is charged with the duty of a purposeful
hesitation before declaring a law unconstitutional, on the
theory that the measure was first carefully studied by
the executive and legislative departments and
determined by them to be in accordance with the
fundamental law before it was finally approved.
Respondent Judge was directed to dismiss the
petition for declaratory relief and prohibition.
Declaratory relief distinguished from interpleader
 Interpleader is filed by a person who claims no
interest whatsoever in the subject matter, whereas
in declaratory relief, the party seeking relief has a
legal interest in the controversy
When remedy is improper – where there is a
breach of contract, or violation of statute or right
Ollada v. Central bank (1962)
Facts: Felipe B. Ollada is a certified public accountant,
having passed the examination given by the Board of
Accountancy, and is duly qualified to practice his
profession. Subsequently, by reason of a requirement of
the Import-Export Department of the Central Bank that
CPAs submit to an accreditation under oath before they
could certify financial statements of their clients applying
for import dollar allocations with its office, Ollada's
previous accreditation was nullified.
Assailing said accreditation requirement on the
ground that it was (a) an unlawful invasion of the
jurisdiction of the Board of Accountancy, (b) in excess of
the powers of the Central Bank and (c) unconstitutional
in that it unlawfully restrained the legitimate pursuit of
one's trade, Ollada, for himself and allegedly on behalf
of numerous other CPAs, filed a petition for Declaratory
Relief in the Court of First Instance of Manila to nullify
said accreditation requirement. Ollada also applied for a
writ of preliminary injunction to restrain the respondent
Central Bank of the Philippines from enforcing the
accreditation requirement aforesaid until final
adjudication.
In a memorandum submitted by respondent
Central Bank opposing the issuance of the writ, it
manifested that it was willing to delete paragraph 13
from its CB-IED Form No. 5, and to modify paragraph
14, the objectionable features of the assailed Central
Bank requirement. Upon compliance with said
undertaking, the trial court dismissed the petition for
declaratory relief for having become groundless upon
the elimination of said objectionable features.
Issue: Whether or not the dismissal of the petition for
declaratory relief was proper.
Held: Yes. Without deciding the question of whether
the petition under consideration has, in reality "become
groundless", we believe that, upon the facts appearing
of record, said petition was correctly dismissed.
Petitioner himself alleged that his petition:
has sufficiently alleged ultimate facts which
violated his right as a duly qualified and
accredited Certified Public Accountant by the
Board of Accountancy (which is the only
Government body with absolute powers to
regulate the practice of CPAs), and in addition
to such allegations, he has also alleged that by
virtue of the violation of his right and that of
numerous CPAs, he has suffered serious injury
in that the questioned requirement which is
collaterally attacked by this action (in the
honest belief of the petitioner that the same) is
an unlawful restraint of the fee pursuit and
practice of petitioner's profession as a CPA;
and also that the action of the respondent
Central Bank of the Philippines complained of,
is also an unlawful invasion into the exclusive
jurisdiction of the Board of Accountancy as the
sole body vested by our laws to lay down rules
and regulations for the practice of public
accountancy in the Philippines. . .
Petitioner submits that the respondent's
requirement complained of (CB-IED Forms
Nos. 5 and 6) is an act of constituting a
violation of the Constitution and also a
violation of the petitioners right to freely
practice his profession anywhere and in any
government office in the Philippines ... It is
undisputed that the only body that can
regulate the practice of accountancy in the
Philippines is the Board of Accountancy. The
action thus of the respondent in requiring the
accreditation of CPAs before they can practice
with the Central Bank of the Philippines is an
unlawful invasion into the exclusive jurisdiction
of the said Board of Accountancy. Why was
petitioner's right as a CPA violated by the
respondent? Because the respondent's placing
of a ban to CPAs including the petitioner with
respect to certification of financial statements
of their clients applying for dollar(s) allocation
in the Central Bank of the Philippines has
resulted in the unlawful restraint in the
practice of CPAs in the office of the Central
Bank of the Philippines.
Petitioner commenced this action as one for
Declaratory Relief. On the question of when a special
civil action of this nature would prosper, we have
already held that the complaint for declaratory relief will
not prosper if filed after a contract, statute or right has
been breached or violated. In the present case such is
precisely the situation arising from the facts alleged in
the petition for declaratory relief. As vigorously claimed
by petitioner himself, respondent had already invaded or
violated his right and caused him injury — all these
giving him a complete cause of action enforceable in an
appropriate ordinary civil action or proceeding. The
dismissal of the action was, therefore, proper in the light
of our ruling in De Borja vs. Villadolid, 47 O.G. (5) p.
2315, and Samson vs. Andal, G.R. No. L-3439, July 31,
Page 214
Civil Procedure
ESGUERRA NOTES
1951, where we held that an action for declaratory relief
should be filed before there has been a breach of a
contract, statutes or right, and that it is sufficient to bar
such action, that there had been a breach — which
would constitute actionable violation. The rule is that an
action for Declaratory Relief is proper only if adequate
relief is not available through the means of other
existing forms of action or proceeding.
Reyes v. Ortiz (2010)
Facts: In a complaint for Recovery of Possession and/or
Ownership of Real Property (Recovery Case) filed with
the RTC Caloocan, respondents Segundo Bautista and
spouses Bernard and Florencia Perl sought the ouster
from the contested lots of Erlinda Reyes, which form
part of the Tala Estate, the spouses Rene and Rosemarie
Matienzo and Sergio Abejero. Shortly thereafter, a
separate but related action involving the Tala Estate was
initiated by the Republic of the Philippines for Annulment
of Title/Reversion (Annulment/Reversion case) against
Biyaya Corporation and the Register of Deeds of the
Cities of Pasig, Caloocan, and Quezon.
Thereafter, the Quezon City RTC in the
Annulment/Reversion case issued a Preliminary
Injunction (Injunction) freezing all pending ejectment
cases involving the Tala Estate. Believing that the
Injunction issued by the Quezon City RTC can be
beneficial to them in the Recovery case, spouses Rene
and Rosemarie Matienzo filed a motion to suspend the
proceedings of the Recovery case. Said motion was
denied by the RTC Caloocan.
The second case, an ejectment complaint, was
commenced by spouses Bernard and Florencia Perl on
June 25, 1997, against Erlinda Reyes before the
Caloocan City MeTC (Ejectment Case). Erlinda Reyes
moved for the suspension of the proceedings and/or for
the dismissal of these cases citing the Injunction issued
by the QC RTC. This motion was also denied.
The Recovery case and the Ejectment cases
converged when petitioners Rosemarie Matienzo and
Erlinda Reyes joined in filing directly with this Court the
instant petition denominated as "Declaratory
Relief, Certiorari, and Prohibition," mainly assailing the
denial of their respective motions for suspension.
Petitioners Matienzo and Reyes asked that the
proceedings in the Ejectment cases and the Recovery
case be declared null and void for violating the
Injunction order of the Quezon City RTC.
Respondent Segundo Bautista contends that
petitioners resorted to a wrong remedy. He argues that
the action for declaratory relief can only prosper if the
statute, deed, or contract has not been violated. Hence,
where the law or contract has already been breached
prior to the filing of the declaratory relief, courts can no
longer assume jurisdiction since this action is not geared
towards the settling of issues arising from breach or
violation of the rights and obligations of the parties
under a statute, deed, and contract, but rather it is
intended to secure an authoritative statement for
guidance in their enforcement or compliance of the
same.
Issue: Whether or not petitioners’ resort to a petition
for declaratory relief was proper.
Held: No. Petitioners insist that this is mainly a petition
for declaratory relief. Section 1, Rule 63 of the 1997
Rules of Court provides:
SECTION 1. Who may file petition. — Any person
interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or any other
governmental regulation may, before breach or violation
thereof, bring an action in the appropriate Regional Trial
Court to determine any question of construction or
validity arising, and for a declaration of his rights or
duties, thereunder.
An action for the reformation of an instrument, to quiet
title to real property or remove clouds therefrom, or to
consolidate ownership under Article 1607 of the Civil
Code, may be brought under this Rule.
The foregoing section can be dissected into two
parts. The first paragraph concerns declaratory relief,
which has been defined as a special civil action by any
person interested under a deed, will, contract or other
written instrument or whose rights are affected by a
statute, ordinance, executive order or regulation to
determine any question of construction or validity
arising under the instrument, executive order or
regulation, or statute and for a declaration of his rights
and duties thereunder. The second paragraph pertains
to (1) an action for the reformation of an instrument;
(2) an action to quiet title; and (3) an action to
consolidate ownership in a sale with a right to
repurchase.
The first paragraph of Section 1 of Rule 63
enumerates the subject matter to be inquired upon in a
declaratory relief namely, deed, will, contract or other
written instrument, a statute, executive order or
regulation, or any government regulation. This Court, in
Lerum v. Cruz declared that the subject matters to be
tested in a petition for declaratory relief are exclusive.
The foregoing holding was reiterated in Natalia Realty,
Inc. v. Court of Appeals, wherein this Court stressed that
court orders or decisions cannot be made the subject
matter of a declaratory relief, viz:
[A] court decision cannot be interpreted as included
within the purview of the words "other written
instrument," as contended by appellant, for the simple
reason that the Rules of Court already provide for the
ways by which an ambiguous or doubtful decision may
be corrected or clarified without need of resorting to the
expedient prescribed by Rule 66 [now Rule 63].
In the instant case, petitioners Erlinda Reyes
and Rosemarie Matienzo assailed via Declaratory Relief
under Rule 63 of the Rules of Court, the orders of the
trial courts denying their motions to suspend
proceedings. This recourse by petitioners, unfortunately,
cannot be countenanced since a court order is not one of
those subjects to be examined under Rule 63. The
proper remedy that petitioner Erlinda Reyes could have
utilized from the denial of her motion to suspend
proceedings in the Caloocan City MeTC was to file a
motion for reconsideration and, if it is denied, to file a
petition for certiorari before the RTC pursuant to Rule 65
of the Rules of Court. On the other hand, petitioner
Matienzo should have filed a special civil action on
certiorari also under Rule 65 with the Court of Appeals
from the denial of her motion by the Caloocan City RTC.
Page 215
Civil Procedure
ESGUERRA NOTES
At all events, even if this petition delves on
questions of law, there is no statutory or jurisprudential
basis for according to this Court original and exclusive
jurisdiction over declaratory relief which advances only
questions of law. Finally, while a petition for declaratory
relief may be treated as one for prohibition if it has far
reaching implications and raises questions that need to
be resolved, there is no allegation of facts by petitioner
tending to show that she is entitled to such a writ.
Conversion into ordinary action
1997 Rules on Civil Procedure, Rule 63
Section 6. Conversion into ordinary action. — If
before the final termination of the case, a breach or
violation of an instrument or a statute, executive order
or regulation, ordinance, or any other governmental
regulation should take place, the action may thereupon
be converted into an ordinary action, and the parties
shall be allowed to file such pleadings as may be
necessary or proper.
RTC has exclusive jurisdiction; SC has no
jurisdiction over petitions for declaratory relief
1997 Rules on Civil Procedure, Rule 63 par. 1
Section 1. Who may file petition. — Any person
interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or any other
governmental regulation may, before breach or
violation thereof bring an action in the appropriate
Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of
his rights or duties, thereunder…
Rule 64
Review of Judgments and Final
Orders or Resolution of COMELEC and
COA
What may be reviewed by the Supreme Court
Garces v. CA (1996)
Facts: Lucita Garces was appointed Election Registrar of
Gutalac, Zamboanga del Norte on July 27, 1986. She
was to replace Election Registrar Claudio Concepcion,
who, in turn, was transferred to Liloy, Zamboanga del
Norte. Correspondingly approved by the Civil Service
Commission, both appointments were to take effect
upon assumption of office. Concepcion, however,
refused to transfer post as he did not request for it.
Garces, on the other hand, was directed by the Office of
Assistant Director for Operations to assume the Gutalac
post. But she was not able to do so because of a
Memorandum issued by Provincial Election Supervisor
Salvador Empeynado that prohibited her from assuming
office in Gutalac as the same is not vacant.
On February 24, 1987, Garces was directed by
the same Office of Assistant Director to defer her
assumption of the Gutalac post. On April 15, 1987, she
received a letter from the Acting Manager, Finance
Service Department, with an enclosed check to cover for
the expenses on construction of polling booths. It was
addressed Mrs. Lucita Garces E.R. Gutalac, Zamboanga
del Norte which Garces interpreted to mean as
superseding the deferment order. Meanwhile, since
respondent Concepcion continued occupying the Gutalac
office, the COMELEC en banc cancelled his appointment
to Liloy.
Garces filed before the Regional Trial Court
(RTC) a petition for mandamus with preliminary
prohibitory and mandatory injunction and damages
against Empeynado and Concepcion, among others.
Meantime, the COMELEC en banc through a Resolution
dated 3 June 1988, resolved to recognize respondent
Concepcion as the Election Registrar of Gutalac, and
ordered that the appointments of Garces to Gutalac and
of Concepcion to Liloy be cancelled.
The jurisdiction of the RTC was challenged by
Empeynado contending that this is a case or matter
cognizable by the COMELEC under Sec. 7 Art. IX-A of
the 1987 Constitution. The COMELEC resolution
cancelling the appointment of Garces as Election
Registrar of Gutalac, he argues, should be raised only on
certiorari before the Supreme Court and not before the
RTC, else the latter court becomes a reviewer of an en
banc COMELEC resolution contrary to Sec. 7, Art. IX-A.
The RTC, thereafter, dismissed the petition for
mandamus on two grounds, viz., (1) that quo warranto
is the proper remedy, and (2) that the cases or matters
referred under the constitution pertain only to those
involving the conduct of elections. On appeal, the CA
affirmed the RTCs dismissal of the case.
Issue: Whether or not this case is cognizable by the
COMELEC under Sec. 7 Art. IX-A of the 1987
Constitution, and therefore may be raised only on
certiorari before the Supreme Court and not before the
RTC.
Held: The case is not cognizable by the COMELEC under
Sec. 7 Art. IX-A of the 1987 Constitution as there was
no case or matter filed before the COMELEC. Thus, it
may not be raised on certiorari before the Supreme
Court. Sec. 7, Art. IX-A of the Constitution provides:
Each commission shall decide by a majority
vote of all its members any case or matter brought
before it within sixty days from the date of its
submission for decision or resolution. A case or matter is
deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum
required by the rules of the commission or by the
commission itself. Unless otherwise provided by this
constitution or by law, any decision, order, or ruling of
each commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty days
from receipt of a copy thereof.
On the contrary, it was the COMELECs
resolution that triggered this Controversy. The case or
matter referred to by the Constitution must be
something within the jurisdiction of the COMELEC, i.e., it
must pertain to an election dispute. The settled rule is
that decision, rulings, order of the COMELEC that may
be brought to the Supreme Court on certiorari under
Sec. 7 Art. IX-A are those that relate to the COMELECs
exercise of its adjudicatory or quasi-judicial powers
involving elective regional, provincial and city officials.
In this case, what is being assailed is the COMELECs
Page 216
Civil Procedure
ESGUERRA NOTES
choice of an appointee to occupy the Gutalac Post which
is an administrative duty done for the operational set-up
of an agency. The controversy involves an appointive,
not an elective, official. Hardly can this matter call for
the certiorari jurisdiction of the Supreme Court. To rule
otherwise would surely burden the Court with trivial
administrative questions that are best ventilated before
the RTC, a court which the law vests with the power to
exercise original jurisdiction over all cases not within the
exclusive jurisdiction of any court, tribunal, person or
body exercising judicial or quasi-judicial functions.
Fresh period rule not applicable
Pates v. Comelec (2009)
Facts: The petitioner argued that his petition for
certiorari assailing a Resolution of the COMELEC was
seasonably filed under the fresh period rule enunciated
by the Supreme Court in a number of cases. He claims
that, historically, the fresh period rule was the prevailing
rule in filing petitions for certiorari. The Supreme Court,
he continues, changed this rule when it promulgated the
1997 Rules of Civil Procedure and Circular No. 39-98,
which both provided for the filing of petitions within the
remainder of the original period, the remainder being
the original period less the days used up in preparing
and filing a motion for reconsideration. He then points
out that on 1 September 2000 or only three years after,
the Supreme Court promulgated A.M. No. 00-02-03-SC
bringing back the fresh period rule. According to the
petitioner, the reason for the change, was the
tremendous confusion generated by Circular No. 39-98.
Issue: Is the fresh period rule applicable in Rule 64 of
the Rules of Court?
Held: No. Section 7, Article IX-A of the Constitution
provides that unless otherwise provided by the
Constitution or by law, any decision, order, or ruling of
each Commission may be brought to the Court on
certiorari by the aggrieved party within 30 days from
receipt of a copy thereof. For this reason, the Rules of
Court provide for a separate rule (Rule 64) specifically
applicable only to decisions of the COMELEC and the
Commission on Audit. This Rule expressly refers to the
application of Rule 65 in the filing of a petition for
certiorari, subject to the exception clause except as
hereinafter provided.
Rule 64, however, cannot simply be equated to
Rule 65 even if it expressly refers to the latter rule. They
exist as separate rules for substantive reasons as
discussed below. Procedurally, the most patent
difference between the two i.e., the exception that
Section 2, Rule 64 refers to is Section 3 which provides
for a special period for the filing of petitions for certiorari
from decisions or rulings of the COMELEC en banc. The
period is 30 days from notice of the decision or ruling
(instead of the 60 days that Rule 65 provides), with the
intervening period used for the filing of any motion for
reconsideration deductible from the originally-granted
30 days (instead of the fresh period of 60 days that Rule
65 provides).
In harking back to the history of the fresh
period rule, what the petitioner apparently wants for
reasons of uniformity and convenience is the
simultaneous amendment of Section 3, Rule 64 and the
application of his proposed new rule to his case. To state
the obvious, any amendment of this provision is an
exercise in the power of the Supreme Court to
promulgate rules on practice and procedure as provided
by Section 5(5), Article VIII of the Constitution.
Rulemaking is different from the Supreme Court’s
adjudicatory function. Rulemaking is an act of
legislation, directly assigned to the Supreme Court by
the Constitution, that requires the formulation of policies
rather than the determination of the legal rights and
obligations of litigants before us. As a rule, rulemaking
requires that the Supreme Court consult with its own
constituencies, not necessarily with the parties directly
affected in their individual cases, in order to ensure that
the rule and the policy that it enunciates are the most
reasonable that we can promulgate under the
circumstances, taking into account the interests of
everyone not the least of which are the constitutional
parameters and guidelines for our actions. Thus, the
Supreme Court’s adjudicatory powers should not be
confused with its rulemaking prerogative.
The avoidance of confusion through the use of
uniform standards is not without its merits. No less than
the Constitution requires that motions for
reconsideration of [division] decisions shall be decided
by the Commission en banc. Thus, the ruling of the
Commission en banc on reconsideration is effectively a
new ruling rendered separately and independently from
that made by a division. Counterbalanced against these
reasons, however, are other considerations no less
weighty, the most significant of which is the importance
the Constitution and the Supreme Court, in obedience to
the Constitution, accord to elections and the prompt
determination of their results. Section 3, Article IX-C of
the Constitution expressly requires that the COMELECs
rules of procedure should expedite the disposition of
election cases. The Supreme Court labors under the
same command, as the proceedings are in fact the
constitutional extension of cases that start with the
COMELEC.
Motion for reconsideration of decision of COMELEC
Division required; not of COMELEC En Banc
 Section 1 (d), Rule 13 of COMELEC Rules of Procedure
states:
What Pleadings are not Allowed. - The
following pleadings are not allowed:
... ... ...
(d) motion for reconsideration of an en
banc ruling, resolution, order or decision except in
election offense cases;
N.B. MR of COMELEC Division ruling should first be
filed with COMELEC En Banc, whose decision may
be brought on certiorari to SC. Exc. when division
committed grave abuse of discretion, in which
case the aggrieved party may directly file a
petition for certiorari with SC.
 Rule 23 of the COMELEC Rules of Procedure, as
amended by Resolution No. 9523,4 provides:
4 In The Matter Of the Amendment to Rules 23, 24, And
25 of the COMELEC Rules of Procedure for Purposes of
The 13 May 2013 National, Local And ARMM Elections
And Subsequent Elections.
Page 217
Civil Procedure
ESGUERRA NOTES
Section 7. Motion for Reconsideration. — A
motion to reconsider a Decision, Resolution, Order or
Ruling of a Division shall be filed within five (5) days
from receipt thereof and upon the payment of filing fee
in the amount of P1,000.00. Such motion, if not pro-
forma, suspends the execution for implementation of the
Decision, Resolution, Order and Ruling. The movant shall
be required to furnish a copy of his motion for
reconsideration to the adverse party prior to filing the
same with the Office of the Clerk of Commission.
Within forty-eight (48) hours from the filing
thereof, the Clerk of the Commission shall notify the
Presiding Commissioner. The latter shall within two (2)
days thereafter certify the case to the Commission En
Banc.
The Clerk of the Commission shall calendar the
Motion for Reconsideration for the resolution of the
Commission En Banc within three (3) days from the
certification thereof without need of comment from the
adverse party.
Rule 65
Prohibition and Mandamus
Prohibition
1997 Rules on Civil Procedure, Rule 65 par. 1
Section 2. Petition for Prohibition. — When the
proceedings of any tribunal, corporation, board, officer
or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or
his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is
no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent to desist from further proceedings in the
action or matter specified therein, or otherwise
granting such incidental reliefs as law and justice may
require.
Nature and purpose
1. The principal purpose for the writ of
prohibition is to prevent an encroachment, excess,
usurpation or assumption of jurisdiction on the part of
an inferior court or quasi-judicial tribunal. It is granted
when it is necessary for the orderly administration of
justice, or prevent the use of the strong arm of the law
in an oppressive or vindictive manner, or multiplicity of
actions. The writs of certiorari and prohibition, for that
matter, are intended to annul or void proceedings in
order to insure the fair and orderly administration of
justice. (Longino v. General, G.R. No. 147956, 16
February 2005).
2. For a party to be entitled to a writ of
prohibition, he must establish the following requisites:
(a) it must be directed against a tribunal, corporation,
board or person exercising functions, judicial or
ministerial; (b) the tribunal, corporation, board or
person has acted without or in excess of its jurisdiction,
or with grave abuse of discretion; and (c) there is no
appeal or any other plain, speedy, and adequate remedy
in the ordinary course of law. (Id.)
3. A special civil action of prohibition is
an original and independent action and not merely a
continuation or a part of the trial resulting in the
rendition of the judgment or order complained of.
Neither is such an action ancillary or substitute to the
action against which the supervisory authority of the
appellate court is sought and directed. It bears stressing
that an action for prohibition or certiorari, for that
matter, does not divest the inferior or trial court of its
jurisdiction validly acquired over the case pending
before it; it is merely an invocation for the exercise of its
supervisory power over the lower court to insure that
the lower court acts within its jurisdiction. If the lower
court errs in the exercise of its jurisdiction, the remedy
of the aggrieved party is to appeal in due course from
an adverse judgment of the trial court, absent grave
abuse of its discretion amounting to excess or lack of
jurisdiction. (Mayon Estate Corporation v. Altura, G.R.
No. 134462, 18 October 2004).
Vergara v. Rugue (1977)
Facts: Abraham Rugue (“Rugue”) filed a complaint for
the annulment of sale against Alfonso Vergara in whose
favor the Land Tenure Administration sold a parcel of
land covered by TCT No. 59274";. After trial, the lower
court rendered a decision dismissing the complaint but
ordering the Land Tenure Administration to refund to
Abraham Rugue all the payments that he has made on
the property, as well as to reimburse him for whatever
improvement he has made on the property. Upon
appeal, the Court of Appeals reversed the judgment of
the trial court. Thereafter, Rugue filed with the lower
court a motion for execution of the Court of Appeals’
Decision, which the lower court granted.
Thus, Vergara filed before the Supreme Court
a petition for "prohibition with mandatory injunction,
seeking to: (a) restrain respondent Judge, the Sheriff,
and the Register of Deeds, from enforcing the order of
execution of the decision of the Court of Appeals; (b)
declare Vergara as the rightful owner of the lot and to
order Rugue to pay petitioner P29,000.00 as attorney's
fees and moral damages as may be determined by the
court. In his petition, Vergara argued, among others,
that the Court of Appeals erred when it honored the sale
of the questioned lot in favor of Abraham Rugue.
Issue: Whether or not Vergara’s petition for prohibition
may prosper.
Held: No. The Supreme Court denied Vergara’s petition
for prohibition. It explained that the office of the
extraordinary remedy of prohibition is not to correct
errors of judgment but to prevent or restrain usurpation
by inferior tribunals and to compel them to observe the
limitation of their jurisdictions. It is a preventive
remedy. Its function is to restrain the doing of some act
to be done. It is not intended to provide a remedy for
acts already accomplished. This remedy will lie only to
"prevent an encroachment, excess, usurpation, or
improper assumption of jurisdiction on the part of an
inferior court or tribunal, or to prevent some great
outrage upon the settled principles of law and
procedure; but, if the inferior court or tribunal has
jurisdiction of the person and subject-matter of the
controversy, the writ will not lie to correct errors and
irregularities in procedure, or to prevent an erroneous
Page 218
Civil Procedure
ESGUERRA NOTES
decision or an enforcement of an erroneous judgment,
or even in cases of encroachment, usurpation, and
abuse of judicial power or the improper assumption or
jurisdiction, where an adequate and applicable remedy
by appeal, writ of error, certiorari, or other prescribed
methods of review are available." It may be safely
asserted as a settled law, that "unless the court sought
to be prohibited is wanting in jurisdiction over the class
of cases to which the pending case belongs or is
attempting to act in excess of its jurisdiction in a case of
which it rightfully has cognizance, the writ will be
denied."
The writ of prohibition does not lie against the
exercise of a quasi-legislative function.
Holy Spirit Homeowners Association v. Defensor
(2006)
Facts: Petitioners filed a petition for prohibition, with
prayer for the issuance of a temporary restraining order
and/or writ of preliminary injunction, seeks to prevent
respondents from enforcing the implementing rules and
regulations (IRR) of Republic Act No. 9207, otherwise
known as the "National Government Center (NGC)
Housing and Land Utilization Act of 2003."
Issue: May a writ of prohibition be issued to enjoin an
exercise of a quasi-legislative function?
Held: No. The Supreme Court ruled a petition for
prohibition is not the proper remedy to assail an IRR
issued in the exercise of a quasi-legislative function.
Prohibition is an extraordinary writ directed against any
tribunal, corporation, board, officer or person, whether
exercising judicial, quasi-judicial or ministerial functions,
ordering said entity or person to desist from further
proceedings when said proceedings are without or in
excess of said entity’s or person’s jurisdiction, or are
accompanied with grave abuse of discretion, and there
is no appeal or any other plain, speedy and adequate
remedy in the ordinary course of law. Prohibition lies
against judicial or ministerial functions, but not against
legislative or quasi-legislative functions. Generally, the
purpose of a writ of prohibition is to keep a lower court
within the limits of its jurisdiction in order to maintain
the administration of justice in orderly
channels. Prohibition is the proper remedy to afford
relief against usurpation of jurisdiction or power by an
inferior court, or when, in the exercise of jurisdiction in
handling matters clearly within its cognizance the
inferior court transgresses the bounds prescribed to it by
the law, or where there is no adequate remedy available
in the ordinary course of law by which such relief can be
obtained. Where the principal relief sought is to
invalidate an IRR, petitioners’ remedy is an ordinary
action for its nullification, an action which properly falls
under the jurisdiction of the Regional Trial Court. In any
case, petitioners’ allegation that "respondents are
performing or threatening to perform functions without
or in excess of their jurisdiction" may appropriately be
enjoined by the trial court through a writ of injunction or
a temporary restraining order.
Mandamus
1997 Rules on Civil Procedure, Rule 65
Section 3. Petition for mandamus. — When any
tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another
from the use and enjoyment of a right or office to
which such other is entitled, and there is no other
plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some
other time to be specified by the court, to do the act
required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the
respondent.
The petition shall also contain a sworn certification of
non-forum shopping as provided in the third paragraph
of section 3, Rule 46.
Mandamus will not issue to compel a discretionary
act
Sharp International Marketing v. Court of Appeals
(1991)
Facts: This case involves the aborted sale of the
Garchitorena estate to the Government in connection
with the Comprehensive Agrarian Reform Program
(CARP). On 27 April 1988, United Coconut Planters
Bank (UCPB) entered into a Contract to Sell said
property to Sharp International Marketing, the
agreement to be converted into a Deed of Absolute Sale
upon payment by the latter of the full purchase price of
P3,183,333.33. On 14 May 1988, even before it had
acquired the land, the petitioner, through its President
Alex Lina, offered to sell it to the Government for
P56,000,000.00, (later increased to P65,000,000.00).
Subsequently, a Deed of Absolute Sale was
executed between UCPB and Sharp by virtue of which
the former sold the estate to the latter for the stipulated
consideration of P3,183,333.33. Thereafter, or on 29
December 1988, DAR Secretary Philip Ella Juico issued
an order directing the acquisition of the estate for the
recommended amount of P62,725,077.29. Thus,
Secretary Juico and petitioner Lina signed the Deed of
Absolute Sale.
The LBP received a copy of the order issued by
Secretary Juico. However, LBP President Deogracias
Vistan, upon discovery that Sharp had acquired the
property from UCPB for only P3.1 million, requested
Secretary Juico to reconsider his 29 December 1988
order. Meantime, Vistan informed Juico that LBP would
not pay the stipulated purchase price. Sharp then filed
a petition for mandamus with the Supreme Court to
compel the DAR and LBP to comply with the contract,
prompting Juico to issue an order for a reevaluation and
reappraisal of the subject property, in view of the
findings that the value of P62,725,077.29 is definitely
too high as a price for the property in question.
Page 219
Civil Procedure
ESGUERRA NOTES
The petition was referred to the Court of
Appeals, which dismissed the same, ruling that
mandamus did not lie because the LBP was not a mere
rubber stamp of the DAR and its signing of the Deed of
Absolute Sale was not a merely ministerial act.
Issue: Whether or not the petitioners are entitled to a
writ of mandamus to compel the LBP President
Deogracias Vistan to sign the Deed of Absolute Sale
dated January 9, 1989.
Held: No. It is settled that mandamus is not available
to control discretion. The writ may issue to compel the
exercise of discretion but not the discretion itself.
Mandamus can require action only but not specific
action where the act sought to be performed involves
the exercise of discretion. Section 18 of RA 6657 reads
as follows:
Sec. 18. Valuation and mode of compensation. — The
LBP shall compensate the landowner in such amount as
may be agreed upon by the landowner and the DAR and
the LBP, in accordance with the criteria provided for in
Secs. 16 and 17, and other pertinent provisions hereof,
or as may be finally determined by the court, as the just
compensation for the land. ...
The act required of the LBP President is not
merely ministerial but involves a high degree of
discretion. As correctly held by the Court of Appeals:
[T]he LBP is an essential part of the government sector
with regard to the payment of compensation to the
landowner. It is, after all, the instrumentality that is
charged with the disbursement of public funds for
purposes of agrarian reform. It is therefore part, an
indispensable cog, in the governmental machinery that
fixes and determines the amount compensable to the
landowner… If the LBP agrees on the amount stated in
the DAS, after its review and evaluation, it becomes its
duty to sign the deed. But not until then… Inversely, if
the LBP, after review and evaluation, refuses to sign, it
is because as a party to the contract it does not give its
consent thereto. This necessarily implies the exercise of
judgment on the part of LBP, which is not supposed to
be a mere rubber stamp in the exercise…
Under the facts, SHARP is not entitled to a writ of
mandamus. For, it is essential for the writ to issue that
the plaintiff has a legal right to the thing demanded and
that it is the imperative duty of the defendant to
perform the act required. The legal right of the plaintiff
to the thing demanded must be well-defined, clear and
certain. The corresponding duty of the defendant to
perform the required act must also be clear and
specific …
Likewise, respondents cannot be compelled by a writ of
mandamus to discharge a duty that involves the
exercise of judgment and discretion, especially where
disbursement of public funds is concerned. It is
established doctrine that mandamus will not issue to
control the performance of discretionary, non-
ministerial, duties, that is, to compel a body discharging
duties involving the exercise of discretion to act in a
particular way or to approve or disapprove a specific
application.
Moreover, without the signature of the LBP
President, there was simply no contract between Sharp
and the Government. The Deed of Absolute Sale dated 9
January 1989 was incomplete and therefore had no
binding effect at all. Consequently, Sharp cannot claim
any legal right thereunder that it can validly assert in a
petition for mandamus.
Mandamus is available only to compel the doing of
an act specifically enjoined by law as a duty
Henares v. LTRFB and DOTC (2006)
Facts: Petitioners challenge the Supreme Court to issue
a writ of mandamus commanding respondents Land
Transportation Franchising and Regulatory Board
(LTFRB) and the Department of Transportation and
Communications (DOTC) to require public utility vehicles
(PUVs) to use compressed natural gas (CNG) as
alternative fuel.
Petitioners allege that the particulate matters
(PM) – complex mixtures of dust, dirt, smoke, and liquid
droplets have caused detrimental effects on health,
productivity, infrastructure and the overall quality of life.
Petitioners particularly cite the effects of certain fuel
emissions from engine combustion when these react to
other pollutants. For instance, petitioners aver, with
hydrocarbons, oxide of nitrogen (NOx) creates smog;
with sulfur dioxide, it creates acid rain; and with
ammonia, moisture and other compounds, it reacts to
form nitric acid and harmful nitrates. To counter the
aforementioned detrimental effects of emissions from
PUVs, petitioners propose the use of CNG.
The Solicitor General counters that nothing in
Rep. Act No. 8749, otherwise known as the "Philippine
Clean Air Act of 1999” that petitioners invoke prohibits
the use of gasoline and diesel by owners of motor
vehicles. Sadly too, according to the Solicitor General,
Rep. Act No. 8749 does not even mention the existence
of CNG as alternative fuel and avers that unless this law
is amended to provide CNG as alternative fuel for PUVs,
the respondents cannot propose that PUVs use CNG as
alternative fuel.
Issue: Whether or not the respondent can be compelled
to require public utility vehicles to use compressed
natural gas through a writ of mandamus.
Held: No. Under Section 3, Rule 65 of the Rules of
Court, mandamus lies under any of the following cases:
(1) against any tribunal which unlawfully neglects the
performance of an act which the law specifically enjoins
as a duty; (2) in case any corporation, board or person
unlawfully neglects the performance of an act which the
law enjoins as a duty resulting from an office, trust, or
station; and (3) in case any tribunal, corporation, board
or person unlawfully excludes another from the use and
enjoyment of a right or office to which such other is
legally entitled; and there is no other plain, speedy, and
adequate remedy in the ordinary course of law.
In University of San Agustin, Inc. v. Court of Appeals,
the Supreme Court held:
…It is settled that mandamus is employed to compel the
performance, when refused, of a ministerial duty, this
being its main objective. It does not lie to require
anyone to fulfill contractual obligations or to compel a
course of conduct, nor to control or review the exercise
of discretion. On the part of the petitioner, it is essential
to the issuance of a writ of mandamus that he should
have a clear legal right to the thing demanded and it
Page 220
Civil Procedure
ESGUERRA NOTES
must be the imperative duty of the respondent to
perform the act required. It never issues in doubtful
cases. While it may not be necessary that the duty be
absolutely expressed, it must however, be clear. The
writ will not issue to compel an official to do anything
which is not his duty to do or which is his duty not to do,
or give to the applicant anything to which he is not
entitled by law. The writ neither confers powers nor
imposes duties. It is simply a command to exercise a
power already possessed and to perform a duty already
imposed. (Emphasis supplied)
Petitioners invoke the provisions of the
Constitution and the Clean Air Act in their prayer for
issuance of a writ of mandamus commanding the
respondents to require PUVs to use CNG as an
alternative fuel. Although both are general mandates
that do not specifically enjoin the use of any kind
of fuel, particularly the use of CNG, there is an
executive order implementing a program on the use of
CNG by public vehicles. Executive Order No. 290,
entitled Implementing the Natural Gas Vehicle Program
for Public Transport (NGVPPT), took effect on February
24, 2004. The program recognized, among others,
natural gas as a clean burning alternative fuel for vehicle
which has the potential to produce substantially lower
pollutants. Paragraph 1.2, Section 1 of E.O. No. 290
cites as one of its objectives, the use of CNG as a clean
alternative fuel for transport. Furthermore, one of the
components of the program is the development of CNG
refueling stations and all related facilities in strategic
locations in the country to serve the needs of CNG-
powered PUVs. Par. 4.5, Section 4 tasks the DOTC,
working with the DOE, to develop an implementation
plan for "a gradual shift to CNG fuel utilization in PUVs
and promote NGVs [natural gas vehicles] in Metro
Manila and Luzon through the issuance of
directives/orders providing preferential franchises in
present day major routes and exclusive franchises to
NGVs in newly opened routes…" To a certain extent,
the instant petition had been mooted by the
issuance of E.O. No. 290.
The writ of mandamus is unavailing in this
case. Mandamus is available only to compel the doing
of an act specifically enjoined by law as a duty. Here,
there is no law that mandates the respondents LTFRB
and the DOTC to order owners of motor vehicles to use
CNG. At most the LTFRB has been tasked by E.O. No.
290 in par. 4.5 (ii), Section 4 "to grant preferential and
exclusive Certificates of Public Convenience (CPC) or
franchises to operators of Natural Gas Vehicles based on
the results of the DOTC surveys."
In sum, petitioners are unable to pinpoint the
law that imposes an indubitable legal duty on
respondents that will justify a grant of the writ of
mandamus compelling the use of CNG for public utility
vehicles. It appears that more properly, the legislature
should provide first the specific statutory remedy to the
complex environmental problems bared by herein
petitioners before any judicial recourse by mandamus is
taken.
Exception: When there is grave abuse of discretion
First Philippine Holdings Corporation v.
Sandiganbayan (1996)
Facts: In Civil Case No. 0035 pending before the
respondent Sandiganbayan, the PCGG prays for the
return, reconveyance, accounting and restitution - with
damages - of certain funds and properties which were
allegedly acquired by private respondents through
"abuse of right and power and through unjust
enrichment". Part of these funds and properties are
some 6,299,177 sequestered shares of stock in the
Philippine Commercial International Bank (PCIBank)
which were allegedly acquired by the respondent
spouses Romualdez, as beneficial owners, in violation of
the Anti-Graft and Corrupt Practices Act, as amended,
and therefore subject to forfeiture in favor of the
Republic for being "unexplained wealth". Said shares
were allegedly purchased from petitioner by respondent
Romualdez using respondents Equities and Narciso as
"his dummy buyers."
Petitioner filed a "Motion for Leave to
Intervene and to Admit Complaint in Intervention" in
said Civil Case No. 0035, alleging that the PCIBank
shares were obtained by means of fraud. Thus,
petitioner prayed for the nullification of the Sale of
Stocks and Escrow Agreement" and for the return of the
shares to it. However, the respondent Sandiganbayan
denied the motion to intervene.
Aggrieved, petitioner filed an original action for
certiorari and mandamus to review and set aside a
Resolution of the respondent Sandiganbayan denying its
motion to intervene and litigate its claim of ownership
over the shares.
The Solicitor General, in his Comment stated
that petitioner did not have a "legal interest" to
intervene because "(t)he judgment would merely render
defendant Benjamin Romualdez and his corresponding
co-defendants personally obligated to either return or
reconvey said shares of stock to the Republic and would
not bar petitioner’s cause of action to invalidate the
"Sale of Stock and Escrow-Agreement."
Issue: Whether or not the writ of mandamus can be
issued to compel the Sandiganbayan to grant the motion
for intervention.
Held: Yes. First, the FPHC has the right to intervene in
this case. Petitioner has a legal interest in the shares
which are the subject of the controversy. At the very
least, it is "so situated as to be adversely affected by a
distribution or disposition of the (sequestered shares) in
the custody of the court".
Second, the Sandiganbayan has the legal
authority to declare as void the sale of the disputed
PCIBank shares in favor of respondents Narciso and
Equities as alleged dummies of respondent Romualdez.
The jurisdiction of the Sandiganbayan has been clarified
in the case of PCGG vs. Hon. Emmanuel G. Peña, etc.,et
al. and subsequent cases as extending not only to the
principal causes of action, i.e., the recovery of alleged
ill-gotten wealth, but also to "all incidents arising from,
incidental to, or related to, such cases," such as the
dispute over the sale of the shares, the propriety of the
issuance of ancillary writs or provisional remedies
Page 221
Civil Procedure
ESGUERRA NOTES
relative thereto, the sequestration thereof, which may
not be made the subject of separate actions or
proceedings in another forum.
In Republic vs. Sandiganbayan, the Supreme
Court resolved that the Sandiganbayan had jurisdiction
to grant a motion for intervention to file an answer in a
suit (similar to the case a quo) pending before the
respondent Sandiganbayan for the reconveyance of
(some lots and) shares of stock. Intervention is not an
independent action, but is ancillary and supplemental to
an existing litigation. Since the respondent
Sandiganbayan has the exclusive and original
jurisdiction over the principal case, it has likewise3.
original and exclusive jurisdiction over the private
respondents' action for intervention therein.
From the foregoing, respondent
Sandiganbayan abused its discretion in denying the
motion to intervene because, clearly, the question of
ownership of the shares under sequestration is within its
jurisdiction, being an incident arising from or in
connection with the case under its exclusive and original
jurisdiction. With the denial of its intervention,
petitioner is deprived of a remedy in law to recover its
property alleged to have been taken illegally from it.
As provided under Rule 12, Sec. 2 (b),
intervention shall be allowed "in the exercise of
discretion" by a court. Ordinarily, mandamus will not
prosper to compel a discretionary act. But where there is
"gross abuse of discretion, manifest injustice or palpable
excess of authority" equivalent to denial of a settled
right to which petitioner is entitled, and there is no other
plain, speedy and adequate remedy, the writ shall issue.
These exceptions were recognized by this
Court in Kant Kwong vs. PCGG, et al. as follows:
Although, as averred by respondents, the recognized
rule is that, in the performance of an official duty or act
involving discretion, the corresponding official can only
be directed by Mandamus to act but not to act one way
or the other, "yet it is not accurate to say that the writ
will never issue to control his discretion. There is an
exception to the rule if the case is otherwise proper, as
in cases of gross abuse of discretion, manifest injustice
or palpable excess of authority."
In Antiquera vs. Baluyot, et al., such
exceptions were allowed, "because the discretion must
be exercised under the law, and not contrary to law.
Common requisites
1. Verified petition (Sections 2 and 3 of Rule 65);
2. When and where to file petition (Section 4 of
Rule 65)
 The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or
resolution.
 In case a motion for reconsideration or new trial
is timely filed, whether such motion is required or
not, the sixty (60) day period shall be counted
from notice of the denial of said motion.
 The petition shall be filed in the Supreme Court
or, if it relates to the acts or omissions of a lower
court or of a corporation, board, officer or
person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by
the Supreme Court. It may also be filed in the
Court of Appeals whether or not the same is in
aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its appellate
jurisdiction. If it involves the acts or omissions of
a quasi-judicial agency, unless otherwise
provided by law or these Rules, the petition shall
be filed in and cognizable only by the Court of
Appeals.
3. Jurisdiction to issue writ
Fortich v. Corona (1998)
Facts: The strikers protested the 29 March 1996
Decision of the Office of the President (OP), issued
through then Executive Secretary Ruben D. Torres in OP
Case No. 96-C-6424, which approved the conversion of
a one hundred forty-four (144)-hectare land from
agricultural to agro-industrial/institutional area. This led
the Office of the President, through then Deputy
Executive Secretary Renato C. Corona, to issue the so-
called Win-Win Resolution on 7 November 1997,
substantially modifying its earlier Decision after it had
already become final and executory. The said Resolution
modified the approval of the land conversion to agro-
industrial area only to the extent of forty-four (44)
hectares, and ordered the remaining one hundred (100)
hectares to be distributed to qualified farmer-
beneficiaries.
A copy of the Win-Win Resolution was received
by Governor Carlos O. Fortich of Bukidnon, Mayor Rey B.
Baula of Sumilao, Bukidnon, and NQSRMDC on 24
November 1997 and, on 4 December 1997, they filed
with the Supreme Court a petition for certiorari,
prohibition (under Rule 65 of the Revised Rules of Court)
and injunction with urgent prayer for a temporary
restraining order and/or writ of preliminary injunction
(under Rule 58, ibid.), against then Deputy Executive
Secretary Renato C. Corona and DAR Secretary Ernesto
D. Garilao.
Respondents, through the Solicitor General,
opposed the petition and prayed that it be dismissed
outright on the ground, among others, that the proper
remedy of petitioners should have been to file a petition
for review directly with the Court of Appeals in
accordance with Rule 43 of the Revised Rules of Court.
Issue: Whether petitioners correctly filed the petition
for certiorari, prohibition and injunction with the
Supreme Court?
Held: Yes. It is true that under Rule 43, appeals from
awards, judgments, final orders or resolutions of any
quasi-judicial agency exercising quasi-judicial functions,
including the Office of the President, may be taken to
the Court of Appeals by filing a verified petition for
review within fifteen (15) days from notice of the said
judgment, final order or resolution, whether the appeal
involves questions of fact, of law, or mixed questions of
fact and law. However, in this particular case, the
remedy prescribed in Rule 43 is inapplicable considering
that the petition contains an allegation that the
challenged resolution is patently illegal and was issued
with grave abuse of discretion and beyond his
(respondent Secretary Renato C. Corona’s) jurisdiction
Page 222
Civil Procedure
ESGUERRA NOTES
when said resolution substantially modified the earlier
OP Decision of 29 March 1996 which had long become
final and executory. In other words, the crucial issue
raised here involves an error of jurisdiction, not an error
of judgment which is reviewable by an appeal under
Rule 43. Thus, the appropriate remedy to annul and set
aside the assailed resolution is an original special civil
action for certiorari under Rule 65, as what the
petitioners have correctly done.
The office of a writ of certiorari is restricted to
truly extraordinary cases cases in which the act of the
lower court or quasi-judicial body is wholly void. Section
1 of Rule 65 mandates that the person aggrieved by the
assailed illegal act may file a verified petition (for
certiorari) in the proper court. Under Section 4 of Rule
65, the Supreme Court, Court of Appeals and Regional
Trial Court have original concurrent jurisdiction to issue
a writ of certiorari, prohibition and mandamus. But the
jurisdiction of these three (3) courts are also delineated
in that, if the challenged act relates to acts or omissions
of a lower court or of a corporation, board, officer or
person, the petition must be filed with the Regional Trial
Court which exercises jurisdiction over the territorial
area as defined by the Supreme Court. And if it involves
the act or omission of a quasi-judicial agency, the
petition shall be filed only with the Court of Appeals,
unless otherwise provided by law or the Rules of
Court. The Supreme Court clearly discussed this matter
of concurrence of jurisdiction in People vs. Cuaresma,
et. al., thus:
x x x. This Court’s original jurisdiction to issue
writs of certiorari (as well as prohibition, mandamus,
quo warranto, habeas corpus and injunction) is not
exclusive. It is shared by this Court with Regional Trial
Courts (formerly Courts of First Instance), which may
issue the writ, enforceable in any part of their respective
regions. It is also shared by this Court, and by the
Regional Trial Court, with the Court of Appeals
(formerly, Intermediate Appellate Court), although prior
to the effectivity of Batas Pambansa Bilang 129 on
August 14, 1981, the latters competence to issue the
extraordinary writs was restricted to those in aid of its
appellate jurisdiction. This concurrence of jurisdiction is
not, however, to be taken as according to parties
seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application
therefor will be directed. There is after all a hierarchy of
courts. That hierarchy is determinative of the venue of
appeals, and should also serve as a general determinant
of the appropriate forum for petitions for the
extraordinary writs. A becoming regard for that judicial
hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level
(inferior) courts should be filed with the Regional Trial
Court, and those against the latter, with the Court of
Appeals.
Who should be respondents
1997 Rules on Civil Procedure, Rule 65
Section 5. Respondents and costs in certain cases.
— When the petition filed relates to the acts or
omissions of a judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or person, the
petitioner shall join, as private respondent or
respondents with such public respondent or
respondents, the person or persons interested in
sustaining the proceedings in the court; and it shall be
the duty of such private respondents to appear and
defend, both in his or their own behalf and in behalf of
the public respondent or respondents affected by the
proceedings, and the costs awarded in such
proceedings in favor of the petitioner shall be against
the private respondents only, and not against the
judge, court, quasi-judicial agency, tribunal,
corporation, board, officer or person impleaded as
public respondent or respondents.
Unless otherwise specifically directed by the court
where the petition is pending, the public respondents
shall not appear in or file an answer or comment to the
petition or any pleading therein. If the case is elevated
to a higher court by either party, the public
respondents shall be included therein as nominal
parties. However, unless otherwise specifically directed
by the court, they shall not appear or participate in the
proceedings therein.
Contents of petition
 Section 2 of Rule 65 provides that the petition
for prohibition shall be accompanied by a
certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings
and documents relevant and pertinent thereto,
and a sworn certification of non-forum shopping
as provided in the third paragraph of Section 3 of
Rule 46.
 Section 3 of Rule 65 provides that the petition
for mandamus shall also contain a sworn
certification of non-forum shopping as provided in
the third paragraph of Section 3 of Rule 46.
Non-forum shopping certification
Section 3 of Rule 46 provides:
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.
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
Page 223
Civil Procedure
ESGUERRA NOTES

certified true copy of the judgment, order, resolution, or The court, however, may dismiss the petition if it
ruling subject thereof, such material portions of the finds the same to be patently without merit, prosecuted
record as are referred to therein, and other documents manifestly for delay, or that the questions raised
relevant or pertinent thereto. The certification shall be therein are too unsubstantial to require consideration.
accomplished by the proper clerk of court or by his duly
authorized representative, or by the proper officer of the Section 9. Service and enforcement of order or
court, tribunal, agency or office involved or by his duly judgment. — A certified copy of the judgment rendered
authorized representative. The other requisite number of in accordance with the last preceding section shall be
copies of the petition shall be accompanied by clearly served upon the court, quasi-judicial agency, tribunal,
legible plain copies of all documents attached to the corporation, board, officer or person concerned in such
original. manner as the court may direct, and disobedience
thereto shall be punished as contempt. An execution
The petitioner shall also submit together with may issue for any damages or costs awarded in
the petition a sworn certification that he has not accordance with section 1 of Rule 39.
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 Rule 66
must state the status of the same; and if he should Quo Warranto
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 Definition
other tribunal or agency, he undertakes to promptly
inform the aforesaid courts and other tribunal or agency Quo warranto and mandamus distinguished
thereof within five (5) days therefrom.
Lota v. CA (1961)
Other common provisions/requisites:
Facts: Sangalang alleged that he was the caretaker of
1997 Rules on Civil Procedure, Rule 65 the municipal cemetery of Taal, Batangas and he was
unlawfully ousted from office. He filed a case against
Section 6. Order to comment. — If the petition is Lota, the mayor of tall who allegedly ousted him from
sufficient in form and substance to justify such process, office and appointed Beron.
the court shall issue an order requiring the respondent
or respondents to comment on the petition within ten The CFI declared Sangalang as the legally appointed
(10) days from receipt of a copy thereof. Such order cemetery porter. On appeal, Lota contended that the CA
shall be served on the respondents in such manner as erred in holding that the present action is quo warranto.
the court may direct together with a copy of the
petition and any annexes thereto.
Issue: Whether the case was one of quo warranto
In petitions for certiorari before the Supreme Court
Held: Yes. The claim that the instant action is one
and the Court of Appeals, the provisions of section 2,
of mandamus, not quo warranto, is devoid of basis.
Rule 56, shall be observed. Before giving due course
While quo warranto and mandamus are often concurrent
thereto, the court may require the respondents to file
remedies, however, there exists a clear distinction
their comment to, and not a motion to dismiss, the
between the two. The authorities are agreed that quo
petition. Thereafter, the court may require the filing of
warranto is the remedy to try the right to an office or
a reply and such other responsive or other pleadings as
franchise and to oust the holder from its enjoyment,
it may deem necessary and proper.
while mandamus only lies to enforce clear legal duties,
not to try disputed titles, 38 C.J. 546; 2 Moran,
Section 7. Expediting proceedings; injunctive
Comments on the Rules of Court, 1957 ed., 200; that
relief. — The court in which the petition is filed may
where here is usurpation or intrusion into an office, quo
issue orders expediting the proceedings, and it may
warranto is the proper remedy, Lino Luna vs. Rodriguez,
also grant a temporary restraining order or a writ of
36 Phil. 491, and that where the respondent, without
preliminary injunction for the preservation of the rights
claiming any right to an Office, excludes the petitioner
of the parties pending such proceedings. The petition
therefrom, he remedy is mandamus, not quo
shall not interrupt the course of the principal case
warranto. Manalo vs. Sevilla, 24 Phil. 609; Lino Luna vs.
unless a temporary restraining order or a writ of
Rodriguez,supra.
preliminary injunction has been issued against the
public respondent from further proceeding in the case.
As we analyze the facts in the light of the above rules,
the instant action is clearly one of quo warranto,
Section 8. Proceedings after comment is filed. —
although mandamus is also invoked therein as an
After the comment or other pleadings required by the
ancillary remedy. It also appears that Moises Sangalang
court are filed, or the time for the filing thereof has
alleges in his complaint that he had the right to the
expired, the court may hear the case or require the
possession and enjoyment of said office to which he had
parties to submit memoranda. If after such hearing or
legally been appointed, and asks hat Jose Sangalang,
submission of memoranda or the expiration of the
who is occupying it unlawfully, be ousted. The present
period for the filing thereof the court finds that the
action, therefore, is one whose purpose is to try the
allegations of the petition are true, it shall render
right or title to a public office and oust he alleged
judgment for the relief prayed for or to which the
unlawful holder from its enjoyment. Such proceeding
petitioner is entitled.
and remedy could only be litigated in a quo
warranto action according to the authorities.

Page 224
Civil Procedure
ESGUERRA NOTES
Liban v. Gordon (2009)
Facts: Petitioners filed with the Supreme Court a
Petition to Declare Richard J. Gordon as Having Forfeited
His Seat in the Senate. Petitioners are officers of the
Board of Directors of the Quezon City Red Cross
Chapter while Gordon is Chairman of the Philippine
National Red Cross (PNRC) Board of Governors. During
Gordon’s incumbency as a member of the Senate of the
Philippines, he was elected Chairman of the PNRC during
the 23 February 2006 meeting of the PNRC Board of
Governors. Petitioners allege that by accepting the
chairmanship of the PNRC Board of Governors,
respondent has ceased to be a member of the Senate as
provided in Section 13, Article VI of the Constitution
In his Comment, Gordon asserts that
petitioners have no standing to file this petition which
appears to be an action for quo warranto, since the
petition alleges that Gordon committed an act which, by
provision of law, constitutes a ground for forfeiture of his
public office. Petitioners do not claim to be entitled to
the Senate office of respondent. Under Section 5, Rule
66 of the Rules of Civil Procedure, only a person
claiming to be entitled to a public office usurped or
unlawfully held by another may bring an action for quo
warranto in his own name. If the petition is one for quo
warranto, it is already barred by prescription since under
Section 11, Rule 66 of the Rules of Civil Procedure, the
action should be commenced within one year after the
cause of the public officers forfeiture of office.
Issue: Whether the petitioners may legally file this
petitioner against Gordon.
Held: No. Thus, petitioners are alleging that by
accepting the position of Chairman of the PNRC Board of
Governors, respondent has automatically forfeited his
seat in the Senate. In short, petitioners filed an action
for usurpation of public office against respondent, a
public officer who allegedly committed an act which
constitutes a ground for the forfeiture of his public
office. Clearly, such an action is for quo warranto,
specifically under Section 1(b), Rule 66 of the Rules of
Court.
Quo warranto is generally commenced by the
Government as the proper party plaintiff. However,
under Section 5, Rule 66 of the Rules of Court, an
individual may commence such an action if he claims to
be entitled to the public office allegedly usurped by
another, in which case he can bring the action in his own
name. The person instituting quo warranto proceedings
in his own behalf must claim and be able to show that
he is entitled to the office in dispute, otherwise the
action may be dismissed at any stage. In the present
case, petitioners do not claim to be entitled to the
Senate office of respondent. Clearly, petitioners have no
standing to file the present petition.
Period for filing – within one (1) year from date
petitioner ousted from his position
Galano v. Roxas (1975)
Facts: Roxas was elected mayor of San Mateo, Rizal.
From 2 and 6 January 1968, 24 policemen filed their
resignations and application of their terminal leaves. The
resignations were accepted by the mayor and the
payments on the applications for leave were paid to the
24 petitioners.
On 10 January 1968, Petitioners sent letters to
the Police Commission and CSC complaining that the
mayor threatened them into filing their resignations. The
hearing officer of the Police Commission recommended
that petitioners be reinstated and pay their back
salaries.
Issue: Whether their petition will prosper.
Held: No. In order to make the parties aware already of
another fatal and incurable defect of the case of
petitioners and thereby save those concerned from any
further futile effort to pursue any judicial remedy, with
the concomitant waste of money and time, the
unbending jurisprudence in this jurisdiction is to the
effect that a petition for quo warranto and mandamus
affecting titles to public office must be filed within one
(1) year from the date the petitioner is ousted from his
position.
Accordingly, after said period has lapsed, the
remedy of the aggrieved party, if any, lies exclusively
with administrative authorities. In the case at bar, the
theory of petitioners themselves is that they were
separated from the service thru the ruse of accepting
their "courtesy resignations" between January 2 and 6,
1968 and the record shows that they were aware of the
supposed illegality of their ouster as early as January
10, 1968, the date of their separate letters to the Police
Commission and the Civil Service Commission
impugning the action of respondent mayor. It is thus
evident that in the premises, they are beyond the help
of the courts, their time to resort thereto having lapsed.
The reason is obvious. While it may be
desirable that administrative remedies be first resorted
to, no one is compelled or bound to do so; and as said
remedies neither are pre-requisite to nor bar the
institution of quo warranto proceedings, it follows that
he who claims the right to hold a public office allegedly
usurped by another and who desires to seek redress in
the courts, should file the proper judicial action within
the reglementary period.
Exception
Cristobal v. Melchor (1977)
Facts: Cristobal was formerly employed as a private
secretary in the President’s Private Office in Malacañang.
On or about the second week of January, 1962, the then
Executive Secretary Mutuc, by means of a letter dated
January 1, 1962, informed Cristobal that his he is being
“terminated effective today”. A similar letter was
addressed by Secretary Mutuc to some other employees
in the Office of the President. The dismissed employees
appealed to the President by means of letters dated
January 3, 1962 and January 26, 1962 for a
reconsideration of their separation from the service. In a
letter dated February 27, 1962, their request for
reconsideration was denied by Secretary Mutuc, acting
by authority of the President.
Page 225
Civil Procedure
ESGUERRA NOTES
On March 24, 1962, five of the employees who
were separated (excluding Cristobal) filed a civil action
before CFI a complaint against Secretary Mutuc and the
cash disbursing officer of the Office of the President
praying for reinstatement and the payment of their
salaries effective as of January 1, 1962 (Ingles case).
From a judgment dismissing their complaint, the said
employees appealed to the Supreme Court which
rendered a decision promulgated on November 29, 1968
reversing the dismissal of their complaint and declaring
their removal from office as illegal and contrary to law,
and ordering their reinstatement and the payment of
their salaries from January 1, 1962 up to the date of
their actual reinstatement.
Sometime in Ma 1962, when the civil action
filed by Ingles, et als. was still pending in the CFI. the
dismissed employees who filed said action were recalled
to their , without prejudice to the continuation of their
civil action, With respect to the other employees who
were not reinstated, efforts were exerted by Secretary
Mutuc to look for placements outside of Malacañang so
that they may be re-employed. Cristobal was one of
those who had not been fortunate enough to be
reappointed to any positions as befits his qualifications.
He waited for Secretary Mutuc to make good
his assurance that he would be recalled to the service,
until Secretary Mutuc was replaced by other executive
secretaries who likewise assured the plaintiff of
assistance to be reemployed at "the opportune time."
After the decision of the of the Supreme Court
of the Ingles case on November 29, 1968, Cristobal
addressed a letter to the Office of the President dated
January 19, 1969, requesting reinstatement to his
former position and the payment of salary from January
1, 1962 up to the time of actual reinstatement,
supposedly in accordance with the Ingles case. This
request was denied repeatedly by the Office of the
President in successive letters addressed to the plaintiff
dated September 1, 1969, January 19, 1970, April 23,
1970, May 23, 1970, and May 19, 1971, the last of
which declared the matter "definitely closed."
Having received the letter of May 19, 1971,
from the Office of the President, Jose Cristobal filed on
August 10, 1971, with the Court of First Instance of
Manila a complaint
Issue: Whether the case is barred for Cristobal’s failure
to file the case within the 1 year prescriptive period
Whether plaintiff can seek judicial relief for not
having filed his complaint within one year?
Held: Yes. There are certain exceptional circumstances
attending which take this case out of the rule enunciated
above and lead Us to grant relief to appellant. Thus —
There was no acquiescence to or inaction on
the part of Jose Cristobal amounting to abandonment of
his right to reinstatement in office.
We lay stress on the findings of the trial court
based on the uncommitted evidence of plaintiff Cristobal
that upon receipt of the letter or January 1, 1962,
advising him of his separation from the service,
Cristobal, with the other dismissed employees, sought
reconsideration in a letter dated January 3, 1962, calling
inter alia the attention of then Executive Secretary
Amelito Mutuc that he (Cristobal) was a civil eligible
employee with eight years of service in the government
and consequently entitled to security of tenure under
the Constitution. This was followed by another letter of
January 26, 1962.
Reconsideration having been denied, a
complaint was filed on March 24, 1062, with the Court of
First Instance of Manila entitled "Raul R. Ingles, et al.
vs. Amelito R. Mutuc, et al.", (Civil Case 49965) which
prayed for reinstatement and payment of salaries as of
January 1, 1962. The trial court dismiss this complaint
but upon appeal to the Supreme Court the judgment
was reversed in a Decision promulgated on November
29, 1968, in G.R. L-20390, the Court holding that the
removal of the plaintiff-employees was illegal and
contrary to law and that they were entitled to be
reinstated with payment of their salaries from January 1,
1962 up to the date of their actual reinstatement.5
Cristobal was not one of the plaintiffs in the
civil case, it is true, but his non-participation is not fatal
to his cause of action. During the pendency of the civil
case Cristobal continued to press his request for
reinstatement together with the other employees who
had filed the complaint and was in fact promised
reinstatement as will be shown more in detail later.
More importantly, Cristobal could be expected
— without necessarily spending time and money by
going to court — to relied upon the outcome of the case
filed by his co-employees to protect his interests
considering the similarity of his situation to that of the
plaintiffs therein and the Identifical relief being sought.
Rule 66 of the 1997 Rules of Civil Procedure does
not apply to quo warranto cases against persons
who usurp an office in a private corporation
Calleja v. Panday (2006)
Facts: Panday et al. filed a petition with the Regional
Trial Court (“RTC”) of San
Jose, Camarines Sur for quo warranto under Rule 66 of
the Rules of Court against Calleja et al., alleging that
from 1985 up to the filing of the petition with the trial
court, they had been members of the board of directors
and officers of St. John Hospital, Incorporated, but
sometime in May 2005, Calleja et al., who are also
among the incorporators and stockholders of said
corporation, forcibly and with the aid of armed men
usurped the powers which supposedly belonged to
Panday et al.
The RTC of San Jose, Camarines Sur issued an
Order transferring the case to the RTC in Naga City,
since the verified petition showed Panday et al. to be
residents of Naga City, then pursuant to Section 7, Rule
66 of the 1997 Rules of Civil Procedure, the action
for quo warranto should be brought in the RTC
Page 226
Civil Procedure
ESGUERRA NOTES
exercising jurisdiction over the territorial area where the
respondents or any of the respondents
resides. However, the Executive Judge of
RTC, Naga City refused to receive the case folder of the
subject case for quo warranto, stating that improper
venue is not a ground for transferring
a quo warranto case to another administrative
jurisdiction.
In its assailed Order, the RTC of San Jose,
Camarines Sur ruled in part that:
It is undisputed that the plaintiffs cause of
action involves controversies arising out of intra-
corporate relations, between and among stockholders,
members or associates of the St. John Hospital Inc.
which originally under PD 902-A approved on March 11,
1976 is within the original and exclusive jurisdiction of
the Securities and Exchange Commission to try and
decide in addition to its regulatory and adjudicated
functions (Section 5, PD 902-A). Upon the advent of RA
8799…, the Commission’s jurisdiction over all cases
enumerated in Section 5, Presidential Decree 902-A
were transferred []to the Court of general jurisdiction or
the appropriate Regional Trial Court with a proviso that
the Supreme Court in the exercise of its authority may
designate the Regional Trial Court branches that shall
exercise jurisdiction over these cases. Pursuant to this
mandate of RA 8799, the Supreme Court…, promulgated
A.M. No. 00-11-03-SC…designat[ing] certain branches of
the Regional Trial Court to try and decide Securities and
Exchange Commission Cases arising within their
respective territorial jurisdiction with respect to the
National Capital Region and within the respective
provinces in the First to Twelve Judicial
Region. Accordingly, in the Province of Camarines Sur,
(Naga City) RTC Branch 23 presided by the Hon. Pablo
M. Paqueo, Jr. was designated as special court (Section
1, A.M. No. 00-11-03-SC).
… … …
In the light of the above-noted observations
and discussion, the Motion to
Dismiss is DENIED pursuant to the Interim Rules of
Procedure for Intra-Corporate Controversies (A.M. No.
01-2-04-SC) which mandates that motion to dismiss is a
prohibited pleading (Section 8) and in consonance with
Administrative Order 8-01 of the Supreme Court dated
March 1, 2001, this case is hereby
ordered remanded to the Regional Trial Court Branch
23, Naga City which under A.M. No. 00-11-03-SC has
been designated as special court to try and decide intra-
corporate controversies under R.A. 8799.
Issue: Whether it was proper for the RTC of San Jose,
Camarines Sur to order the transfer of venue of the case
to RTC Naga based on Rule 66 of the Rules of Court,
considering that the case involved an alleged usurpation
in the offices, powers and functions of duly elected
members of the board of directors.
Held: No. It should be noted that allegations in a
complaint for quo warranto that certain persons usurped
the offices, powers and functions of duly elected
members of the board, trustees and/or officers make
out a case for an intra-corporate controversy. Prior to
the enactment of R.A. No. 8799, the Court, adopting
Justice Jose Y. Ferias view, declared in Unilongo v. Court
of Appeals that Section 1, Rule 66 of the 1997 Rules of
Civil Procedure is limited to actions of quo
warranto against persons who usurp a public office,
position or franchise; public officers who forfeit their
office; and associations which act as corporations
without being legally incorporated, while
[a]ctions of quo warranto against corporations, or
against persons who usurp an office in a corporation, fall
under the jurisdiction of the Securities and Exchange
Commission and are governed by its rules. (P.D. No.
902-A as amended).
However, R.A. No. 8799 was passed and
Section 5.2 thereof provides as follows:
5.2. The Commissions jurisdiction over all
cases enumerated under Section 5 of Presidential
Decree No. 902-A is hereby transferred to the Courts of
general jurisdiction or the appropriate Regional Trial
Court: Provided, That the Supreme Court in the exercise
of its authority may designate the Regional Trial Court
branches that shall exercise jurisdiction over these
cases. xxx
Therefore, actions of quo warranto against
persons who usurp an office in a corporation, which
were formerly cognizable by the Securities and
Exchange Commission under PD 902-A, have been
transferred to the courts of general jurisdiction. But, this
does not change the fact that Rule 66 of the 1997 Rules
of Civil Procedure does not apply to quo warranto cases
against persons who usurp an office in a private
corporation. Presently, Section 1(a) of Rule 66 reads
thus:
Section 1. Action by Government against
individuals. An action for the usurpation of a public
office, position or franchise may be commenced by a
verified petition brought in the name of the Republic of
the Philippines against
(a) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office, position or
franchise;
xxxx
As explained in the Unilongo case, Section 1(a)
of Rule 66 of the present Rules no longer contains the
phrase or an office in a corporation created by authority
of law which was found in the old Rules. Clearly, the
present Rule 66 only applies to actions
of quo warranto against persons who usurp a
public office, position or franchise; public officers
who forfeit their office; and associations which act
as corporations without being legally incorporated
despite the passage of R.A. No. 8799. It is,
therefore, the Interim Rules of Procedure Governing
Intra-Corporate Controversies Under R.A. No. 8799
(hereinafter the Interim Rules) which applies to the
petition for quo warranto filed by Panday et al. before
the trial court since what is being questioned is the
authority of Calleja et al. to assume the office and act as
the board of directors and officers of St. John Hospital,
Incorporated.
Showing of clear right
General v. Urro (2011)
Facts: President Gloria Macapagal-Arroyo (“President
Arroyo”) appointed Imelda C. Roces (“Commissioner
Roces”) as Commissioner of the National Police
Commission on 20 September 2004. Under the law, she
Page 227
Civil Procedure
ESGUERRA NOTES
was supposed to serve said position for six (6) years,
had it not been for her untimely demise in September
2007. As a result, President Arroyo appointed petitioner
General’s appointment as acting Commissioner on 21
July 2008.
Later, President Arroyo appointed respondent
Urro to take the place of General. Urro’s appointment
paper was dated 5 March 2010. In a letter dated 19
March 2015, the Chief of Staff of the Department of
Interior and Local Government (DILG) expressed his
congratulations to Urro and attached his appointment
paper to said letter. Urro took his oath of office as
NAPOLCOM Commissioner on 25 March 2010.
On 22 March 2010, General filed the present
petition for quo warranto, and certiorari and/or
prohibition questioning the validity of Urro’s
appointment on the ground, among others, that the
appointment issued to him was really a regular
appointment since R.A. No. 6975 does not allegedly
allow an appointment of a NAPOLCOM Commissioner in
an acting capacity. As a regular appointee, the petitioner
argues that he cannot be removed from office except for
cause.
Issue: Whether Atty. General has clearly shown his
right to the position of Commissioner of the NAPOLCOM.
Held: No. There is nothing in the provisions of R.A. No.
6975 which prevents the president from appointing
NAPOLCOM commissioners in an acting capacity. Given
the wide latitude of the President’s appointing authority
(and the strict construction against any limitation on or
qualification of this power), the prohibition on the
President from issuing an acting appointment must
either be specific, or there must be a clear repugnancy
between the nature of the office and the temporary
appointment. No such limitation on the Presidents
appointing power appears to be clearly deducible from
the text of R.A. No. 6975. There is also nothing in the
enumeration of the functions of the members of the
NAPOLCOM that would be subverted or defeated by the
President’s appointment of an acting NAPOLCOM
Commissioner pending the selection and qualification of
a permanent appointee.
General’s appointment in an acting capacity
was subject to the condition that he shall surrender the
office once he is called to do so by the appointing
authority, the president of the Republic of the
Philippines. His separation from the service does not
import removal but merely the expiration of his term a
mode of termination of official relations that falls outside
the coverage of the constitutional provision on security
of tenure since no removal from office is involved. Thus,
General’s appointment as Acting Commissioner ipso
facto expired on July 21, 2009 when it was not renewed
either in an acting or a permanent capacity. With an
expired appointment, he technically now occupies no
position on which to anchor his quo warranto petition.
Quo warranto is a remedy to try disputes with
respect to the title to a public office. Generally, quo
warranto proceedings are commenced by the
Government as the proper party-plaintiff. However,
under Section 5, Rule 66 of the Rules of Court, an
individual may commence such action if he claims to be
entitled to the public office allegedly usurped by
another. We stress that the person instituting the quo
warranto proceedings in his own behalf must show that
he is entitled to the office in dispute; otherwise, the
action may be dismissed at any stage.
Emphatically, Section 6, Rule 66 of the
same Rules requires the
petitioner to state in the petition his right to the
public office and the respondent’s unlawful
possession of the disputed position.
As early as 1905, the Court already held
that for a petition for quo warranto to be successful, the
suing private individual must show a clear right to the
contested office. His failure to establish this right
warrants the dismissal of the suit for lack of cause of
action; it is not even necessary to pass upon the right of
the defendant who, by virtue of his appointment,
continues in the undisturbed possession of his office.
Since General merely holds an acting
appointment (and an expired one at that), he clearly
does not have a cause of action to maintain the present
petition. The essence of an acting appointment is its
temporariness and its consequent revocability at any
time by the appointing authority. The petitioner in a quo
warranto proceeding who seeks reinstatement to an
office, on the ground of usurpation or illegal deprivation,
must prove his clear right to the office for his suit to
succeed; otherwise, his petition must fail.
Rule 67
Expropriation
Distinction between eminent domain and
expropriation
Eminent domain - one of the inherent powers of the
state; it is the right to take or reassert dominion over
property within the state for public use or to meet a
public exigency and is said to be an essential party of
governance even in its most primitive form
Expropriation - process by which the power of eminent
domain is carried out; taking as of private owned
property, by government under eminent domain
Stages of expropriation; Period to appeal from
order of expropriation
Municipality of Biñan v. Garcia (1989)
Facts: The expropriation suit involved in this case was
commenced by complaint of the Municipality of Biñan,
Laguna filed in the Regional Trial Court of Laguna and
City of San Pablo, presided over by respondent Judge
Jose Mar Garcia. The complaint named as defendants
the owners of eleven (11) adjacent parcels of land in
Biñan. The land sought to be expropriated was intended
for use as the new site of a modern public market and
the acquisition was authorized by a resolution of the
Sangguniang Bayan of Biñan approved on April 11,
1983.
One of the defendants, Erlinda Francisco, filed
a "Motion to Dismiss" on the following grounds; (a) the
allegations of the complaint are vague and conjectural;
(b) the complaint violates the constitutional limitations
of law and jurisprudence on eminent domain; (c) it is
Page 228
Civil Procedure
ESGUERRA NOTES
oppressive; (d) it is barred by prior decision and
disposition on the subject matter; and (e) it states no
cause of action. She also filed a "Motion for Separate
Trial," alleging that she had, among other defenses, "a
constitutional defense of vested right via a pre-existing
approved Locational Clearance” which supposedly
constitutes a legal bar against the right of plaintiff
Municipality to expropriate the said property.
Thereafter, the respondent Judge issued an
Order dated July 27, 1984, dismissing the complaint as
against defendant Francisco and amending the Writ of
Possession so as to exclude therefrom and from its force
and effects said defendant and her property. On even
date, the notice of Order was served on the Municipality.
The Municipality filed on August 17, 1984 a
Motion for Reconsideration. It argued, among others,
that the locational clearance did not mean that other
persons are already prevented from filing locational
clearance for the same project, and so could not be
considered a bar to expropriation. Francisco filed an
"Ex-Parte Motion for Execution and/or Finality of Order,"
contending that the Order of July 27, 1984 had become
final and executory on August 12, 1984 for failure of the
Municipality to file a motion for reconsideration and/or
appeal within the reglementary period, 14 i.e fifteen (15)
days counted from the notice of the final order appealed
from.
The respondent court issued an Order
declaring the Municipality's motion for reconsideration
dated August 15, 1984 to have been filed out of time.
Issue: Whether or not the Motion for Reconsideration
was filed out of time.
Held: No. There are two (2) stages in every action of
expropriation. The first is concerned with the
determination of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of its
exercise in the context of the facts involved in the
suit. 19 It ends with an order, if not of dismissal of the
action, "of condemnation declaring that the plaintiff has
a lawful right to take the property sought to be
condemned, for the public use or purpose described in
the complaint, upon the payment of just compensation
to be determined as of the date of the filing of the
complaint." An order of dismissal, if this be ordained,
would be a final one, of course, since it finally disposes
of the action and leaves nothing more to be done by the
Court on the merits. So, too, would an order of
condemnation be a final one, for thereafter, as the Rules
expressly state, in the proceedings before the Trial
Court, "no objection to the exercise of the right of
condemnation (or the propriety thereof) shall be filed or
heard.
The second phase of the eminent domain
action is concerned with the determination by the Court
of "the just compensation for the property sought to be
taken." This is done by the Court with the assistance of
not more than three (3) commissioners. 23 The order
fixing the just compensation on the basis of the
evidence before, and findings of, the commissioners
would be final, too. It would finally dispose of the second
stage of the suit, and leave nothing more to be done by
the Court regarding the issue. A dissatisfied party may
seek reversal of the order by taking an appeal
therefrom.
A similar two-phase feature is found in the
special civil action of partition and accounting under Rule
69 of the Rules of Court.
This Court has settled the question of the
finality and appealability of a decision or order decreeing
partition or recovery of property and/or accounting. In
Miranda v. Court of Appeals, it was held that a decision
or order of partition is not final because it leaves
something more to be done in the trial court for the
complete disposition of the case, i.e, the appointment of
commissioners, the proceedings for the determination
by said commissioners of just compensation, the
submission of their reports, and hearing thereon, and
the approval of the partition. As pointed out in Miranda,
imperative considerations of public policy, of sound
practice and adherence to the constitutional mandate of
simplified, just, speedy and inexpensive determination
of every action require that judgments for recovery (or
partition) of property with accounting be considered as
final judgments, duly appealable. This, notwithstanding
that further proceedings will still have to be rendered by
the party required to do so, it will be ventilated and
discussed by the parties, and will eventually be passed
upon by the Court.
No reason presents itself for different
disposition as regards cases of eminent domain. On the
contrary, the close analogy between the special actions
of eminent domain and partition already pointed out,
argues for the application of the same rule to both
proceedings. The Court therefore holds that in actions
of eminent domain, as in actions for partition, since no
less than two (2) appeals are allowed by law, the period
for appeal from an order of condemnation is thirty (30)
days counted from notice of order and not the ordinary
period of fifteen (15) days prescribed for actions in
general, conformably with the provision of Section 39 of
Batas Pambansa Bilang 129, in relation to paragraph 19
(b) of the Implementing Rules to the effect that in
"appeals in special proceedings in accordance with Rule
109 of the Rules of Court and other cases wherein
multiple appeals are allowed, the period of appeal shall
be thirty (30) days, a record of appeal being required.
The municipality's motion for reconsideration
filed on August 17, 1984 was therefore timely
presented, well within the thirty-day period laid down by
law therefor; and it was error for the respondent court
to have ruled otherwise and to have declared that the
order sought to be considered had become final and
executory.
Meaning of just compensation
“Just compensation” is the full and fair equivalent
of the property sought to be expropriated
Republic Act No. 8974 mandates immediate
payment of the initial just compensation prior to
the issuance of the writ of possession in favor of
the Government
Republic of The Philippines v. Hon. Gingoyon
(2005)
Facts: This case stemmed from the promulgation of the
Court’s decision in the 2003 case of Agan v. PIATCO.
This decision nullified the "Concession Agreement for the
Build-Operate-and-Transfer Arrangement of the Ninoy
Aquino International Airport Passenger Terminal III"
Page 229
Civil Procedure
ESGUERRA NOTES
entered into between the Philippine Government
(Government) and the Philippine International Air
Terminals Co., Inc. (PIATCO), on the ground, among
others, that Paircargo Consortium, predecessor of
PIATCO, did not possess the requisite financial capacity
when it was awarded the NAIA 3 contract and that the
agreement was contrary to public policy.
At the time of the promulgation of the 2003
Decision, the NAIA 3 facilities had already been built by
PIATCO and were nearing completion. However,
the ponencia was silent as to the legal status of the
NAIA 3 facilities following the nullification of the
contracts, as well as whatever rights of PIATCO for
reimbursement for its expenses. Thus, in its 2004
Resolution, the Supreme Court held that since the
structures comprising the NAIA IPT III facility are almost
complete and that funds have been spent by PIATCO in
their construction, the government, for it to take over
the facility, has to compensate respondent PIATCO as
builder of the said structures.
After the promulgation of the rulings in Agan,
the NAIA 3 facilities have remained in the possession of
PIATCO. Thus, the Government filed a complaint for
expropriation with the RTC. The Government deposited
the amount of P3,002,125,000.00 in Cash with the Land
Bank of the Philippines, representing the NAIA 3
terminal’s assessed value for taxation purposes.
The respondent Judge noted that under
Republic Act No. 8974, otherwise known as "An Act to
Facilitate the Acquisition of Right-of-Way, Site or
Location for National Government Infrastructure Projects
and For Other Purposes", the Government is required to
make immediate payment to the property owner upon
the filing of the complaint to be entitled to a writ of
possession, whereas in Rule 67, the Government is
required only to make an initial deposit with an
authorized government depositary. Moreover, Rule 67
prescribes that the initial deposit be equivalent to the
assessed value of the property for purposes of taxation,
unlike Rep. Act No. 8974 which provides, as the relevant
standard for initial compensation, the market value of
the property as stated in the tax declaration or the
current relevant zonal valuation of the Bureau of
Internal Revenue (BIR), whichever is higher, and the
value of the improvements and/or structures using the
replacement cost method. Accordingly, the Government
was prohibited from performing acts of ownership prior
to full payment of just compensation.
The Government insists that Rule 67 of the
Rules of Court governs the expropriation proceedings in
this case to the exclusion of all other laws. On the other
hand, PIATCO claims that it is Rep. Act No. 8974 which
does apply
Issue: Whether Rule 67 of the Rules of Court or Rep.
Act No. 8974 governs the expropriation proceedings in
this case.
Held: The pronouncement in the 2004 Resolution is
especially significant to this case in two aspects,
namely: (i) that PIATCO must receive payment of just
compensation determined in accordance with law and
equity; and (ii) that the government is barred from
taking over NAIA 3 until such just compensation is paid.
Thus, as things stood after the 2004 Resolution, the
right of the Government to take over the NAIA 3
terminal was preconditioned by lawful order on the
payment of just compensation to PIATCO as builder of
the structures.
Rule 67 outlines the procedure under which
eminent domain may be exercised by the Government.
Yet by no means does it serve at present as the solitary
guideline through which the State may expropriate
private property. For example, Section 19 of the Local
Government Code governs as to the exercise by local
government units of the power of eminent domain
through an enabling ordinance. And then there is Rep.
Act No. 8974, which covers expropriation proceedings
intended for national government infrastructure
projects.
Rep. Act No. 8974, which provides for a
procedure eminently more favorable to the property
owner than Rule 67, inescapably applies in instances
when the national government expropriates property
"for national government infrastructure projects." Thus,
if expropriation is engaged in by the national
government for purposes other than national
infrastructure projects, the assessed value standard and
the deposit mode prescribed in Rule 67 continues to
apply.
Under both Rule 67 and Rep. Act No. 8974, the
Government commences expropriation proceedings
through the filing of a complaint. The most crucial
difference between Rule 67 and Rep. Act No. 8974
concerns the particular essential step the Government
has to undertake to be entitled to a writ of possession.
Rule 67 merely requires the Government to deposit with
an authorized government depositary the assessed
value of the property for expropriation for it to be
entitled to a writ of possession. On the other hand, Rep.
Act No. 8974 requires that the Government make a
direct payment to the property owner before the writ
may issue. Moreover, such payment is based on the
zonal valuation of the BIR in the case of land, the value
of the improvements or structures under the
replacement cost method, or if no such valuation is
available and in cases of utmost urgency, the proffered
value of the property to be seized.
Clearly, the staging of expropriation
proceedings in this case with the exclusive use of Rule
67 would allow for the Government to take over the
NAIA 3 facilities in a fashion that directly rebukes the
2004 Resolution in Agan, since under Rule 67, all the
Government need do to obtain a writ of possession is to
deposit the amount equivalent to the assessed value
with an authorized government depositary. Applying
Rule 67 herein would violate the Court’s requirement in
the 2004 Resolution that there must first be payment of
just compensation to PIATCO before the Government
may take over the property.
As regards the proper amount which should be
paid to PIATCO by the Government before the writ of
possession may issue under Rep. Act No. 8974. The BIR
zonal valuation under Rep. Act No. 8974 cannot apply in
this case since zonal valuations are only for parcels of
land, not for airport terminals, and PIATCO cannot be
reimbursed or justly compensated for the value of the
parcel of land on which NAIA 3 stands, not being the
owner of said land. Nevertheless, Rep. Act No. 8974
permits an expedited means by which the Government
can immediately take possession of the property without
having to await precise determination of the valuation of
the improvements and structures. Section 4(c) of Rep.
Page 230
Civil Procedure
ESGUERRA NOTES
Act No. 8974 states that "in case the completion of a
government infrastructure project is of utmost urgency
and importance, and there is no existing valuation
of the area concerned, the implementing agency shall
immediately pay the owner of the property
its proferred value, taking into consideration the
standards prescribed in Section 5 [of the law].
In this case, the Court sees no impediment to
recognize the sum of P3 Billion which the Government
has deposited as the proffered value under Section 4(b)
of Rep. Act No. 8974. However, while the Court agrees
that P3 Billion should be considered as the correct
proffered value, still the Government cannot be
considered to have faithfully complied with Rep. Act No.
8974. For the law plainly requires direct payment to the
property owner, and not a mere deposit with the
authorized government depositary. Without such direct
payment, no writ of possession may be obtained. Rep.
Act No. 8974 represents a significant change from
previous expropriation laws such as Rule 67, or even
Section 19 of the Local Government Code. Rule 67 and
the Local Government Code merely provided that the
Government deposit the initial amounts antecedent to
acquiring possession of the property with, respectively,
an authorized Government depositary or the proper
court. In both cases, the private owner does not receive
compensation prior to the deprivation of property. On
the other hand, Rep. Act No. 8974 mandates immediate
payment of the initial just compensation prior to the
issuance of the writ of possession in favor of the
Government.
Accordingly, the Writ of Possession dated 21
December 2004 should be held in abeyance, pending
proof of actual payment by the Government to PIATCO
of the proffered value of the NAIA 3 facilities, which
totals P3,002,125,000.00.
Motion to dismiss is not permitted in a complaint
for expropriation
Lourdes Masikip V. The City of Pasig, et al. (2006)
Facts: Lourdes Masikip (“Lourdes”) is the registered
owner of a parcel of land in Barangay Caniogan, Pasig
City. Pursuant to an Ordinance enacted by the
Sangguinang Bayan of Pasig, Lourdes received a letter
from the City of Pasig (the “respondent”), informing her
of its intention to expropriate a portion of her land.
Lourdes replied that the intended expropriation of her
property is unconstitutional, invalid and oppressive.
Accordingly, respondent filed with the trial court a
complaint for expropriation. In response, Lourdes filed a
Motion to Dismiss. Thereafter, the trial court issued an
Order denying Lourdes’ Motion to Dismiss, on the
ground that there is genuine necessity to expropriate
the property. Aggrieved, Lourdes filed a Motion for
Reconsideration, which was likewise denied by the trial
court. Lourdes then filed a Petition for Certiorari with the
Court of Appeals (“CA”), which was dismissed for lack of
merit. In its Decision, the CA held that in filing a motion
to dismiss, Lourdes hypothetically admitted the truth of
the facts alleged in the complaint.
Issues: Did the CA err in applying the rule on
hypothetical admission in this case in relation to
Lourdes’ motion to dismiss?
Held: Yes. Lourdes filed her Motion to Dismiss on 25
April 1995. It was denied by the trial court on 7 May
1996. At that time, the rule on expropriation was
governed by Section 3, Rule 67 of the Revised Rules of
Court which provides:
"SEC. 3. Defenses and objections. – Within the
time specified in the summons, each defendant, in lieu
of an answer, shall present in a single motion to dismiss
or for other appropriate relief, all his objections and
defenses to the right of the plaintiff to take his property
for the use or purpose specified in the complaint. All
such objections and defenses not so presented are
waived. A copy of the motion shall be served on the
plaintiff’s attorney of record and filed with the court with
proof of service."
The motion to dismiss contemplated in the
above Rule clearly constitute the responsive pleading
which takes the place of an answer to the compliant for
expropriation. Such motion is the pleading that puts in
issue the right of the plaintiff to expropriate the
defendant’s property for the use specified in the
complaint. All that the law requires is that a copy of the
said motion be served on plaintiff’s attorney of record. It
is the court that at its convenience will set the case for
trial after the filing of the said pleading.
The CA therefore erred in holding that the
motion to dismiss filed by petitioner hypothetically
admitted the truth of the facts alleged in the complaint,
“specifically that there is a genuine necessity to
expropriate petitioner’s property for public use.”
Pursuant to the above Rule, the motion is a responsive
pleading joining the issues. What the trial court should
have done was to set the case for the reception of
evidence to determine whether there is indeed a
genuine necessity for the taking of the property, instead
of summarily making a finding that the taking is for
public use and appointing commissioners to fix just
compensation. This is especially so considering that the
purpose of the expropriation was squarely challenged
and put in issue by petitioner in her motion to dismiss.
Significantly, the above Rule allowing a
defendant in an expropriation case to file a motion to
dismiss in lieu of an answer was amended by the 1997
Rules of Civil Procedure, which took effect on July 1,
1997. Section 3, Rule 67 now expressly mandates that
any objection or defense to the taking of the property of
a defendant must be set forth in an answer.
Writ of possession
Republic Of The Philippines V. Tagle (1998)
Facts: Benitez is the registered owner of two (2) parcels
of land (the “subject land”) in Cavite. On 30 March
1983, Benitez signed a Memorandum of Agreement with
the Philippine Human Resources Development Center
(“PHRDC”) which provides, among others, that Benitez
undertakes to lease within the period of twenty (20)
years and/or sell a portion of that property in favor of
PHRDC. Accordingly, a lease contract was executed.
After the expiration of the lease contract, negotiations
began on the purchase of the subject land. However, for
reasons known only to her, Benitez did not sign the
Deed of Absolute Sale thus reneging on her commitment
to sell the lot in question. Thereafter, Benitez demanded
PHRDC the payment of rentals and to vacate the
premises. Subsequently, Benitez filed an unlawful
Page 231
Civil Procedure
ESGUERRA NOTES
detainer case against PHRDC. Meanwhile, due to its
failure to acquire the subject land through negotiated
sale, PHRDC, through the Department of Trade and
Industry (the “petitioner”), instituted a complaint for
Eminent Domain. Subsequently, the petitioner filed a
Motion for Issuance of a Writ of Possession, which was
granted. Aggrieved, Benitez filed a Motion for
Reconsideration (“MR”). Said MR was granted, thus the
Writ of Possession previously issued was quashed. The
judge quashed the Writ of Possession on the ground that
the petitioner is already occupying the property sought
to be expropriated.
Issue: May a judge quash a writ of possession on the
ground that the expropriating agency is already
occupying the property sought to be expropriated?
Held: No. It is undisputed that the expropriation
proceeding in the case at bar involves a development
project covered by EO 1035. Section 7 of EO 1035
provides:
SEC 7. Expropriation. If the parties fail to
agree in negotiation of the sale of the land as provided
in the preceding section, the government implementing
agency/instrumentality concerned shall have authority
to immediately institute expropriation proceedings
through the Office of the Solicitor General, as the case
may be. The just compensation to be paid for the
property acquired through expropriation shall be in
accordance with the provisions of P.D. No. 1533. Courts
shall give priority to the adjudication of cases on
expropriation and shall immediately issue the necessary
writ of possession upon deposit by the government
implementing agency/instrumentality concerned of an
amount equivalent to ten per cent (10%) of the amount
of just compensation provided under P.D. No. 1533;
Provided, That the period within which said writ of
possession shall be issued shall in no case extend
beyond five (5) days from the date such deposit was
made.
Under this statutory provision, when the
government or its authorized agent makes the required
deposit, the trial court has a ministerial duty to issue a
writ of possession.
The expropriation of real property does not
include mere physical entry or occupation of land.
Although eminent domain usually involves a taking of
title, there may also be compensable taking of only
some, not all, of the property interests in the bundle of
rights that constitute ownership.
In the instant case, it is manifest that the
petitioner, in pursuit of an objective beneficial to public
interest, seeks to realize the same through its power of
eminent domain. In exercising this power, petitioner
intended to acquire not only physical possession but also
the legal right to possess and ultimately to own the
subject property. Hence, its mere physical entry and
occupation of the property fall short of the taking of
title, which includes all the rights that may be exercised
by an owner over the subject property. Its actual
occupation, which renders academic the need for it to
enter, does not by itself include its acquisition of all the
rights of ownership. Its right to possess did not attend
its initial physical possession of the property because the
lease, which had authorized said possession, lapsed. In
short, petitioner wanted not merely possession de facto
but possession de jure as well.
It would be circuitous, if not legally absurd, for
this Court to require petitioner to first vacate the
property in view of the adverse judgment in the unlawful
detainer case, and soon afterwards, order the trial court
to issue in petitioners favor a writ of possession
pursuant to the expropriation proceedings. Such a
scenario is a bureaucratic waste of precious time and
resources. This precisely is the sort of pernicious and
unreasonable delay of government infrastructure or
development projects, which EO 1035 intended to
address by requiring the immediate issuance of a writ of
possession. Ineludibly, said writ is both necessary and
practical, because mere physical possession that is
gained by entering the property is not equivalent to
expropriating it with the aim of acquiring ownership
over, or even the right to possess, the expropriated
property.
Conflicting claims on the property
Philippine Veterans Bank v. Bases Conversion
Development Authority, et al. (2011)
Facts: In late 2003, Bases Conversion Development
Authority (“BCDA”) filed several expropriation actions
before the various branches of the RTC of Angeles City
for the acquisition of lands needed for the construction
of the Subic-Clark-Tarlac Expressway Project. Upon
learning of the expropriation cases, Philippine Veterans
Bank (the “petitioner”) filed motions to intervene in all
the cases with attached complaints-in-intervention.
Petitioner alleged that the properties subject of
expropriation actually belonged to Belmonte Agro-
Industrial Development Corp., which mortgage the lands
to petitioner in 1976. Petitioner had since foreclosed on
the mortgages and bought the same at public auction in
1982. Unfortunately, petitioner had been unable to
consolidate ownership in its name.
In its Order dated 18 August 2004, however,
the RTC denied petitioner’s motion for intervention on
the ground that the intervention amounts to a third-
party complaint that is not allowed in expropriation
cases and that the intervention would delay the
proceedings in the cases before it. Aggrieved, petitioner
elevated the case before the CA, which affirmed the
RTC’s Order denying petitioner’s motion for intervention.
Meanwhile, the RTC issued separate decisions granting
the expropriation of the subject properties.
Issue: Did the CA erred in ruling that petitioner is not
allowed to intervene in the expropriation cases?
Held: Although under Section 9, Rule 67 of the 1997
Rules of Civil Procedure authorizes the court
adjudicating the expropriation case to hear and decide
conflicting claims regarding the ownership of the
properties involved, such rule obviously cannot apply to
petitioner because at the time petitioner tried to
intervene in the expropriation cases, its conflict with the
farmer beneficiaries who held CLOAs, EPs, or TCTs
emanating from such titles were already pending before
Angeles City RTC Branch 62, a co-equal branch of the
same court. As such, Branch 58 had no authority to pre-
empt Branch 62 of its power to hear and adjudicate
claims that were already pending before it.
While petitioner withdrew the actions it filed with Branch
62 after the CA dismissed its petition, the same cannot
still authorize Branch 58 to decide the conflicting claims
because jurisdiction over the annulment of the individual
Page 232
Civil Procedure
ESGUERRA NOTES
defendants CLOAs and EPs (which titles if annulled
would leave PVBs titles to the lands unchallenged) lies
with the DARAB. Accordingly, Branch 58 would still have
no power to adjudicate the issues of ownership
presented by the PVBs intervention.
Rule 68
Foreclosure of Real Estate Mortgage
1997 Rules on Civil Procedure, Rule 68
Section 1. Complaint in action for foreclosure. — In
an action for the foreclosure of a mortgage or other
encumbrance upon real estate, the complaint shall set
forth the date and due execution of the mortgage; its
assignments, if any; the names and residences of the
mortgagor and the mortgagee; a description of the
mortgaged property; a statement of the date of the
note or other documentary evidence of the obligation
secured by the mortgage, the amount claimed to be
unpaid thereon; and the names and residences of all
persons having or claiming an interest in the property
subordinate in right to that of the holder of the
mortgage, all of whom shall be made defendants in the
action.
Section 2. Judgment on foreclosure for payment or
sale. If upon the trial in such action the court shall find
the facts set forth in the complaint to be true, it shall
ascertain the amount due to the plaintiff upon the
mortgage debt or obligation, including interest and
other charges as approved by the court, and costs, and
shall render judgment for the sum so found due and
order that the same be paid to the court or to the
judgment obligee within a period of not less than
ninety (90) days nor more than one hundred twenty
(120) days from the entry of judgment, and that in
default of such payment the property shall be sold at
public auction to satisfy the judgment.
Section 3. Sale of mortgaged property; effect.
When the defendant, after being directed to do so as
provided in the next preceding section, fails to pay the
amount of the judgment within the period specified
therein, the court, upon motion, shall order the
property to be sold in the manner and under the
provisions of Rule 39 and other regulations governing
sales of real estate under execution. Such sale shall not
affect the rights of persons holding prior encumbrances
upon the property or a part thereof, and when
confirmed by an order of the court, also upon motion, it
shall operate to divest the rights in the property of all
the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may
be allowed by law.
Upon the finality of the order of confirmation or upon
the expiration of the period of redemption when
allowed by law, the purchaser at the auction sale or
last redemptioner, if any, shall be entitled to the
possession of the property unless a third party is
actually holding the same adversely to the judgment
obligor. The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from the
court which ordered the foreclosure.
Section 4. Disposition of proceeds of sale. The
amount realized from the foreclosure sale of the
mortgaged property shall, after deducting the costs of
the sale, be paid to the person foreclosing the
mortgage, and when there shall be any balance or
residue, after paying off the mortgage debt due, the
same shall be paid to junior encumbrancers in the
order of their priority, to be ascertained by the court,
or if there be no such encumbrancers or there be a
balance or residue after payment to them, then to the
mortgagor or his duly authorized agent, or to the
person entitled to it.
Section 5. How sale to proceed in case the debt is
not all due. If the debt for which the mortgage or
encumbrance was held is not all due as provided in the
judgment, as soon as a sufficient portion of the
property has been sold to pay the total amount and the
costs due, the sale shall terminate; and afterwards, as
often as more becomes due for principal or interest and
other valid charges, the court may, on motion, order
more to be sold. But if the property cannot be sold in
portions without prejudice to the parties, the whole
shall be ordered to be sold in the first instance, and the
entire debt and costs shall be paid, if the proceeds of
the sale be sufficient therefor, there being a rebate of
interest where such rebate is proper.
Section 6. Deficiency judgment. If upon the sale of
any real property as provided in the next preceding
section there be a balance due to the plaintiff after
applying the proceeds of the sale, the court, upon
motion, shall render judgment against the defendant
for any such balance for which, by the record of the
case, he may be personally liable to the plaintiff, upon
which execution may issue immediately if the balance
is all due at the time of the rendition of the judgment;
otherwise, the plaintiff shall be entitled to execution at
such time as the balance remaining becomes due under
the terms of the original contract, which time shall be
stated in the judgment.
Section 7. Registration. A certified copy of the final
order of the court confirming the sale shall be
registered in the registry of deeds. If no right of
redemption exists, the certificate of title in the name of
the mortgagor shall be cancelled, and a new one issued
in the name of the purchaser.
Where a right of redemption exists, the certificate of
title in the name of the mortgagor shall not be
cancelled, but the certificate of sale and the order
confirming the sale shall be registered and a brief
memorandum thereof made by the registrar of deeds
upon the certificate of title. In the event the property is
redeemed, the deed of redemption shall be registered
with the registry of deeds, and a brief memorandum
thereof shall be made by the registrar of deeds on said
certificate of title.
If the property is not redeemed, the final deed of
sale executed by the sheriff in favor of the purchaser at
the foreclosure sale shall be registered with the registry
of deeds; whereupon the certificate of title in the name
of the mortgagor shall be cancelled and a new one
issued in the name of the purchaser.
Page 233
Civil Procedure
ESGUERRA NOTES
Section 8. Applicability of other provisions. The
provisions of sections 31, 32 and 34 of Rule 39 shall be
applicable to the judicial foreclosure of real estate
mortgages under this Rule insofar as the former are
not inconsistent with or may serve to supplement the
provisions of the latter.
Indispensable and necessary parties in a (i.e., those covered TCTs Nos. 92836 and 92837).
foreclosure complaint
- mortgagor and mortgagee (plaintiff)
Modes of foreclosure of REM
Judicial – Rule 68
Extrajudicial – Act 3135, as amended by Act 4118
Modes of foreclosure of chattel mortgage
Judicial – Rule 68; Replevin under Rule 60may be
availed of to secure possession of property as
preliminary to its sale
Extrajudicial – Sec. 14, Act 1508
Equity of redemption
Equity of redemption, means "the right of the
mortgagor to redeem the mortgaged property after his
default in the performance of the conditions of the
mortgage but before the sale of the property or the
judicial) confirmation of the (Sheriffs) sale.
The equity of redemption is, to be sure,
different from and should not be confused with the right
of redemption. The right of redemption in relation to a
mortgage-understood in the sense of a prerogative to
re-acquire mortgaged property after registration of the
foreclosure sale exists only in the case of the
extrajudicial foreclosure of the mortgage. No such right
is recognized in a judicial foreclosure except
only where the mortgagee is the Philippine National
Bank or a bank or banking institution.
Where a mortgage is foreclosed extrajudicially,
Act 3135 grants to the mortgagor the right of
redemption within one (1) year from the registration of
the sheriffs certificate of foreclosure sale.
Limpin vs. IAC (1988)
Facts: The proceedings concern two (2) lots, then
covered by TCTs Nos. 92836 and 92837, which, together
with two (2) others, were originally mortgaged in 1973
to herein private respondent Ponce by their former
owners, the Spouses Jose and Marcelina Aquino. These
two lots were afterwards sold in 1978 by the same
Aquino Spouses to Butuan Bay Wood Export
Corporation. Against this corporation herein petitioner
Limpin obtained a money judgment in 1979; and to
satisfy the judgment, the two lots were levied on and
sold at public auction in 1980, Limpin being the highest
bidder. Limpin later sold the lots to his co-petitioner,
Sarmiento.
Earlier however or a day before levy was made
on the two lots in execution of the judgment against
Butuan Bay Wood Export Corporation. Ponce had
initiated judicial proceedings for the foreclosure of the
mortgage over said two (2) lots (together with the two
(2) others mortgaged to him Judgment was rendered in
his favor and became final; and at the ensuing
foreclosure sale, the lots were acquired by Ponce himself
as highest bidder. Ponce then moved for confirmation of
the foreclosure sale, but the Court confirmed the sale of
only two lots, refusing to do so as regards the two which
had been subject of the execution sale in Limpin's favor
On March 11, 1988-nine months or so after
entry of the judgment recognizing his equity of
redemption as successor-in-interest of the original
mortgagors that Sarmiento finally be stirred himself to
attempt to exercise his unforeclosed equity of
redemption. On that day he filed a motion with the
Court presided over by Hon. Judge Antonio Solano,
manifesting that he would exercise the right and asked
the Court to fix the redemption price. The Court opined
that "this should be the subject of the agreement
between Ponce and Sarmiento.
Sarmiento then wrote to Ponce on March 23,
1988 offering "P 2.6 million as redemption price for the
two lots originally covered by TCTs Nos. 92836 and
92837, now 307100 and 307124. Ponce's answer,
dated March 25, 1988, rejected the offer said averred
"that the period within which ... (Sarmiento) could have
exercised such right ... (had) lapsed. Sarmiento reacted
by filing a motion with the Solano Court, dated March
29, 1988, asking it to "fix the redemption price ... and
that the implementation of the writ of possession be
provisionally deferred. An opposition was promptly filed
by Ponce under date of May 4, 1988 in which he argued
that "Sarmiento's right to exercise his equity of
redemption over those lots had long expired," the
opportunity to exercise it having presented itself but not
availed of "(i) after ... default in the performance of the
conditions of the mortgage and (ii) before the Sheriffs
sale of the property and the judicial confirmation
thereof." According to Ponce, "from October 17, 1982,
... (when) Sarmiento's predecessors-in-interest
defaulted in their obligations over the mortgaged
properties, up to June 17, 1987, when this ... (Trial)
Court confirmed the auction sale of those properties,
Sarmiento could (and should) have exercised his 'equity
of redemption.'" Judge Solano did not share this view,
and ruled accordingly
Held: The equity of redemption is, to be sure, different
from and should not be confused with the right of
redemption.
The right of redemption in relation to a mortgage-
understood in the sense of a prerogative to re-acquire
mortgaged property after registration of the foreclosure
sale- exists only in the case of
the extrajudicialforeclosure of the mortgage. No such
right is recognized in a judicial foreclosure except only
where the mortgagee is the Philippine National Bank or a
bank or banking institution.
Where a mortgage is foreclosed extra-judicially, Act
3135 grants to the mortgagor the right of redemption
within one (1) year from the registration of the sheriffs
certificate of foreclosure sale.
Where the foreclosure is judicially effected, however, no
equivalent right of redemption exists. The law declares
that a judicial foreclosure sale, "when confirmed by an
order of the court, shall operate to divest the rights of
Page 234
Civil Procedure
ESGUERRA NOTES
all the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may
be allowed by law. Such rights exceptionally "allowed by
law" (i.e., even after confirmation by an order of the
court) are those granted by the charter of the Philippine
National Bank (Acts No. 2747 and 2938), and the
General Banking Act (R.A. 337). These laws confer on
the mortgagor, his successors in interest or any
judgment creditor of the mortgagor, the right to redeem
the property sold on foreclosure-after confirmation by
the court of the foreclosure sale-which right may be
exercised within a period of one (1) year, counted from
the date of registration of the certificate of sale in the
Registry of Property.
But, to repeat, no such right of redemption exists in
case of judicial foreclosure of a mortgage if the
mortgagee is not the PNB or a bank or banking
institution.
No right of redemption in judicial foreclosure of
REM except when allowed by law
In Judicial Foreclosure:
General Rule: No right of redemption only equity
redemption.
Exception: Those granted by banks or banking
institutions as provided by the General Banking Act.
Hence, if a mortgagee is a bank, the mortgagor may
exercise a right of redemption and this rule applies even
if the foreclosure is judicial in accordance with Rule 68 of
the Rules of Court.
In Extrajudicial Foreclosure:
General Rule: Mortgagor has the right to redeem the
property.
Period: Within one (1) year from the registration of the
deed of sale.
Except: Sec. 47 of the General Banking Act provides
that in case of extrajudicial foreclosure, notwithstanding
ACT 3135, juridical persons shall have the right to
redeem the property until, but not after, the registration
of the certificate of foreclosure sale with the applicable
Register of Deeds which in no case shall be more than
three (3) months after foreclosure, whichever is higher.
Right of redemption in extrajudicial foreclosure
Rosales v. Yboa (1983)
Facts: By virtue of the foreclosure of real estate
mortgage duly executed by the mortgagor Pedro Oliverio
in favor of the Development Bank of the Philippines, as
security for the payment of the amount of P12,000.00,
Deputy Sheriff of Samar Peregrin Yboa, sold at public
auction to Rosales, the highest bidder, for the total
amount of fourteen thousand five hundred pesos
(P14,500.00). The corresponding Sheriff's certificate of
sale was issued in favor of plaintiff-appellant, which
certificate was registered in the Office of the Register of
Deeds for the Province of Samar on February 3, 1970.
On January 23, 1971, after the mortgagor
Pedro Oliverio had served notice in writing of the
redemption and had paid on said date to defendant-
appellee Deputy Sheriff the principal amount of
P14,500.00 plus P1,691.00 representing the one (1 %)
per centum interest per month, the latter executed a
Deed of Certificate of Redemption restoring, conveying
and assigning unto the said mortgagor, his heirs and
assigns all the estate, right, title and interest on said
foreclosed property.
Rosales filed the instant complaint for
cancellation of certificate of redemption alleging that no
valid redemption was effected because the mortgagor
failed to tender payment of 1) the full interest on the
purchase price, while should be P1,715.84, instead of
Pl,691.00 actually paid by the mortgagor, thereby
leaving a deficiency in the sum of P24.84; 2) the sum of
P3.00 representing the registration fee of the certificate
of sale, plus interest thereon of P0.04; 3) the delinquent
real estate taxes of the subject property for the years
1960 to 1970 amounting to P745.47; and 4) the
Sheriff's commission in the sum of P99.82.
The RTC declared that the Certificate of
Redemption of the property sold at public auction is
valid and legal "without prejudice to the right of the
plaintiff-appellant to recover from the redemptioner the
deficiencies.
Issue: Whether or not a valid and legal redemption was
made by the mortgagor Pedro Oliverio of his titled
property.
Held: The requisites for a valid redemption are: 1) the
redemption must be made within twelve (12) months
from the time of the registration of the sale in the Office
of the Register of Deeds; 2) payment of the purchase
price of the property involved, plus 1% interest per
month thereon, if any, paid by the purchaser after the
sale with the same rate of interests; and 3) written
notice of the redemption must be served on the officer
who made the sale and a duplicate filed with the
Register of Deeds of the province.
There is no dispute, that in the case at bar, the
mortgagor Pedro Oliverio tendered payment of the
purchase price well within the redemption period of
twelve (12) months after the registration of the sale on
February 3,1970 and that defendants-appellees Deputy
Sheriff of Samar and the Register of Deeds of Samar
were duly notified in writing of the mortgagor's desire to
redeem the subject property. Equally beyond question is
the fact that mortgagor Pedro Oliverio tendered the sum
of P14,500.00 corresponding to the purchase of the
property, and the amount of P1,691.00 representing the
1% monthly interest thereon, although the trial court
found a deficiency of P0.67 due and owing to the
plaintiff-appellant. The mortgagor, therefor, has
substantially complied with the requirements of the law
to effect redemption, for which reason a Certificate of
Redemption was issued in his favor by defendant-
appellee Deputy Sheriff.
The failure of the mortgagor Pedro Oliverio to
tender the amount of P745.47 representing the
delinquent real estate taxes of the subject property, the
Page 235
Civil Procedure
ESGUERRA NOTES
registration fee of P3.00 and the interest thereon of
P0.04, the Sheriff's Commission in the sum of P99.82,
and the deficiency interest on the purchase price of the
subject property, will not render the redemption in
question null and void, it having been established that
he has substantially complied with the requirements of
the law to effect a valid redemption, with his tender of
payment of the purchase price and the interest thereon
within twelve (12) months from the date of the
registration of the sale.
Filing of court action to enforce redemption has
effect of preserving redemptioner’s rights and
“freezing” expiration of one year period.
Banco Filipino Savings and Mortgage Bank v. CA
(2005)
Facts: Santiago (Isabela) Memorial Park, Inc. filed a
complaint for redemption and specific performance
against Banco Filipino Savings & Mortgage Bank,
alleging, among others, that SMP Inc. made manifest its
interest to exercise its right of redemption through
numerous communications and negotiation with the
defendant. Also, SMP Inc. alleges that the delay of
Banco Filipino in the finalization of the terms of
redemption did not in any manner alter the right of
plaintiff to redeem the property.
Banco Filipino filed a motion to dismiss on the
ground that the complaint does not state a cause of
action. It alleges that assuming that the allegations in
the complaint are true and correct, still there was no
redemption effected within one year from the date of
registration of the sheriff’s certificate of sale with the
Register of Deeds on January 21, 1991, thus private
respondent had lost its right to redeem the subject land.
Petitioner claimed that the letter cited was a mere offer
to redeem the property which was promptly answered
by a letter dated August 28, 1991, which categorically
denied private respondent’s offer and stated that when it
comes to redemption, the basis of payment is the total
claim of the bank at the time the property was
foreclosed plus 12% thereof and all litigation expenses
attached thereto or its present appraised value
whichever is higher; that the letter mentioned was about
negotiation and special arrangement and not redemption
for at that stage the period of redemption had already
expired;
The RCT ruled in favor of Banco Filipino. The
CA however reversed and set aside the order of the RTC,
declaring SMP Inc. entitled to repurchase the property in
question within THIRTY (30) days from CA’s notice.
Issue: Whether SMP Inc.’s offer and negotiation with
Banco Filipino for the redemption is sufficient to stall the
running of the redemption period.
Held: Clearly, the right of redemption should be
exercised within the specified time limit. The
redemptioner should make an actual tender in good
faith of the full amount of the purchase price. In case of
disagreement over the redemption price, the
redemptioner may preserve his right of redemption
through judicial action which in every case must be filed
within the one-year period of redemption. The filing of
the court action to enforce redemption, being equivalent
to a formal offer to redeem, would have the effect of
preserving his redemptive rights and "freezing" the
expiration of the one-year period. In this case, the
period of redemption expired on January 21, 1992. The
complaint was filed on December 20, 1992.
Moreover, while the complaint alleges that
private respondent made an offer to redeem the subject
property on August 6, 1991, which was within the period
of redemption, it is not alleged in the complaint that
there was an actual tender of payment of the
redemption price as required by the rules. It was alleged
that private respondent merely made an offer
of P700,000.00 as redemption price, which however, the
redemption money was the total bank claim
of P925,448.17 plus lawful interest and other allowable
expenses incident to the foreclosure proceedings. Thus,
the offer was even very much lower than the price paid
by petitioner as the highest bidder in the auction sale.
In BPI Family Savings Bank, Inc. vs. Veloso,
we held: The general rule in redemption is that it is not
sufficient that a person offering to redeem manifests his
desire to do so. The statement of intention must be
accompanied by an actual and simultaneous tender of
payment. This constitutes the exercise of the right to
repurchase.
Prescriptive period to file action for deficiency in
extrajudicial foreclosure of real estate mortgage
* Ten (10) years (Arts. 1144 and 1142, Civil Code)
Article 1142. A mortgage action prescribes after ten
years. (1964a)
Article 1144. The following actions must be brought
within ten years from the time the right of action
accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3) Upon a judgment.
Writ of possession is a non-litigious proceeding -
no need for notice to adverse party
De Vera v. Agloro (2005)
Facts: The Spouses Salvador F. De Vera and Feliza V.
De Vera secured a loan from the BPI Family Savings
Bank, Inc. (“BPI”). To secure the payment thereof, the
Spouses executed a Real Estate Mortgage over their
property. When the Spouses failed to pay their loan, the
property was extrajudicially foreclosed, with BPI being
the highest bidder in the public auction.
The Bank filed an Ex Parte Petition for Writ of
Possession with the RTC impleading the Spouses as
respondents The trial court ruled that the purchaser of
the foreclosed property, upon ex parte application and
the posting of the required bond, has the right to
acquire possession of the foreclosed property during the
12-month redemption period. According to the trial
court, this is sanctioned under Section 7 of Act No.
3135, as amended by Act No. 4118. The trial court also
Page 236
Civil Procedure
ESGUERRA NOTES
declared that considering that the redemption period
had already expired, the Bank as purchaser, can, and
with more reason, demand for a writ of possession. The
trial court emphasized that it is its ministerial duty to
issue the writ of possession in favor of a purchaser at
public auction.
The Spouses filed a motion for reconsideration
which was however denied. Aggrieved, the Spouses De
Vera filed a petition for certiorari and mandamus with
temporary restraining order and writ of preliminary
injunction before the CA, which was again denied.
Hence, this petition.
Issue: Whether or not there was denial of due process
when the RTC took cognizance of the ex parte petition
for a writ of possession without prior service of copies of
the petition and of the notice of hearing thereof on the
Spouses.
Held: The bare fact that the petitioners were impleaded
in the ex parte petition for a writ of possession filed by
the respondent did not alter the summary nature of the
proceedings in Act No. 3135. Indeed, there was no need
for the respondent to implead the petitioners as parties-
respondents in its petition with the RTC. Hence, the
petitioners cannot claim that they were denied due
process when the RTC took cognizance of the
respondent’s petition without prior service of copies of
the petition and of the notice of hearing thereof on
them.
An ex parte petition for the issuance of a
possessory writ under Section 7 of Act No. 3135 is not,
strictly speaking, a "judicial process" as contemplated in
Article 433 of the Civil Code.34 It is a judicial proceeding
for the enforcement of one’s right of possession as
purchaser in a foreclosure sale. It is not an ordinary suit
filed in court, by which one party "sues another for the
enforcement of a wrong or protection of a right, or the
prevention or redress of a wrong." It is a non-litigious
proceeding authorized in an extrajudicial foreclosure of
mortgage pursuant to Act No. 3135, as amended. It is
brought for the benefit of one party only, and without
notice to, or consent by any person adversely
interested. It is a proceeding where the relief is granted
without an opportunity for the person against whom the
relief is sought to be heard. No notice is needed to be
served upon persons interested in the subject property.
Hence, there is no necessity of giving notice to the
petitioners since they had already lost all their interests
in the property when they failed to redeem the same.
Writ of possession is like a writ of execution
PNB v. SANAO MARKETING CORPORATION (2005)
Facts: Sanao Marketing Corporation, the spouses
Amado A. Sanao and Soledad F. Sanao and the spouses
William (Willy) F. Sanao and Helen Sanao, as joint and
solidary debtors, obtained a loan from PNB secured by a
real estate mortgage of several parcels of land. For
failure of respondents to fully pay the loan upon its
maturity, PNB caused the extrajudicial foreclosure of the
mortgage. A Provisional Certificate of Sale was issued in
favor of PNB.
Respondents filed a complaint to declare
the Provisional Certificate of Sale and the auction and
foreclosure proceedings null and void. PNB filed a Motion
for execution pending appeal. The RTC granted PNB’s
petition for issuance of a writ of possession over seven
(7) parcels of land and directed the execution pending
appeal of such writ of possession. The CA however
annulled the ruling of the RTC. Hence, this Petition for
Review
Issue: Whether or not PNB is entitled to the writ of
possession pending appeal
Held:
A writ of possession is "a writ of execution
employed to enforce a judgment to recover the
possession of land. It commands the sheriff to
enter the land and give possession of it to the
person entitled under the judgment."
A writ of possession may be issued under the
following instances: (1)in land registration proceedings
under Section 17 of Act 496; (2) in a judicial
foreclosure, provided the debtor is in possession of the
mortgaged realty and no third person, not a party to the
foreclosure suit, had intervened; (3) in an extrajudicial
foreclosure of a real estate mortgage under Section 7 of
Act No. 3135, as amended by Act No. 4118; and (4) in
execution sales (last paragraph of Section 33, Rule 39 of
the Rules of Court).
The present case falls under the third instance.
Under Section 7 of Act No. 3135, as amended by Act No.
4118, a writ of possession may be issued either (1)
within the one-year redemption period, upon the filing of
a bond, or (2) after the lapse of the redemption period,
without need of a bond. The purchaser in a foreclosure
sale may apply for a writ of possession during the
redemption period by filing an ex parte motion under
oath for that purpose in the corresponding registration
or cadastral proceeding in the case of property covered
by a Torrens title. Upon the filing of such motion and the
approval of the corresponding bond, the law also in
express terms directs the court to issue the order for a
writ of possession.
A writ of possession may also be issued after
consolidation of ownership of the property in the name
of the purchaser. It is settled that the buyer in a
foreclosure sale becomes the absolute owner of the
property purchased if it is not redeemed during the
period of one year after the registration of sale. As such,
he is entitled to the possession of the property and can
demand it any time following the consolidation of
ownership in his name and the issuance of a new
transfer certificate of title. In such a case, the bond
required in Section 7 of Act No. 3135 is no longer
necessary. Possession of the land then becomes an
absolute right of the purchaser as confirmed owner.
Upon proper application and proof of title, the issuance
of the writ of possession becomes a ministerial duty of
the court.
Page 237
Civil Procedure
ESGUERRA NOTES
An action to invalidate the mortgage or the
foreclosure sale is not a valid ground to oppose
issuance of writ of possession.
Arquiza vs. CA (2005)
Facts: The petitioners, spouses Godofredo V. Arquiza
and Remedios D. Arquiza, obtained a loan from private
respondent Equitable PCIBank. To secure the payment
thereof, the petitioners executed a Real Estate Mortgage
over their parcel of land. When the spouses defaulted in
the payment of their loan, the private respondent filed a
petition for extrajudicial foreclosure of the real estate
mortgage. A public auction was held and a Certificate of
Sale over the property was issued in favor of the private
respondent. This was registered with the Registry of
Deeds of Quezon City.
Following the expiry date of the redemption period
without the petitioners having exercised their right to
redeem the property, the private respondent
consolidated its ownership over the subject property. As
a consequence, the Registry of Deeds issued TCT No. N-
221650 in the name of the private respondent, canceling
the petitioners former title.
The petitioners filed a complaint against the
private respondent and the sheriffs with the RTC of
Quezon City for the declaration of the nullity of the
promissory note, real estate mortgage and the
foreclosure sale and damages with a plea for injunctive
relief for the suspension redemption period.
Thereafter, Equitable PCIBank filed an Ex
Parte Petition for Issuance of a Writ of Possession. The
RTC issued a writ of possession in favor of Equitable
PCIBank. The CA rendered judgment affirming the
appealed decision. The CA held that the rule requiring
the highest bidder to be placed in possession of the
property is founded on the right of ownership, which
becomes absolute after title thereto has been issued in
favor of the new owner, and that the court must aid in
effecting its delivery.
Hence, this petition for review on certiorari ,
contending, among others, that the writ of possession
should not have been issued considering the pendency
of a complaint for the annulment of the foreclosure sale
Issue: Whether or not the writ of possession may be
opposed on the ground of a pendency of a proceeding
for the annulment of the foreclosure sale.
Held: The petition is denied for lack of merit. As a rule,
any question regarding the validity of the mortgage or
its foreclosure cannot be a legal ground for refusing the
issuance of a writ of possession. Regardless of whether
or not there is a pending suit for annulment of the
mortgage or the foreclosure itself, the purchaser is
entitled to a writ of possession, without prejudice of
course to the eventual outcome of said case.
Rule 69
Partition
Partition defined
Villamor v. CA (1988)
Facts: Special Proceedings, which relates to the
intestate estates of Eugenia, Casimira Florencio, Braulia,
Margarita and Barbara, all surnamed Cortes was filed.
This proceeding evidently did not include a brother,
Rufino Cortes. A scramble over the control and
possession of the properties ensued between the heirs of
Barbara Cortes, and the Rufino Cortes line. A project of
partition was entered into by all the heirs of decedent.
Issue:
1. May the heirs of Rufino participate in
the partition?
2. Definition of partition
Held: The lower courts erred in relying on the alleged
absence of evidence showing that Rufino Cortes had at
any time been declared an owner of the lands in
question for taxation purpose poses. The records show
that before the project of partition was executed the
contending parties in Special Proceedings had been
fighting for eight years because the properties listed in
the inventories submitted by the administrators were
Identical. To settle their differences amicably, the
parties who all claim to be the heirs of decedents, all
children of Victor Cortes and Maria Castañeda, decided
to partition the properties.
Partition is defined as a division between two
or more persons of real or personal property which they
own as co-partners, joint tenants or tenants in common,
effected by the setting apart of such interests so that
they may enjoy and possess it in severalty. The
purpose of partition is to put an end to the common
tenancy of the land or co-ownership. It seeks a
severance of the individual interest of each joint owner
vesting in each a sole estate in specific property and
giving to each one the right to enjoy his estate without
supervision or interference from the other. And a
partition by deed is a recognized method of effectuating
a separation of interest in property held in common.
It is clear therefore that a partition
presupposes that the thing to be divided is owned in
common. It is immaterial in whose name the properties
were declared for taxation purposes for it is presumed
beforehand that the parties to the partition admit the
fact of co-ownership and now want to effect a separation
of interest.
MTC may have jurisdiction in actions for partition
1. Real property - P20,000.00/P50,000.00
2. Personal property – P300,000.00/P400,000.00
Page 238
Civil Procedure
ESGUERRA NOTES
Final order decreeing partition and accounting
appealable
1997 Rules on Civil Procedure, Rule 69
Section 2. Order for partition and partition by
agreement thereunder. — If after the trial the court
finds that the plaintiff has the right thereto, it shall order
the partition of the real estate among all the parties in
interest. Thereupon the parties may, if they are able to
agree, make the partition among themselves by proper
instruments of conveyance, and the court shall confirm
the partition so agreed upon by all the parties, and such
partition, together with the order of the court confirming
the same, shall be recorded in the registry of deeds of
the place in which the property is situated.
A final order decreeing partition and accounting may
be appealed by any party aggrieved thereby.
* Appeal period – 30 days
Action for partition raises two issues
1. whether plaintiff is co-owner of property
2. assuming plaintiff is co-owner, how to divide the
property between plaintiff and defendant
or among the co-owners
Two stages in every action for partition
First Stage: Determination of the propriety of partition
This involves a determination of whether the subject
property is owned in common and whether all the co-
owners are made parties in the case.
The order may also require an accounting of rents and
profits recovered by the defendant. This order of
partition is appealable. [Miranda v. Court of Appeals
(1976)]
If not appealed, then the parties may partition the
common property in the way they want. If they cannot
agree, then the case goes into the second stage.
However, the order of accounting may in the meantime
be executed. [De Mesa v. CA (1994)]
Second Stage: Actual partitioning of the subject
property
This is also a complete proceeding and the order or
decision is appealable.
When there was a prior partition, the fact that the share
of each co-heir has not been technically described and
the title over the whole lot remains uncancelled does not
negate such partition.
There can be no partition again because there is no
more common property. [Noceda v. CA (1999)]
Who are indispensable parties
* All the co-owners (Rule 3, Sec. 7)
1997 Rules on Civil Procedure, Rule 69
Section 7. Compulsory joinder of indispensable
parties. — Parties in interest without whom no final
determination can be had of an action shall be joined
either as plaintiffs or defendants.
Who may file complaint; who should be made
defendants [Rule 69, Sec. 1]
Who May File: A person having the right to compel
partition of real estate, or of personal property, or both
real and personal property [Sec. 1, Sec. 13]
Venue: An action for partition should be filed in the RTC
of the province where the property or part thereof is
situated.
Parties:
(1) The plaintiff is the person who is supposed to be a
co-owner of the property
(2) Defendants are all the co-owners, who are
indispensable parties
(3) Creditors or assignees of co-owners may also
intervene and object to the partition
Who may effect partition
Alejandrino v. CA (1998)
Facts: Spouses Labunos left their six children named
Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia and
Abundio properties in Cebu. Mauricia allegedly
purchased Gregorio's share Ciriaco's share and
Abundio's share. It turned out, however, that a third
party named Licerio Nique, the private respondent in
this case, also purchased portions of the property from
Laurencia and from Gregorio, Marcelino and Abundio
through Laurencia.
However, Laurencia later questioned the sale in an
action for quieting of title and damages against private
respondent Nique in Civil Case No. CEB-7038 wherein
the trial court declared Nique owner of the properties.
Nique filed a motion for the segregation of the portion of
the property pursuant to said judgment.
Meanwhile, Mauricia filed a complaint for
redemption and recovery of properties with damages
against private respondent Nique that was docketed as
Civil Case No. CEB-11673.
Mauricia questioned this order of the lower court in
a petition for certiorari and prohibition with prayer for
the issuance of a writ of preliminary injunction filed
before the CA. The CA dismissed the petition stating that
the respondent court was merely performing its job of
seeing to it that execution of a final judgment must
conform to that decreed in the dispositive part of the
decision.
Issue: Whether or not as an heir of the Alejandrino
property, Laurencia may validly sell specific portions
thereof to a third party.
Held: Art. 1078 of the Civil Code provides that where
there are two or more heirs, the whole estate of the
decedent is, before partition, owned in common by such
heirs, subject to the payment of the debts of the
deceased. Under a co-ownership, the ownership of an
undivided thing or right belongs to different
persons. Each co-owner of property which is held pro
indiviso exercises his rights over the whole property and
Page 239
Civil Procedure
ESGUERRA NOTES

may use and enjoy the same with no other limitation
than that he shall not injure the interests of his co-
owners. The underlying rationale is that until a division
is made, the respective share of each cannot be
determined and every co-owner exercises, together with
his co-participants, joint ownership over the pro
indiviso property, in addition to his use and enjoyment
of the same.
Although the right of an heir over the property
of the decedent is inchoate as long as the estate has not
been fully settled and partitioned, the law allows a co-
owner to exercise rights of ownership over such inchoate
right. With respect to properties shared in common by
virtue of inheritance, alienation of a pro indiviso portion
thereof to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from
the time they were notified in writing of the sale by the
vendor.
In the instant case, Laurencia was within her
hereditary rights in selling her pro indiviso share.
However, because the property had not yet been
partitioned in accordance with the Rules of Court, no
particular portion of the property could be identified as
yet and delineated as the object of the sale. A co-owner
has the right to alienate his pro-indiviso share in the co-
owned property even without the consent of the other
co-owners. Nevertheless, as a mere part owner, he
cannot alienate the shares of the other co-owners.
Extrajudicial partition by heirs (Sec. 1, Rule 74)
1997 Rules on Civil Procedure, Rule 74
Section 1. Extrajudicial settlement by agreement
between heirs. — If the decedent left no will and no
debts and the heirs are all of age, or the minors are
represented by their judicial or legal representatives
duly authorized for the purpose, the parties may without
securing letters of administration, divide the estate
among themselves as they see fit by means of a public
instrument filed in the office of the register of deeds,
and should they disagree, they may do so in an ordinary
action of partition. If there is only one heir, he may
adjudicate to himself the entire estate by means of an
affidavit filled in the office of the register of deeds. The
parties to an extrajudicial settlement, whether by public
instrument or by stipulation in a pending action for
partition, or the sole heir who adjudicates the entire
estate to himself by means of an affidavit shall file,
simultaneously with and as a condition precedent to the
filing of the public instrument, or stipulation in the action
for partition, or of the affidavit in the office of the
register of deeds, a bond with the said register of deeds,
in an amount equivalent to the value of the personal
property involved as certified to under oath by the
parties concerned and conditioned upon the payment of
any just claim that may be filed under section 4 of this
rule. It shall be presumed that the decedent left no
debts if no creditor files a petition for letters of
administration within two (2) years after the death of
the decedent.

As there is no pending administration The fact of the extrajudicial settlement or

proceedings, the property of the Alejandrino spouses administration shall be published in a newspaper of
can only be partitioned by the heirs themselves in an general circulation in the manner provided in the nest
extrajudicial settlement of estate. However, evidence on succeeding section; but no extrajudicial settlement shall
the extrajudicial settlement of estate was offered before be binding upon any person who has not participated
the trial court and it became the basis for the order for therein or had no notice thereof.
segregation of the property sold to Nique. Mauricia does
not deny the fact of the execution of the deed of
extrajudicial settlement of the estate. She only Partition of personal property (Sec. 13, Rule 69)
questions its validity on account of the absence of
notarization of the document and the non-publication
1997 Rules on Civil Procedure, Rule 69
thereof.
Section 13. Section 13. Partition of personal
It appears that when a co-owner sells his
property. — The provisions of this Rule shall apply to
inchoate right in the co-ownership, he expresses his
partitions of estates composed of personal property, or
intention to "put an end to indivision among (his) co-
of both real and personal property, in so far as the same
heirs." Partition among co-owners may thus be
may be applicable.
evidenced by the overt act of a co-owner of renouncing
his right over the property regardless of the form it
takes. In effect, Laurencia expressed her intention to
terminate the co-owner by selling her share to private
respondent. Moreover, the execution of the deed of
extrajudicial settlement of the estate reflected the
intention of both Laurencia and petitioner Mauricia to
physically divide the property.

On the part of Laurencia, the court found that

she had transmitted her rights over portions she had
acquired from her brothers to private respondent Nique.
The sale was made after the execution of the deed of
extrajudicial settlement of the estate that private
respondent himself witnessed. The extrajudicial
settlement of estate having constituted a partition of the
property, Laurencia validly transferred ownership over
the specific front portion of the property with an area of
146 square meters.

Page 240
Civil Procedure
ESGUERRA NOTES
Rule 70
Forcible Entry and Unlawful Detainer
Distinguish the different
possession of real property
1. forcible entry and unlawful detainer
2. accion publiciana
Forcibly Entry
(Detentacion)
Possession of land by
defendant is unlawful from
the beginning as he
acquires possession by
force, intimidation,
strategy, threat, or stealth
No previous demand for
defendant to vacate the
premises is necessary
Plaintiff must prove that he
was in prior physical
possession of the premises
until he was deprived
thereof by defendant
The 1-year period is
generally counted from
date of actual entry on land
The issue centers on who
was in prior possession de
facto.
Accion
Interdictal
Summary action for
recovery of physical
possession where the
dispossession has not
lasted for more than 1
year
All cases of forcible entry
and unlawful detainer,
irrespective of the
amount of damages or
unpaid rentals sought to
be recovered should be
brought to the MTC.
However, if not brought
within 1 year, RTC has
jurisdiction
RTC has jurisdiction where cause of dispossession
not among grounds for FEUD, or possession lost
for more than one year
Natalia Realty, Inc., v. CA (2002)
actions to recover Facts: Natalia Realty Inc. filed an action (Civil Case No.
359-A) for recovery of possession of two parcels of land,
alleging that Antonio Martinez, Felipe Padua, Mario
Perfecto and Hermito Salodega were occupying and
illegally squatting on certain portions of the subject
property.
Unlawful Detainer RTC dismissed the case for petitioner’s failure
(Desahucio) to prosecute. The trial court issued another Order
Possession is inceptively granting the motions of respondents to order petitioner
lawful but it becomes illegal to surrender possession of portions of the subject
by reason of the property to private respondents.
termination of his right to
possession of the property Respondents filed with the trial court a motion
under his contract with the for the issuance of a writ of execution. They sought to
plaintiff enforce the orders of the trial court dated August 26,
Demand is jurisdictional if 1991 and April 20, 1992 that respectively referred to (1)
the ground is non-payment the dismissal of the complaint for failure to prosecute
of rentals or failure to and (2) the surrender of possession of portions of the
comply with lease contract subject property to respondents. Petitioner opposed the
Plaintiff need not have been motion arguing that the decision of the Supreme Court
in prior physical possession in Natalia Realty vs. Department of Agrarian Reform
dated August 12, 1993 is a supervening event that
prevents the execution of the judgment in Civil Case No.
359-A.
Period is counted from the
date of last letter of Issue Whether or not the ruling in Natalia Realty v. DAR
demand is applicable to the present case
The issue centers on
whether the defendant’s Held: The ruling in Natalia Realty vs. Department of
right to possess has expired Agrarian Reform does not qualify as a supervening
or not. event. A plain reading of the decision in that case will
readily reveal that it is not applicable to Civil Case No.
359-A. The sole issue in Natalia Realty vs. Department
of Agrarian Reform was whether the land registered
under the name of therein petitioner Natalia, covered by
Accion Accion TCT No. 31527, was within the coverage of the
Publiciana Reivindicato Comprehensive Agrarian Reform Law of 1988 (CARL for
ria brevity).
A plenary An action for
The present case stemmed from a complaint
action for recovery of
for recovery of possession or accion publiciana filed by
recovery of ownership,
Natalia, herein petitioner. Accion publiciana is a plenary
real right of which
action to recover possession. When the cause of
possession necessarily
dispossession is not among the grounds for forcible
when includes the
entry and unlawful detainer, or when possession has
dispossession recovery of
been lost for more than one year and can no longer be
has lasted for possession
maintained under Rule 70 of the Rules of Court, the
more than
complaint should be for accion publiciana. The objective
one year
of the parties in accion publiciana is to recover
RTC has jurisdiction if value of
possession only, not ownership.
the property exceeds P20,000
outside Metro Manila; exceeds
The rights asserted and reliefs prayed for
P50,000 within Metro Manila.
in Natalia Realty vs. Department of Agrarian Reform and
MTC has jurisdiction if value
in this case are very different. Natalia Realty vs.
of property does not exceed
Department of Agrarian Reform did not involve the
the above amounts
question of possession, not even the issue of
(RA 7691 expanded the
ownership. The decision in that case merely resolved the
jurisdiction of 1st level courts)
issue of whether the land covered by TCT No. 31527
should be placed under the coverage of CARL. The Court
in Natalia Realty vs. Department of Agrarian
Reform even underscored the fact that the question of
possession is a separate and distinct issue.
Page 241
Civil Procedure
ESGUERRA NOTES
3. accion reivindicatoria
Encarnacion v. Amigo (2006)
Facts: Victoriano M. Encarnacion is the registered owner
of lots which he acquired from his mother-in-law.
Respondent Nieves Amigo allegedly entered the
premises and took possession of a portion of the
property when the same was still owned by
Encarnacion’s father-in-law, Victoriano Magpantay,
without the latter’s permission of the then owner. Said
occupation by respondent continued even after titles
were issued to Encarnacion.
Encarnacion sent a letter demanding that the
respondent vacate the subject property but still refused
to vacate the subject property. Thereafter petitioner
filed a complaint for ejectment, damages with injunction
and prayer for restraining order with the MTC.
MTC judged in favor of Encarnacion. On
appeal, the RTC dismissed the case on the ground that
the MTC had no jurisdiction over the case, thus RTC
acquired no appellate jurisdiction thereof. The CA held
that the proper action in this case is accion publiciana
and not unlawful detainer as determined by the
allegations in the complaint filed by petitioner.
Issue: WON the RTC has jurisdiction.
Held: The action being an accion publiciana, RTC has
the jurisdiction.
In this jurisdiction, the three kinds of actions
for the recovery of possession of real property are:
1. Accion interdictal, or an ejectment
proceeding which may be either that for forcible entry
(detentacion) or unlawful detainer (desahucio), which is
a summary action for recovery of physical possession
where the dispossession has not lasted for more than
one year, and should be brought in the proper inferior
court;
2. Accion publiciana or the plenary action for
the recovery of the real right of possession, which
should be brought in the proper Regional Trial Court
when the dispossession has lasted for more than one
year; and
3. Accion reinvindicatoria or accion de
reivindicacion, which is an action for the recovery of
ownership which must be brought in the proper Regional
Trial Court.
Based on the foregoing distinctions, the
material element that determines the proper action to
be filed for the recovery of the possession of the
property in this case is the length of time of
dispossession. Under the Rules of Court, the remedies of
forcible entry and unlawful detainer are granted to a
person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building is
unlawfully withheld after the expiration or termination of
the right to hold possession by virtue of any contract,
express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other
person. These remedies afford the person deprived of
the possession to file at any time within one year after
such unlawful deprivation or withholding of possession,
an action in the proper Municipal Trial Court against the
person or persons unlawfully withholding or depriving of
possession, or any person or persons claiming under
them, for the restitution of such possession, together
with damages and costs. Thus, if the dispossession has
not lasted for more than one year, an ejectment
proceeding is proper and the inferior court acquires
jurisdiction. On the other hand, if the dispossession
lasted for more than one year, the proper action to be
filed is an accion publiciana which should be brought to
the proper RTC
From the allegations in the complaint, it
appears that the petitioner became the owner of the
property on April 11, 1995 by virtue of the waiver of
rights executed by his mother-in-law. He filed the
complaint for ejectment on March 2, 2001 after his
February 1, 2001 letter to the respondent demanding
that the latter vacate the premises remained unheeded.
While it is true that the demand letter was received by
the respondent on February 12, 2001, thereby making
the filing of the complaint for ejectment fall within the
requisite one year from last demand for complaints for
unlawful detainer, it is also equally true that petitioner
became the owner of the subject lot in 1995 and has
been since that time deprived possession of a portion
thereof. From the date of the petitioner's dispossession
in 1995 up to his filing of his complaint for ejectment in
2001, almost 6 years have elapsed. The length of time
that the petitioner was dispossessed of his property
made his cause of action beyond the ambit of an accion
interdictal and effectively made it one for accion
publiciana. After the lapse of the one-year period, the
suit must be commenced in the Regional Trial Court via
an accion publiciana which is a suit for recovery of the
right to possess. It is an ordinary civil proceeding to
determine the better right of possession of realty
independently of title. It also refers to an ejectment suit
filed after the expiration of one year from the accrual of
the cause of action or from the unlawful withholding of
possession of the realty.
The RTC does not have jurisdiction over all cases
of recovery of possession regardless of the value
of the property involved
Quinagoran v. CA (2007)
Facts: The heirs of Juan dela Cruz filed a Complaint for
Recovery of Portion of Registered Land with
Compensation and Damages against Victorino
Quinagoran, alleging that the latter started occupying a
house on the north-west portion of their property by
tolerance of respondents.
Quinagoran filed a Motion to Dismiss claiming
that the RTC has no jurisdiction over the case. He
argued that since the 346 sq m lot which he owns
adjacent to the contested property has an assessed
value of P1,730.00, the assessed value of the lot under
controversy would not be more than the said amount.
The RTC denied petitioner's MTD. The CA
affirmed the RTC ruling that where there is no allegation
that there was denial of possession through any of the
methods stated in Section 1, Rule 70 of the Rules of
Court, or where there is no lease contract between the
parties, the proper remedy is the plenary action of
recovery of possession or accion publiciana and thus is
within the proper jurisdiction of the RTC.
Page 242
Civil Procedure
ESGUERRA NOTES
Issue: Does the RTC have jurisdiction over all cases of
recovery of possession regardless of the value of the
property involved?
Held: No. The doctrine on which the RTC anchored its
denial of petitioner's Motion to Dismiss, as affirmed by
the CA -- that all cases of recovery of possession
or accion publiciana lies with the regional trial courts
regardless of the value of the property -- no longer
holds true. As things now stand, a distinction must be
made between those properties the assessed value of
which is below P20,000.00, if outside Metro Manila;
andP50,000.00, if within.
The Court has also declared that all cases
involving title to or possession of real property with an
assessed value of less than P20,000.00 if outside Metro
Manila, falls under the original jurisdiction of the
municipal trial court.
Atuel v. Valdez: Jurisdiction over an accion
publiciana is vested in a court of general jurisdiction.
Specifically, the regional trial court exercises exclusive
original jurisdiction "in all civil actions which involve x x
x possession of real property." However, if the
assessed value of the real property involved does
not exceed P50,000.00 in Metro Manila,
and P20,000.00 outside of Metro Manila, the
municipal trial court exercises jurisdiction over
actions to recover possession of real property.
Atuel v. Valdez (2003)
Facts: Atty. Manuel D. Cab appointed Federico Atuel as
administrator of his Property. Cab leased a portion of
his property to Bernabe Valdez. Cab allowed the
Spouses Federico and Sarah Atuel (Spouses Atuel) and
the Spouses George and Eliada Galdiano (Spouses
Galdiano) to occupy a portion of the Cab Property. The
Spouses Atuel and the Spouses Galdiano constructed
their respective houses thereon.
The Ministry of Human Settlements Regulatory
Commission (MARO) of Sibagat, Agusan del Sur
informed Cab that Valdez was properly identified as a
tenant, and thus deemed to be the owner of the land he
cultivated. The MARO issued an Emancipation Patent in
favor of Valdez for a portion of Cab’s Property, which
included the portion occupied by the houses of the
Spouses Atuel and the Spouses Galdiano.
Spouses Valdez filed a complaint for Recovery
of Possession with Damages with the DARAB in
Malaybalay, Bukidnon against the Spouses Atuel and the
Spouses Galdiano. In their complaint, the Spouses
Valdez alleged that the Spouses Atuel and the Spouses
Galdiano stealthily and through fraud entered and
occupied a portion of their.
Issue: Whether or not DARAB has jurisdiction for the
recovery possession of the lots from the Spouses.
Held: The DARAB has no jurisdiction to take cognizance
of the Spouses Valdezs complaint for recovery of
possession of the Subject Lot. Though the parties do
not challenge the jurisdiction of the DARAB, the Court
may motu proprio consider the issue of jurisdiction. The
Court has discretion to determine whether the DARAB
validly acquired jurisdiction over the case.
In their complaint for recovery of possession,
the Spouses Valdez alleged, among others, that they are
farmers and beneficiaries of an emancipation patent.
The Spouses Valdez also alleged that the Spouses Atuel
and the Spouses Galdiano stealthily and fraudulently
occupied the property. The Spouses Valdez claimed that
despite repeated demands, the Spouses Atuel and the
Spouses Galdiano refused to vacate and restore
possession of the Subject Lot to the Spouses
Valdez. The Spouses Valdez prayed that the Spouses
Atuel and the Spouses Galdiano be ordered to vacate
and restore possession of the Subject Lot to the Spouses
Valdez.
The Spouses Valdez did not allege the
existence of tenancy relations, if any, between
them and the Spouses Atuel and the Spouses
Galdiano.
In the instant case, the allegations in the
complaint, which are contained in the decision of the
MARO, indicate that the nature and subject matter of
the instant case is for recovery of possession or
accion publiciana. The issue to be resolved is who
between the Spouses Valdez on one hand, and the
Spouses Atuel and the Spouses Galdiano on the other,
have a better right to possession of the property. The
Spouses Atuel and the Spouses Galdiano likewise raise
the issue of ownership by insisting that Cab is the real
and lawful owner of the Subject Lot.
For the DARAB to acquire jurisdiction over the
case, there must exist a tenancy relations between the
parties. In order for a tenancy agreement to take hold
over a dispute, it is essential to establish all its
indispensable elements, to wit: 1) that the parties are
the landowner and the tenant or agricultural
lessee; 2) that the subject matter of the relationship is
an agricultural land; 3) that there is consent between
the parties to the relationship; 4) that the purpose of
the relationship is to bring about agricultural production;
5) that there is personal cultivation on the part of the
tenant or agricultural lessee; and 6) that the harvest is
shared between the landowner and the tenant or
agricultural lessee.
Canlas v. Tubil (2009)
Facts: On June 9, 2004, a complaint for unlawful
detainer was filed by respondent Iluminada Tubil against
petitioners Rodolfo Canlas, Victoria Canlas, Felicidad
Canlas and spouses Pablo and Charito Canlas before the
MTC. The complaint alleged that plaintiff (herein
respondent) is the owner of a residential lot in Guagua,
Pampanga; that sometime ago, the defendants (herein
petitioners) erected their houses in said land and are
presently occupying the same as their residential house;
that said houses were erected by mere tolerance of
plaintiff; that demands were verbally made upon
defendants to vacate and remove their house therefrom,
but defendants just ignored the plea and refused to
remove their houses; and that in light of said refusal,
the plaintiff referred the matter to a lawyer, who sent
defendants demand letters to vacate dated January 12,
2004, but in spite of receipt of the same defendants
failed and refused to vacate and remove their houses.
Page 243
Civil Procedure
ESGUERRA NOTES
The MTC rendered judgment, affirmed by the
RTC, dismissing the complaint for unlawful detainer
because respondent failed to show that the possession
of the petitioners was by mere tolerance. The Court of
Appeals reversed and ordered the RTC to decide the
case on the merits.
Issue: Whether or not the MTC has jurisdiction over the
instant complaint for unlawful detainer.
Held: Yes. Well-settled is the rule that what determines
the nature of the action as well as the court which has
jurisdiction over the case are the allegations in the
complaint. In ejectment cases, the complaint should
embody such statement of facts as to bring the party
clearly within the class of cases for which the statutes
provide a remedy, as these proceedings are summary in
nature. The complaint must show enough on its face to
give the court jurisdiction without resort to parol
evidence.
Unlawful detainer is an action to recover
possession of real property from one who illegally
withholds possession after the expiration or termination
of his right to hold possession under any contract,
express or implied. The possession of the defendant in
unlawful detainer is originally legal but became illegal
due to the expiration or termination of the right to
possess.
An unlawful detainer proceeding is summary in
nature, jurisdiction of which lies in the proper municipal
trial court or metropolitan trial court. The action must be
brought within one year from the date of last demand
and the issue in said case is the right to physical
possession. On the other hand, accion publiciana is the
plenary action to recover the right of possession which
should be brought in the proper regional trial court when
dispossession has lasted for more than one year. It is an
ordinary civil proceeding to determine the better right of
possession of realty independently of title. In other
words, if at the time of the filing of the complaint, more
than one year had elapsed since defendant had turned
plaintiff out of possession or defendant’s possession had
become illegal, the action will be, not one of forcible
entry or illegal detainer, but an accion publiciana.
In the instant case, respondent’s allegations in
the complaint clearly make a case for an unlawful
detainer, essential to confer jurisdiction on the MTC over
the subject matter. Respondent alleged that she was the
owner of the land; that the land had been declared for
taxation purposes and she had been paying the taxes
thereon; that petitioners’ entry and construction of their
houses were tolerated as they are relatives; and that
she sent on January 12, 2004 a letter demanding that
petitioners vacate the property but they failed and
refused to do so. The complaint for unlawful detainer
was filed on June 9, 2004, or within one year from the
time the last demand to vacate was made.
When the complaint fails to aver facts constitutive
of forcible entry or unlawful detainer
Valdez, Jr. v. CA (2006)
Facts: Petitioners Valdez filed with the MTC a complaint
for unlawful detainer against respondents Fabella,
alleging that they are the registered owners of a piece of
residential lot, that respondents (therein defendants)
Fabella, without any color of title, occupied the lot by
building their house thereon, and that respondents
refused to vacate despite several demands. The MTC
ruled in favor of the petitioners and ordered the
respondents to vacate the property. The Court of
Appeals reversed the decision and ruled that the MTC
has no jurisdiction over the complaint for unlawful
detainer for failure of the petitioners to allege that they
had given the respondents the right to occupy the
premises or that they had tolerated respondents’
possession of the same.
Issue: Whether or not based on the allegations of the
complaint, the MTC had jurisdiction over the complaint
for unlawful detainer.
Held: The MTC had no jurisdiction over the complaint.
To justify an action for unlawful detainer, it is essential
that the plaintiff’s supposed acts of tolerance must have
been present right from the start of the possession
which is later sought to be recovered. Otherwise, if the
possession was unlawful from the start, an action for
unlawful detainer would be an improper remedy. As
explained in Sarona vs. Villegas, cited in Muñoz vs.
Court of Appeals, tolerance must be present right from
the start of possession sought to be recovered, to
categorize a cause of action as one of unlawful detainer
not of forcible entry
It is the nature of defendant’s entry into the
land which determines the cause of action, whether it is
forcible entry or unlawful detainer. If the entry is illegal,
then the action which may be filed against the intruder
is forcible entry. If, however, the entry is legal but the
possession thereafter becomes illegal, the case is
unlawful detainer.
Indeed, to vest the court jurisdiction to effect
the ejectment of an occupant, it is necessary that the
complaint should embody such a statement of facts as
brings the party clearly within the class of cases for
which the statutes provide a remedy, as these
proceedings are summary in nature. The complaint must
show enough on its face the court jurisdiction without
resort to parol testimony.
The jurisdictional facts must appear on the
face of the complaint. When the complaint fails to aver
facts constitutive of forcible entry or unlawful detainer,
as where it does not state how entry was affected or
how and when dispossession started, the remedy should
either be an accion publiciana or an accion
reivindicatoria in the proper regional trial court.
In the instant case, the allegations in the
complaint do not contain any averment of fact that
would substantiate petitioners’ claim that they permitted
or tolerated the occupation of the property by
respondents. The complaint contains only bare
allegations that "respondents without any color of title
whatsoever occupies the land in question by building
their house in the said land thereby depriving petitioners
the possession thereof." Nothing has been said on how
respondents’ entry was effected or how and when
dispossession started. Admittedly, no express contract
existed between the parties. This failure of petitioners to
allege the key jurisdictional facts constitutive of unlawful
detainer is fatal. Since the complaint did not satisfy the
jurisdictional requirement of a valid cause for unlawful
detainer, the municipal trial court had no jurisdiction
over the case. Hence, the Court of Appeals correctly
found that the municipal trial court had no jurisdiction
over the complaint.
Page 244
Civil Procedure
ESGUERRA NOTES
Jurisdiction: Municipal Trial Court
Exception: Estoppel by laches
Velarma v. CA (1996)
Facts: Respondent Josefina Pansacola filed an
“ejectment suit” against petitioner before the Regional
Trial Court (RTC) of Mauban, Quezon. In her complaint,
she alleged that sometime in May 1981, petitioner
surreptitiously built his dwelling on a portion of her land
registered in the name of her husband Publio
(deceased); (2) that during several conferences before
the barangay captain, petitioner promised to vacate the
land but he still failed or refused to do so; (3) that she
instituted a criminal case against petitioner for violation
of the Anti-Squatting Law; (4) that the trial court
convicted petitioner of the offense; and (5) that despite
such judgment, and notwithstanding repeated demands
to vacate, petitioner continued occupying the property.
The RTC ordered petitioner to vacate the
subject land and remove his house therefrom. This was
affirmed by the Court of Appeals. Petitioner noe insists
that respondent had no cause of action against him
because the land on which his house stands belongs to
the government. Allegedly, in the "Minutes of the
Meeting of the Sangguniang Bayan of Mauban, Quezon"
Publio Pansacola signified before the Sangguniang Bayan
of Mauban his agreement to the transfer of the portion
of the subject land traversed by the new provincial
highway and its shoulder in exchange for a
corresponding portion of the old abandoned provincial
road. Notably, said minutes of the meeting of the
Sangguniang Bayan did not mention the execution of
any deed to perfect the agreement.
Issue: Whether or not the RTC acquired jurisdiction
over the case.
Held: As found by the trial court, the said minutes of
the meeting of the Sangguniang Bayan do not mention
the execution of any deed to perfect the agreement. An
engineer was appointed to survey the old abandoned
road, but this act does not in any manner convey title
over the abandoned road to the Pansacola spouses nor
extinguish their ownership over the land traversed by
the new provincial highway. No evidence was introduced
by petitioner to show that the survey was actually
undertaken and a specific portion of the abandoned road
partitioned and conveyed to the Pansacolas. It must be
stressed that the agreement to transfer the property
was made in 1974. More than twenty years later, no
actual transfer had yet been made. Unless and until the
transfer is consummated, or expropriation proceedings
instituted by the government, private respondent
continues to retain ownership of the land subject of this
case.
The Supreme Court noted that the ejectment
suit should have been filed before the MTC, and not the
RTC. The issue of ownership, however, had been
specifically raised before the RTC by petitioner himself,
who at the same time did not move to dismiss the
complaint for lack of jurisdiction. Instead, he filed his
answer and went to trial. Estoppel by laches has already
set in at this point in time.
Effect of claim of ownership on MTC jurisdiction
Hilario v. CA (1996)
Facts: Petitioner spouses Hilario purchased a house and
lot in Bulacan from respondent spouses Rosauro Palileo
and Josefina Anastacio under a deed of sale dated March
5, 1986. A separate document, executed on the same
day by the parties, granted petitioners the right to
repurchase the property within one year from said date.
Petitioners further allowed respondents to remain in
possession of the premises on the verbal understanding
that the latter would vacate the same after two years
from the date of the sale. As said period passed without
respondents complying therewith, even after several
demands by petitioners, the latter instituted a complaint
for unlawful detainer with the MTC.
Respondents alleged in their answer that deed
of conveyance was actually a deed of mortgage and
since their corresponding obligation had been
extinguished by payment, they remained as owners of
the subject property.
The MTC ordered respondents to vacate. This
was affirmed by the RTC. The Court of Appeals,
however, reversed and dismissed the complaint on the
ground that the issue raised by respondents involved the
question of ownership.
Issue: Whether or not the claim of ownership divests
the MTC of jurisdiction over a complaint for ejectment.
Held: No. Section 33(2) of Batas Pambansa Blg. 129,
prescribes the jurisdiction of inferior courts in forcible
entry and unlawful detainer cases as follows:
Sec. 33. Jurisdiction of Metropolitan
Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in Civil Cases. —
Metropolitan Trial Courts, Municipal Trail Courts,
and Municipal Circuit Trial Courts shall exercise:
xxx xxx xxx
(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.
Similarly, the Interim Rules and Guidelines on
the jurisdiction of inferior courts in ejectment cases
provides:
10. Jurisdiction in ejectment cases. —
Metropolitan trial courts, municipal trial courts,
and municipal circuit trial court, without
distinction, may try cases of forcible entry and
unlawful detainer even if the question of
ownership is raised in the pleadings and the
question of possession could not be resolved
without deciding the issue of ownership, but the
question of ownership shall be resolved only to
determine the issue of possession.
Republic Act No. 7691 amended pertinent
portions of B.P. Blg. 129. The jurisdiction of the
Page 245
Civil Procedure
ESGUERRA NOTES
aforesaid courts as defined in Section 33(2) of B.P. Blg.
129 was, however, retained by said amendatory Act. As
the law now stands, inferior courts retain jurisdiction
over ejectment cases even if the question of possession
cannot be resolved without passing upon the issue of
ownership; but this is subject to the same caveat that
the issue posed as to ownership could be resolved by
the court for the sole purpose of determining the issue
of possession.
It is underscored, however that the allegations
in the complaint for ejectment should sufficiently make
out a case for forcible entry or unlawful detainer, as the
case may be; otherwise, jurisdiction would not vest in
the inferior court. Jurisdiction over the subject matter
is, after all, determined by the nature of the action as
alleged or pleaded in the complaint. Thus, even where
the defendant alleges ownership or title to the property
in his or her answer, the inferior court will not be
divested of its jurisdiction. A contrary rule would pave
the way for the defendant to trifle with the ejectment
suit, which is summary in nature, as he could easily
defeat the same through the simple expedient of
asserting ownership.
Cases that do not prejudice ejectment suit
Wilmon Auto Supply v. CA (1992)
Facts: Petitioners were lessees of a commercial building
and bodegas. The lease contracts provided, among
others, that the lessor reserves the rights to sell or
encumber the property so long as it requires the
purchaser to respect the terms of the lease contract,
and that the lessee shall be duly informed about the
lessor’s plan to sell the property. After the expiration of
the period fixed in the lease agreements, the lessors
executed a public instrument entitled "Deed of Absolute
Sale," by virtue of which they sold the leased property
to respondent Star Group Resources and Development
Inc.
Subsequently, Star Group brought separate
actions of unlawful detainer in the MTCC against
petitioners. The lessees impugned Star Group’s right to
eject them. They argued that the sale violated their
leasehold rights because they were not accorded their
right of preemption and they were denied the option to
renew their leases upon expiration.
The same propositions were also set out as
causes of action in a complaint filed on by some of them
in the RTC – Iloilo to declare the sale as null and void ab
initio and to allow them to exercise their right of
preemption.
In the unlawful detainer actions, petitioner
lessees prayed for the dismissal of the ejectment suits
on the ground of litis pendentia in view of the action
instituted before the RTC. The motion was denied. On
the other hand, the RTC dismissed the petitions and
ruled that the pendency of an action involving ownership
and annulment of sale does not stay the proceedings in
the ejectment case.
Issue: Whether or not the action for unlawful detainer
filed in the MTC should be abated or suspended until
resolution of the cases in the RTC involving the sale,
ownership and physical possession of the subject
property.
Held: No. It is a question that is far from novel, one
that has been passed upon and resolved by the Court in
numerous cases, and one to which a negative answer
has invariably been given. The relevant precedents are
hereunder outlined:
1. Injunction suits instituted in the RTC by
defendants in ejectment actions in the municipal
trial courts or other courts of the first level do not
abate the latter; and neither do proceedings on
consignation of rentals;
2. An "accion publiciana" does not suspend an
ejectment suit against the plaintiff in the former;
3. A "writ of possession case" where ownership is
concededly the principal issue before the
Regional Trial Court does not preclude nor bar
the execution of the judgment in an unlawful
detainer suit where the only issue involved is the
material possession or possession de facto of the
premises;
4. An action for quieting of title to property is not a
bar to an ejectment suit involving the same
property;
5. Suits for specific performance with damages do
not affect ejectment actions;
6. An action for reformation of instrument does not
suspend an ejectment suit between the same
parties;
7. An action for reconveyance of property or "accion
reivindicatoria" also has no effect on ejectment
suits regarding the same property; and
8. Neither do suits for annulment of sale, or title, or
document affecting property operate to abate
ejectment actions respecting the same property.
The underlying reasons for the above rulings
were that the actions in the RTC did not involve physical
or de facto possession and, on not a few occasions, that
the case in the RTC was merely a ploy to delay
disposition of the ejectment proceeding, or that the
issues presented in the former could quite as easily be
set up as defenses in the ejectment action and there
resolved.
As the law now stands, even when, in forcible
entry and lawful detainer cases, the defendant raises the
question of ownership in his pleadings and the question
of possession cannot be resolved without deciding that
issue of ownership, the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Trial Courts
nevertheless have the undoubted competence to resolve
"the issue of ownership … only to determine the issue of
possession."
Forcible Entry distinguished from Unlawful
Detainer
Prior Possession
 Forcible Entry – required
 Unlawful detainer – not required
In forcible entry, one is deprived of physical
possession of real property by means of force,
intimidation, strategy, threats, or stealth whereas in
unlawful detainer, one illegally withholds possession
after the expiration or termination of his right to hold
possession under any contract, express or implied. The
two are distinguished from each other in that in forcible
entry, the possession of the defendant is illegal from the
beginning, and that the issue is which party has prior de
facto possession while in unlawful detainer, possession
Page 246
Civil Procedure
ESGUERRA NOTES
of the defendant is originally legal but became illegal
due to the expiration or termination of the right to
possess… Both actions must be brought within one year
from the date of actual entry on the land, in case of
forcible entry, and from the date of last demand, in case
of unlawful detainer. (Valdez v. Court of Appeals, G.R.
No. 132424, 2 May 2006)
Possession by tolerance
Heirs of Rafael Magpily v. De Jesus (2005)
Facts: Rafael Magpily (“Magpily”) is the owner of a
parcel of land planted with fruit-bearing trees and
tenanted by Nazaria Tope (“Tope”). Sometime in July
1978, upon Tope’s request, Magpily allowed Tope’s
nephew, herein private respondent to construct a house
of light materials on a portion of the land and to
gratuitously occupy the same. The agreement was
embodied in a Salaysay duly signed by the parties. Their
relationship, however, turned sour when private
respondent interfered with the gathering of coconuts
and other fruits in the lot. Magpily requested private
respondent to vacate the premises but the latter
refused, prompting him to file the instant ejectment suit.
In his defense, private respondent alleged that he is a
bona fide agricultural tenant, and the case must be
dismissed since the court had no jurisdiction over the
issue. Private respondent argued that the subject matter
involves a tenancy dispute within the exclusive
jurisdiction of the Department of Agrarian Reform
Adjudication Board (DARAB).
Issue: Whether the ejectment suit is proper in this case
Held: Yes. Private respondent failed to discharge the
burden of proving that he was an agricultural tenant of
Magpily and that the instant case involves an agrarian
dispute cognizable by the DARAB. The MTC thus lawfully
took cognizance of the present controversy which
involves the gratuitous occupation of another’s property
which became unlawful by virtue of the owners
withdrawal of consent or tolerance to such occupation.
The rule is that possession by tolerance is
lawful, but such possession becomes unlawful when
the possessor by tolerance refuses to vacate upon
demand made by the owner. A person who occupies the
land of another at the latter’s tolerance or permission,
without any contract between them, is necessarily
bound by an implied promise to vacate upon demand,
failing which, a summary action for ejectment is the
proper remedy.
Considering that private respondent’s
occupation of the subject land is now unlawful in view of
Magpily’s demand to vacate the premises, ejectment of
private respondent therefrom is warranted.
When to count one year period (prescription to file
the action under Rule 70, Rules of Court)
 In actions for forcible entry, the one year period
should be reckoned from the actual entry,
except where the entry was committed with
stealth. If the entry was done through stealth,
the one year period shall be counted from the
date of discovery of the entry.
Ong v. Parel (2001)
Facts: Spouses Pedro and Veronica Ong (“Spouses
Ong”) are the registered owners of Lot A, having
purchased the property from Spouses Magbag in
1994. Adjacent to Lot A is Lot B registered under the
name of Visitacion Beltran (“Beltran”), grandmother of
respondent Socorro Parel (“Parel”).
On 25 May 1995, Spouses Ong filed an action for
forcible entry before the Municipal Trial Court (MTC)
against Parel alleging among other things that Parel
through strategy and stealth constructed an overhang
and hollow block wall along the common boundary of
the parties’ adjoining lot, thereby illegally depriving
plaintiffs of possession of the said portion of their lot.
Spouses Ong alleged that they discovered Parel’s illegal
possession of their lot on 23 August 1994 when they had
the boundaries of their lot resurveyed. Finally, Spouses
Ong alleged that they made various demands from Parel
to remove the constructions which he introduced in Lot
A, and to vacate the same, the last of which demands
having been made on 19 December 1994.
Parel denied the material allegations of the
complaint and alleged that the overhang and hollow
block wall had already been in existence since 1956 and
that these structures are within the boundary of Lot B
owned by him. Parel argued that the alleged
encroachments were made by the late Beltran at the
time when she still owned both Lots A and B.
Issues:
a. Can the construction of an overhand
and hollow block wall along a
common boundary of adjoining lots
be the subject of an action for
forcible entry?
b. How is stealth defined for purposes
for an action for forcible entry? In
cases of entry through stealth, when
should the one-year period to file an
action for forcible entry be counted?
Held: Section 1, Rule 70 of the Rules of Court requires
that in actions for forcible entry the plaintiff is allegedly
deprived of the possession of any land or building by
force, intimidation, threat, strategy, or stealth and that
the action is filed any time within one year from the time
of such unlawful deprivation of possession. This
requirement implies that in such cases, the possession
of the land by the defendant is unlawful from the
beginning as he acquires possession thereof by unlawful
means. The plaintiff must allege and prove that he was
in prior physical possession of the property in litigation
until he was deprived thereof by the defendant. The one
year period within which to bring an action for forcible
entry is generally counted from the date of actual entry
on the land, except that when entry was made through
stealth, the one year period is counted from the time the
plaintiff learned thereof. If the alleged dispossession did
not occur by any of the means stated in section 1, Rule
70, the proper recourse is to file a plenary action to
recover possession with the regional trial court.
In their complaint, Spouses Ong aver that
through stealth and strategy Parel constructed the
controversial overhang and hollow block wall along the
Page 247
Civil Procedure
ESGUERRA NOTES
common boundary of the parties adjoining lots
which encroached on petitioners’ Lot A. Stealth is
defined as any secret, sly, or clandestine act to avoid
discovery and to gain entrance into or remain within
residence of another without permission. However,
petitioners failed to establish that Parel encroached upon
their property through stealth as it was not shown when
and how the alleged entry was made on the portion of
their lot. On the other hand, Parel’s position that Beltran
constructed the alleged encroachments in 1956, and
was present at the time Spouses Ong purchased Lot A
from spouses Magbag, was affirmed by the MTC and the
Regional Trial Court since Spouses Ong themselves
admitted that they discovered such encroachment only
after a relocation survey on their lot in 1994.
It becomes clear that this is not a proper case
for forcible entry wherein one party unlawfully deprives
another of possession of the property subject of the
litigation. It is a boundary dispute wherein the adobe
wall, overhang and window grill on the respondents side
of the property encroach petitioners side of the
property. The proper action should either be accion
publiciana or accion reinvindicatoria for which the MTC
has no jurisdiction.
 In actions for unlawful detainer, the one year
period is determined from the last demand to
vacate. However, said period shall be counted
from the date of first demand when the
subsequent demands are merely in the nature of
reminders or reiterations of the original demand.
Labastida v. Court of Appeals (1998)
Facts: Private respondents Deleste are the owners of
the subject parcel of land. A portion of said lot was
leased to Labastida. On 6 December 1983, Deleste filed
a complaint against Labastida, alleging that in 1979,
Deleste served notice to Labastida to vacate the leased
premises, but the latter refused to oblige. On 20
February 1983, Deleste sent another written notice to
Labastida to vacate, but to no avail. Labastida filed a
motion to dismiss, alleging among others that the action
has prescribed since no verbal or written demand to
vacate was made by the Deleste in 1979 or in 1980 .
Issue: Was the complaint filed within the prescriptive
period under Rule 70?
Held: Yes. In case several demands to vacate are made,
the period is reckoned from the date of the last demand.
In this case, several demands to vacate were alleged to
have been made by Deleste, the last of which was dated
20 February 1983. As the complaint was filed on 3
December 1983, that is, within one year from 20
February 1983, it is clear that the case for unlawful
detainer was filed within the prescriptive period under
Section 1, Rule 70. As we have already stated, where
there are several demands made, the period of unlawful
withholding starts to run from the date of the last
demand on the theory that if the lessor brings no action
shortly after the demand, it may be because he has
agreed to the renewal of the lease.
N.B. The complaint was denominated as “recovery of
possession” and filed before the Regional Trial Court.
The Supreme Court held that the case should have been
a case for unlawful detainer, cognizable by the Municipal
Trial Court. Aside from ruling that the case was filed
within the period provided by the Rules of Court, the
Supreme Court added that “the Regional Trial Court
would have jurisdiction if the deprivation of possession
had been committed through other means than those
enumerated in Rule 70, or if the period of dispossession
under Rule 70 has lasted for more than a year.”
Racaza v. Gozum (2006)
Facts: Petitioners are the co-owners of a subject
property, which was formerly owned by their father
Carlos Torres. In 1981, respondent occupied the back
portion of the subject property on a monthly rental of
P3,500.00 and continued to occupy the same even after
the death of Carlos Torres.
On 1 July 1995, petitioners sent respondent a
letter demanding that the latter vacate the subject
property but to no avail. On 27 May 1997, petitioners
sent another demand letter on the ground that the
verbal contract of lease over the property had already
expired sometime in July 1995, and the same has not
been renewed and since then, respondent had
discontinued paying the monthly rentals of P3,500.00.
When the second demand was not heeded, on 4 June
1997, the present complaint for recovery of possession
or accion publiciana was initiated before the Regional
Trial Court of Pasig City (RTC).
Respondent filed a motion to dismiss, alleging
that the proper complaint should be one for unlawful
detainer within the jurisdiction of the Municipal Trial
Court. In the Order dated 30 September 1997, the RTC
denied the motion to dismiss on the ground that an
unlawful detainer must be filed within one (1) year from
the notice to vacate given as early as July 1, 1995 and
since over two (2) years had passed when the case was
filed, the proper action is accion publiciana and no
longer unlawful detainer. The Court of Appeals reversed
the decision of the RTC and dismissed the case, holding
that the lower court had no jurisdiction over the
complaint for accion publiciana considering that it had
been filed before the lapse of one (1) year from the date
the last letter of demand to respondent had been made.
Issue: Was the complaint filed within the prescriptive
period?
Held: Yes. To summarize, petitioners claim that (1) they
are the owners of the property, being the successors-in-
interest of the original owners; (2) their predecessors-
in-interest entered into a verbal lease agreement with
respondent on a month-to-month basis; (3) they
decided to terminate the verbal lease contract upon the
expiration of the last monthly term sometime in 1995;
and (4) on 1 July 1995, they demanded that respondent
leave the property, but respondent refused to do so.
Undeniably, the foregoing averments
constitute a cause of action that is based primarily on
unlawful deprivation or withholding of possession.
Petitioners seek the recovery of the possession of the
leased premises following the lapse of the term of the
verbal lease contract entered into by petitioners’
predecessors-in-interest with respondent. The allegation
that the contract is on a month-to-month basis becomes
material in this sense because it signifies that the lease
contract is terminable at the end of every month. Thus,
Page 248
Civil Procedure
ESGUERRA NOTES
petitioners may exercise their right to terminate the
contract at the end of any month even if none of the
conditions of the contract had been violated, and such
right cannot be defeated by the lessee's timely payment
of the rent or by his willingness to continue doing so.
Respondent’s right to remain in possession of
the property subject of the lease was extinguished upon
the expiration of the grace period mentioned in the 1
July 1995 demand letter. It thus becomes respondent’s
obligation to turn over the property to petitioners, failing
which petitioners would have the right to immediately
resort to ejectment action to recover possession. Their
complaint could thus fall under two kinds of ejectment
suits, the first being for unlawful detainer cognizable by
the metropolitan or municipal trial courts under Rule 70
and the second being for accion publiciana cognizable by
the regional trial courts.
An action for unlawful detainer exists when a
person unlawfully withholds possession of any land or
building against or from a lessor, vendor, vendee or
other persons, after the expiration or termination of the
right to hold possession, by virtue of any contract,
express or implied. This summary action should be filed
with the municipal trial courts within one year after the
occurrence of the unlawful deprivation or withholding of
possession. Beyond the one-year period, the real right
of possession may be recovered through the filing of
an accion publiciana with the regional trial courts.
Notably, demand or notice to vacate is not a
jurisdictional requirement when the action is based on
the expiration of the lease. Any notice given would only
negate any inference that the lessor has agreed to
extend the period of the lease. The law requires notice
to be served only when the action is due to the lessee’s
failure to pay or the failure to comply with the conditions
of the lease. The one-year period is thus counted from
the date of first dispossession. To reiterate, the
allegation that the lease was on a month-to-month basis
is tantamount to saying that the lease expired every
month. Since the lease already expired mid-year in 1995
as communicated in petitioners’ letter dated 1 July
1995, it was at that time that respondent’s occupancy
became unlawful.
Even assuming, for the sake of argument, that
a demand or notice to vacate was necessary, a reading
of the letter dated 27 May 1997 shows that petitioners
were merely reiterating their original demand for
respondent to vacate on the basis of the expiration of
the verbal lease contract mentioned in the first letter.
The Court has, in the past, ruled that subsequent
demands which are merely in the nature of reminders or
reiterations of the original demand do not operate to
renew the one-year period within which to commence
the ejectment suit considering that the period will still be
reckoned from the date of the original demand.
Damages that can be recovered - fair rental value
or the reasonable compensation for the use and
occupation of the leased property
Dumo vs. Espinas (2006)
Facts: Petitioner filed a complaint for forcible entry
against respondents, praying for the payment of actual
damages in the amount of P75,000.00, lost earnings
of P5,000.00 per day, moral damages of P100,000.00
and attorney’s fees in the amount of P50,000.00. In its
decision, the Municipal Trial Court (MTC), granted the
prayer for damages, the pertinent part of the dispositive
portion reads:
The defendants are likewise ordered to pay
jointly and severally the plaintiffs the amount
of P30,000.00 as actual damages plusP500.00 a day as
lost earning of the premises from October 30, 1996 up
to the time defendants vacate the premises; P30,000.00
as moral damages; P10,000.00 as exemplary damages;
and P30,000.00 as attorneys fee and to pay double cost.
On appeal, the Regional Trial Court (RTC)
reversed the MTC’s decision. However, the Court of
Appeals (CA) reinstated with modification the MTC
decision by deleting the awards for actual, moral and
exemplary damages. Petitioners appealed the CA
decision, on the ground among others that the CA did
not have jurisdiction to rule on the matter of damages
because this issue was not raised in the appeal filed
before it.
Issue: What are the forms of damages which may be
awarded in complaints for forcible entry?
Held: There is no basis for the MTC to award actual,
moral and exemplary damages in view of the settled
rule that in ejectment cases, the only damage that can
be recovered is the fair rental value or the reasonable
compensation for the use and occupation of the
property. Considering that the only issue raised in
ejectment is that of rightful possession, damages which
could be recovered are those which the plaintiff could
have sustained as a mere possessor, or those caused by
the loss of the use and occupation of the property, and
not the damages which he may have suffered but which
have no direct relation to his loss of material
possession. Although the MTC’s order for the
reimbursement to petitioners of their alleged lost
earnings over the subject premises, which is a beach
resort, could have been considered as compensation for
their loss of the use and occupation of the property
while it was in the possession of the respondents,
records do not show any evidence to sustain the same.
Thus, we find no error in the ruling of the RTC that the
award for lost earnings has no evidentiary or factual
basis; and in the decision of the CA affirming the same.
Summary nature of FEUD
Revised Rules on Summary Procedure
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).
… … …
Page 249
Civil Procedure
ESGUERRA NOTES
II.
Civil Cases
Sec. 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.
Sec. 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 forthwith issue summons which shall
state that the summary procedure under this Rule shall
apply.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
e. Such other matters intended to
expedite the disposition of the case.
Sec. 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.
Sec. 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 the clarificatory
procedure to gain time for the rendition of the
judgment.
Judgment immediately executory
 Section 19 - when stayed:
Immediate execution of
judgment; how to stay same. If judgment is
rendered against the defendant, execution
shall issue immediately upon motion unless an
appeal has been perfected and the defendant
to stay execution files a sufficient supersedeas
bond, approved by the Municipal Trial Court
and executed in favor of the plaintiff to pay the
rents, damages, and costs accruing down to
the time of the judgment appealed from, and
unless, during the pendency of the appeal, he
deposits with the appellate court the amount of
rent due from time to time under the contract,
if any, as determined by the judgment of the
Municipal Trial Court. In the absence of a
Page 250
Civil Procedure
ESGUERRA NOTES
contract, he shall deposit with the Regional
Trial Court the reasonable value of the use and
occupation of the premises for the preceding
month or period at the rate determined by the
judgment of the lower court on or before the
tenth day of each succeeding month or period.
The supersedeas bond shall be transmitted by
the Municipal Trial Court, with the papers, to
the clerk of the Regional Trial Court to which
the action is appealed.
All amounts so paid to the appellate
court shall be deposited with said court or
authorized government depositary bank, and
shall be held there until the final disposition of
the appeal, unless the court, by agreement of
the interested parties, or in the absence of
reasonable grounds of opposition to a motion
to withdraw, or for justifiable reasons, shall
decree otherwise. Should the defendant fail to
make the payments above prescribed from
time to time during the pendency of the
appeal, the appellate court, upon motion of the
plaintiff, and upon proof of such failure, shall
order the execution of the judgment appealed
from with respect to the restoration of
possession, but such execution shall not be a
bar to the appeal taking its course until the
final disposition thereof on the merits.
After the case is decided by the
Regional Trial Court, any money paid to the
court by the defendant for purposes of the stay
of execution shall be disposed of in accordance
with the provisions of the judgment of the
Regional Trial Court. In any case wherein it
appears that the defendant has been deprived
of the lawful possession of land or building
pending the appeal by virtue of the execution
of the judgment of the Municipal Trial Court,
damages for such deprivation of possession
and restoration of possession and restoration
of possession may be allowed the defendant in
the judgment of the Regional Trial Court
disposing of the appeal.
 Section 21 – cannot be stayed:
Immediate execution on appeal to
Court of Appeals or Supreme Court. — The
judgment of the Regional Trial Court against
the defendant shall be immediately executory,
without prejudice to a further appeal that may
be taken therefrom.
Ejectment case survives death of defendant
Vda. De Salazar v. Court of Appeals (1995)
Facts: Private respondents Nepomuceno filed separate
complaints for ejectment against petitioner’s deceased
husband Benjamin Salazar. The trial court ruled in favor
of Nepomuceno, which decision was affirmed by the
Court of Appeals. Almost a year after the termination of
that petitioner assailed the same trial court decision as
having been rendered by a court that did not have
jurisdiction over her and the other heirs of her deceased
husband because notwithstanding the fact that her
husband had already died on 3 October 1991, the trial
court still proceeded to render its decision on 23 August
1993 without effecting the substitution of heirs in
accordance with Section 17, Rule 3, of the Rules of
Court thereby depriving her of her day in court.
Issue: Where the defendant in an ejectment case dies
before the rendition by the trial court of its decision
therein, does the trial court's failure to effectuate a
substitution of heirs before its rendition of judgment
render such judgment jurisdictionally infirm?
Held: No. Ejectment, being an action involving recovery
of real property, is a real action which as such, is not
extinguished by the defendant's death. The question as
to whether an action survives or not depends on the
nature of the action and the damage sued for. In the
causes of action which survive, the wrong complained
affects primarily and principally property and property
rights, the injuries to the person being merely incidental,
while in the causes of action which do not survive, the
injury complained of is to the person, the property and
rights of property affected being incidental. There is no
dispute that an ejectment case survives the death of a
party, which death did not extinguish the deceased's
civil personality. More significantly, a judgment in an
ejectment case is conclusive between the parties and
their successors in interest by title subsequent to the
commencement of the action.
Rule 71
Contempt
1997 Rules on Civil Procedure, Rule 71
Section 1. Direct contempt punished summarily. —
A person guilty of misbehavior in the presence of or so
near a court as to obstruct or interrupt the proceedings
before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be
sworn or to answer as a witness, or to subscribe an
affidavit or deposition when lawfully required to do so,
may be summarily adjudged in contempt by such court
and punished by a fine not exceeding two thousand
pesos or imprisonment not exceeding ten (10) days, or
both, if it be a Regional Trial Court or a court of
equivalent or higher rank, or by a fine not exceeding
two hundred pesos or imprisonment not exceeding one
(1) day, or both, if it be a lower court.
Section 2. Remedy therefrom. — The person
adjudged in direct contempt by any court may not
appeal therefrom, but may avail himself of the
remedies of certiorari or prohibition. The execution of
the judgment shall be suspended pending resolution of
such petition, provided such person files a bond fixed
by the court which rendered the judgment and
conditioned that he will abide by and perform the
judgment should the petition be decided against him.
Section 3. Indirect contempt to be punished after
charge and hearing. — After a charge in writing has
been filed, and an opportunity given to the respondent
to comment thereon within such period as may be fixed
by the court and to be heard by himself or counsel, a
person guilty of any of the following acts may be
punished for indirect contempt;
a.Misbehavior of an officer of a court in the
performance of his official duties or in his official
transactions;
Page 251
Civil Procedure
ESGUERRA NOTES
b.Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including the
act of a person who, after being dispossessed or
ejected from any real property by the judgment or
process of any court of competent jurisdiction, enters
or attempts or induces another to enter into or upon
such real property, for the purpose of executing acts of
ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled
thereto;
c.Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt under section 1 of this Rule;
d.Any improper conduct tending, directly or
indirectly, to impede, obstruct, or degrade the
administration of justice;
e.Assuming to be an attorney or an officer of a court,
and acting as such without authority;
f.Failure to obey a subpoena duly served
g.The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an
order or process of a court held by him
But nothing in this section shall be so construed as
to prevent the court from issuing process to bring the
respondent into court, or from holding him in custody
pending such proceedings.
Section 4. How proceedings commenced. —
Proceedings for indirect contempt may be
initiated motu propio by the court against which the
contempt was committed by an order or any other
formal charge requiring the respondent to show cause
why he should not be punished for contempt.
In all other cases, charges for indirect contempt shall
be commenced by a verified petition with supporting
particulars and certified true copies of documents or
papers involved therein, and upon full compliance with
the requirements for filing initiatory pleadings for civil
actions in the court concerned. If the contempt charges
arose out of or are related to a principal action pending
in the court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard and
decided separately, unless the court in its discretion
orders the consolidation of the contempt charge and
the principal action for joint hearing and decision.
Section 5. Where charge to be filed. — Where the
charge for indirect contempt has been committed
against a Regional Trial Court or a court of equivalent
or higher rank, or against an officer appointed by it,
the charge may be filed with such court. Where such
contempt has been committed against a lower court,
the charge may be filed with the Regional Trial Court of
the place in which the lower court is sitting; but the
proceedings may also be instituted in such lower court
subject to appeal to the Regional Trial Court of such
place in the same manner as provided in section 11 of
this Rule.
Section 6. Hearing; release on bail. — If the hearing
is not ordered to be had forthwith, the respondent may
be released from custody upon filing a bond, in an
amount fixed by the court, for his appearance at the
hearing of the charge. On the day set therefor, the
court shall proceed to investigate the charge and
consider such comment, testimony or defense as the
respondent may make or offer.
Section 7. Punishment for indirect contempt. — If
the respondent is adjudged guilty of indirect contempt
committed against a Regional Trial Court or a court of
equivalent or higher rank, he may be punished by a
fine not exceeding thirty thousand pesos or
imprisonment not exceeding six (6) months, or both. If
he is adjudged guilty of contempt committed against a
lower court, he may be punished by a fine not
exceeding five thousand pesos or imprisonment not
exceeding one (1) month, or both. If the contempt
consists in the violation of a writ of injunction,
temporary restraining order or status quo order, he
may also be ordered to make complete restitution to
the party injured by such violation of the property
involved or such amount as may be alleged and
proved.
The writ of execution, as in ordinary civil actions,
shall issue for the enforcement of a judgment imposing
a fine unless the court otherwise provides.
Section 8. Imprisonment until order obeyed. —
When the contempt consists in the refusal or omission
to do an act which is yet in the power of the
respondent to perform, he may be imprisoned by order
of the court concerned until he performs it.
Section 9. Proceeding when party released on bail
fails to answer. — When a respondent released on bail
fails to appear on the day fixed for the hearing, the
court may issue another order of arrest or may order
the bond for his appearance to be forfeited and
confiscated, or both; and, if the bond be proceeded
against, the measure of damages shall be the extent of
the loss or injury sustained by the aggrieved party by
reason of the misconduct for which the contempt
charge was prosecuted, with the costs of the
proceedings, and such recovery shall be for the benefit
of the party injured. If there is no aggrieved party, the
bond shall be liable and disposed of as in criminal
cases.
Section 10. Court may release respondent. — The
court which issued the order imprisoning a person for
contempt may discharge him from imprisonment when
it appears that public interest will not be prejudiced by
his release.
Section 11. Review of judgment or final order; bond
for stay. — The judgment or final order of a court in a
case of indirect contempt may be appealed to the
proper court as in criminal cases. But execution of the
judgment or final order shall not be suspended until a
bond is filed by the person adjudged in contempt, in an
amount fixed by the court from which the appeal is
taken, conditioned that if the appeal be decided against
him he will abide by and perform the judgment or final
order.
Section 12. Contempt against quasi-judicial entities.
— Unless otherwise provided by law, this Rule shall
apply to contempt committed against persons, entities,
Page 252
Civil Procedure
ESGUERRA NOTES
bodies or agencies exercising quasi-judicial functions,
or shall have suppletory effect to such rules as they
may have adopted pursuant to authority granted to
them by law to punish for contempt. The Regional Trial
Court of the place wherein the contempt has been
committed shall have jurisdiction over such charges as
may be filed therefor.
Contempt, definition
In Lorenzo Shipping Corporation v. Distribution
Management Association of the Philippines (G.R. No.
155849, 31 August 2011), the Supreme Court defined
contempt of court as follows:
Contempt of court has been defined as
a willful disregard or disobedience of a public
authority. In its broad sense, contempt is a
disregard of, or disobedience to, the rules or
orders of a legislative or judicial body or an
interruption of its proceedings by disorderly
behavior or insolent language in its presence or
so near thereto as to disturb its proceedings or to
impair the respect due to such a body. In its
restricted and more usual sense, contempt
comprehends a despising of the authority,
justice, or dignity of a court. The phrase
contempt of court is generic, embracing within its
legal signification a variety of different acts.
The power to punish for contempt is
inherent in all courts, and need not be specifically
granted by statute. It lies at the core of the
administration of a judicial system. Indeed, there
ought to be no question that courts have the
power by virtue of their very creation to impose
silence, respect, and decorum in their presence,
submission to their lawful mandates, and to
preserve themselves and their officers from the
approach and insults of pollution. The power to
punish for contempt essentially exists for the
preservation of order in judicial proceedings and
for the enforcement of judgments, orders, and
mandates of the courts, and, consequently, for
the due administration of justice. The reason
behind the power to punish for contempt is that
respect of the courts guarantees the stability of
their institution; without such guarantee, the
institution of the courts would be resting on a
very shaky foundation.
Distinction between direct and indirect contempt
Atty. Tabujara v. Judge Asdala (2009)
Facts: Atty. Tabujara failed to appear and produce
before the court the body of his son, Carlos Tabujara,
who was the subject of a Petition for Habeas Corpus
case filed by his wife against him. For his failure to
appear, Judge Asdala declared him in contempt of court
and issued a bench warrant for the arrest of Atty.
Tabujara “until such time that he is willing to appear and
comply with the order of this Court...”
Issue: Is the declaration of contempt by respondent
judge proper in this case?
Held: No. Judge Asdala abused her contempt powers. If
at all, complainant was guilty of indirect contempt and
not direct contempt. Indirect or constructive contempt is
committed outside of the sitting of the court and may
include misbehavior of an officer of the court in the
performance of his official duties or in his official
transactions, disobedience of or resistance to a lawful
writ, process, order, judgment, or command of a court,
or injunction granted by a court or a judge, any abuse or
any unlawful interference with the process or
proceedings of a court not constituting direct contempt,
or any improper conduct tending directly or indirectly to
impede, obstruct or degrade the administration of
justice.
For not affording complainant the opportunity
to explain why he
should not be cited in contempt, she blatantly
disregarded Rule 71 of the Rules of Court. In Lim v.
Domagas where the therein judge declared the therein
complainant guilty of contempt and ordered his arrest
for failure to bring three minors before the court without
the benefit of a hearing, the Court faulted the therein
judge not only for grave abuse of discretion but also for
gross ignorance of the law.
Prosecutor Baculi v. Judge Belen (2009)
There are two kinds of contempt punishable by
law: direct contempt and indirect contempt. Direct
contempt is committed when a person is guilty of
misbehavior in the presence of or so near a court as to
obstruct or interrupt the proceedings before the same,
including disrespect toward the court, offensive
personalities toward others, or refusal to be sworn or to
answer as a witness, or to subscribe an affidavit or
deposition when lawfully required to do so. Indirect
contempt or constructive contempt is that which is
committed out of the presence of the court. Any
improper conduct tending, directly or indirectly, to
impede, obstruct, or degrade the administration of
justice would constitute indirect contempt.
Criminal and civil contempt
Remman Enterprises v. Court of Appeals (1997)
Held: The real character of the proceedings in contempt
cases is to be determined by the relief sought or by the
dominant purpose. The proceedings are to be regarded
as criminal when the purpose is primarily punishment,
and civil when the purpose is primarily compensatory or
remedial.
In general, criminal contempt proceedings
should be conducted in accordance with the principles
and rules applicable to criminal cases, in so far as such
procedure is consistent with the summary nature of
contempt proceedings. Strict rules that govern criminal
prosecutions apply to a prosecution for criminal
contempt; the accused is to be afforded many of the
protections provided in regular criminal cases; and
proceedings under statutes governing them are to be
strictly construed. However, criminal proceedings are
not required to take any particular form so long as the
substantial rights of the accused are preserved.
Civil contempt proceedings, on the other hand, are
generally held to be remedial and civil in nature; that is,
for the enforcement of some duty, and essentially a
Page 253
Civil Procedure
ESGUERRA NOTES
remedy resorted to, to preserve and enforce the rights
of a private party to an action and to compel obedience
to a judgment or decree intended to benefit such a party
litigant. The rules of procedure governing criminal
contempt proceedings, or criminal prosecutions,
ordinarily are inapplicable to civil contempt proceedings.
An order of direct contempt is not immediately
executory or enforceable
Rodriguez and Tulali v. Blancaflor (2011)
Facts: A criminal case for arson was pending before the
sala of respondent Judge Blancaflor. Atty. Tulali was the
prosecutor in said case. During the pendency of the
case, Atty. Tulali was implicated in a purported bribery
involving Judge Blancaflor’s driver, Awayan, to assure
the acquittal of the accused therein. Tulali then filed
an Ex-Parte Manifestation withdrawing his appearance in
the said case to prevent any suspicion of misdemeanor
and collusion. He attached to the said manifestation a
copy of the administrative complaint against Awayan
filed (but eventually withdrawn) by his superior,
Rodriguez, before the Office of the Governor of Palawan.
Judge Blancaflor acquitted the accused.
Purportedly on the basis of the administrative
complaint filed against Awayan and Rodriguez, Judge
Blancaflor summoned several witnesses including Tulali
and heard their testimonies. On 30 July 2009, he issued
an order summoning Rodriguez to appear before him for
the purpose of holding an inquiry on matters pertaining
to his possible involvement in Tulali’s filing of the ex-
parte manifestation and the administrative complaint
against Awayan, among others. In another order dated
13 August 2009, Judge Blancaflor informed the
Rodriguez and Tulali that he was proceeding against
them for direct contempt and violation of their oath of
office on the basis of Tulali’s Ex-Parte Manifestation. In
his 13 October 2009 Decision, Judge Blancaflor found
Rodriguez and Tulali guilty of direct contempt and
ordered them to issue a public apology to the court. In
the same decision, Judge Blancaflor suspended them
indefinitely from the practice of law.
Issue: Whether the proceedings for direct contempt
conducted by Judge Blancaflor were proper
Held: No. Direct contempt is any misbehavior in the
presence of or so near a court as to obstruct or interrupt
the proceedings before the same, including disrespect
toward the court, offensive personalities toward others,
or refusal to be sworn or to answer as a witness, or to
subscribe an affidavit or deposition when lawfully
required to do so.
Based on the foregoing definition, the act of Tulali in
filing the Ex-Parte Manifestation cannot be construed as
contumacious within the purview of direct contempt. It
must be recalled that the subject manifestation bore
Tulali’s voluntary withdrawal from the arson case to
dispel any suspicion of collusion between him and the
accused. Its filing on the day before the promulgation of
the decision in the pending criminal case, did not in any
way disrupt the proceedings before the court.
Accordingly, he should not be held accountable for his
act which was done in good faith and without malice.
Neither should Rodriguez be liable for direct
contempt as he had no knowledge of, or participation in,
the preparation and filing of the subject manifestation. It
was signed and filed by Tulali alone in his capacity as
the trial prosecutor in the arson case. The attached
complaint against Awayan was filed with the Office of
the Palawan Governor, and not with the RTC.
Apparently, Judge Blancaflor’s conclusion, that
the subject manifestation containing derogatory matters
was purposely filed to discredit the administration of
justice in court, is unfounded and without basis. There
being no factual or legal basis for the charge of direct
contempt, it is clear that Judge Blancaflor gravely
abused his discretion in finding petitioners guilty as
charged.
In fine, having established that Judge
Blancaflor committed grave abuse of discretion
amounting to lack or excess of jurisdiction, petitioners
are entitled to the remedy of prohibition under Section
2, Rule 71 of the Rules on Contempt which provides:
SEC. 2. Remedy therefrom. - The person
adjudged in direct contempt by any court may not
appeal therefrom, but may avail himself of the remedies
of certiorari or prohibition. The execution of the
judgment shall be suspended pending resolution of such
petition, provided such person files a bond fixed by the
court which rendered the judgment and conditioned that
he will abide by and perform the judgment should the
petition be decided against him.
Accordingly, an order of direct contempt is not
immediately executory or enforceable. The contemnor
must be afforded a reasonable remedy to extricate or
purge himself of the contempt. Where the person
adjudged in direct contempt by any court avails of the
remedy of certiorari or prohibition, the execution of the
judgment shall be suspended pending resolution of such
petition provided the contemnor files a bond fixed by the
court which rendered the judgment and conditioned that
he will abide by and perform the judgment should the
petition be decided against him.
Two ways of initiating indirect contempt
proceedings
Tokio Marine Malayan Insurance Company Inc. v.
Valdez (2008)
Facts: On 15 October 1998, respondent filed with the
Regional Trial Court, Branch 35, Manila a complaint for
damages against petitioners. Petitioners filed their
respective motions to dismiss which were denied by the
trial court. On 24 May1999, petitioners filed a petition
for certiorari with prayer for a temporary restraining
order and preliminary injunction with the Court of
Appeals as regards the trial court’s denial of their
motions to dismiss. The Court of Appeals granted a writ
of preliminary injunction, restraining the trial court from
conducting further proceedings.
On 7 December 1999, respondent filed with
the Court of Appeals an “Urgent Notice of Taking of
Deposition Upon Oral Examination of Private Respondent
Jorge Valdez For Purposes of the Above-Captioned
Pending Case And For Such Other Legal Purposes As
May Be Warranted By Existing Law and
Jurisprudence.” It appears that respondent was already
75 years old and sickly. On 13 December 1999,
Page 254
Civil Procedure
ESGUERRA NOTES
petitioners filed with the Court of Appeals a petition to
cite respondent in contempt of court, alleging that in
filing with the appellate court an urgent notice of taking
his deposition, respondent violated the preliminary
injunction issued by the said court.
Issue: Was respondent’s insistence to take his
deposition, despite the writ of preliminary injunction
issued by the Court of Appeals, tantamount to an act of
indirect contempt of court?
Held: No. Contempt of court is a defiance of the
authority, justice or dignity of the court: such conduct as
tends to bring the authority and administration of the
law into disrespect or to interfere with or prejudice
parties litigants or their witnesses during
litigation. Succinctly, it is the despising of the
authority, justice, or dignity of the court. Rule 71
provides for two forms of contumacious acts direct and
indirect.
Indirect contempt refers to contumacious acts
perpetrated outside of the sitting of the court and may
include misbehavior of an officer of a court in the
performance of his official duties or in his official
transactions, disobedience of or resistance to a lawful
writ, process, order, judgment, or command of a court,
or injunction granted by a court or a judge, any abuse or
any unlawful interference with the process or
proceedings of a court not constituting direct contempt,
or any improper conduct tending directly or indirectly to
impede, obstruct or degrade the administration of
justice. It is governed by Section 3, Rule 71 of the 1997
Rules of Civil Procedure.
Before one may be convicted of indirect
contempt, there must be compliance with the following
requisites: (a) a charge in writing to be filed; (b) an
opportunity for respondent to comment thereon within
such period as may be fixed by the court; and (c) an
opportunity to be heard by himself or by counsel.
Records show that these requirements were complied
with.
The Court of Appeals, in CA-G.R. SP No.
56579, dismissed the charge for indirect contempt,
holding that respondent’s deposition was done in good
faith, thus:
It should be emphasized that what triggered
the holding of private respondents deposition last
December 14, 1999 was the use by the petitioners of
the June 09 and 28, 1999 depositions when at that time
no orders were issued by Us enjoining any proceedings
below. The use of the petitioners of June 09 and 28
depositions have been vigorously objected to by the
private respondent, contending that there was a
misunderstanding created when the private respondent
was cross-examined by the counsel for the
petitioners, and in his honest belief to clarify such
misunderstanding in the previous depositions,
the December 14, 1999 deposition was taken.
We see no reason to depart from the
foregoing findings by the appellate court. Moreover, the
taking of respondent’s deposition is not a part of the
court proceedings in Civil Case No. 98-91356, hence,
not covered by the writ of injunction issued by the Court
of Appeals. Let it be stressed at this point that we have
always abided by the dogma that courts must exercise
their contempt powers sparingly.
Torcende v. Judge Sardido (2003)
Held: Section 3, Rule 71, of the Revised Rules of Court
provides for the mode of commencing proceedings for
indirect contempt, to wit:
SEC. 3. Indirect contempt to be punished after
charge and hearing. - After charge in writing has
been filed, and an opportunity given to the accused
to be heard by himself or counsel, a person guilty of
any of the following acts may be punished for contempt:
(a) Misbehavior of an office of a court in the
performance of his official duties or in his official
transactions;
(b) Disobedience of or resistance to a lawful
writ, process, order, judgment, or command of a court,
or injunction granted by a court or judge. . . (Emphasis
and italics supplied)
… … …
Nazareno v. Barnes interpreted a written
charge to mean that either: 1.] an order requiring the
person to be charged with contempt to show cause why
he should not be punished for contempt, be issued by
the court; or 2.] a petition for contempt by way of a
special civil action under Rule 71 be initiated in order for
contempt proceedings to prosper:
At the outset, let it be stated that the
contempt proceeding against the petitioner was wrongly
initiated. The nature thereof being that of indirect
contempt, a written charge is necessary pursuant to
Section 7, Rule 71 of the Rules of Court. the written
charge may partake of the nature of (1) an Order
requiring the respondent (not accused) to show cause
why he should not be punished for contempt for having
committed the contemptuous acts imputed against him;
or (2) a petition for contempt by way of special civil
action under Rule 71 of the Rules of Court. The first
procedure applies only where the indirect contempt is
committed against a court or judge possessed and
clothed with contempt powers. The second, if the
contemptuous act was committed not against a court
nor a judicial officer with authority to punish for
contemptuous acts.
Strict compliance with the afore-cited guidelines is
mandatory considering that proceedings against a
person alleged to be guilty of contempt, as in this case,
are commonly treated as criminal in nature
Remedies
 Please see Section 2 for direct contempt and
Section 11 for indirect contempt quoted above
Use of falsified and forged documents constitutes
indirect contempt not direct contempt
Page 255
Civil Procedure
ESGUERRA NOTES

Judge Dolores Espanol v. Atty. Benjamin Formoso acts of the legislative, executive and judicial
(2007) departments of the Philippines, the laws of nature, the
measure of time, and the geographical divisions.

Facts: On 15 April 1994, Sharcons Builders Philippines,
Inc. (“Sharcons”) bought the subject parcel of land from
its supposed seller-owner, Morales. Subsequently, a
transfer certificate of title was issued in Sharcons’ name.
However, when Sharcons began to contruct a fence
around the property, they were prevented by the
caretaker of said lot who alleged that the property is
registered under the name of Spouses Mapua. Upon
checking with the Register of Deeds, this fact was
confirmed by the records. Based on these
circumstances, Sharcons filed a case for quieting of title
against Spouses Mapua. In their answer, Spouses Mapua
alleged, among others, that all the documents relied
upon by Sharcons are spurious and falsified.
In Gener v. De Leon, we held that courts are
not authorized to take judicial notice of the contents of
records of other cases even when such cases have been
tried or pending in the same court. Hence, we reiterate
that petitioner took judicial notice of the Decision
rendered by another RTC branch and on the basis
thereof, concluded that respondents used falsified
documents (such as land title and tax declaration)
when Sharcons filed its complaint for quieting. Verily,
the Court of Appeals did not err in ruling that
respondents are not guilty of direct contempt of court.

In the course of the proceedings, or on 9 July

2001, Judge Dolores L. Español issued an Order stating
that Benito See and Marly See, president and treasurer,
respectively, of Sharcons, and its counsel, Atty.
Benjamin Formoso have used a spurious certificate of
title and tax declaration when it (Sharcons) filed with
the RTC its complaint for quieting of title. Consequently,
petitioner declared respondents guilty of direct contempt
of court and ordered their confinement for ten (10) days
in the municipal jail of Dasmariñas, Cavite.

Issue: Whether Sharcons and its representatives may

be held liable for direct contempt

Held: No. The use of falsified and forged documents is a

contumacious act. However, it constitutes indirect
contempt not direct contempt. Such act is an improper
conduct which degrades the administration of justice.
In Santos v. Court of First Instance of Cebu, Branch
VI, we ruled that the imputed use of a falsified
document, more so where the falsity of the document is
not apparent on its face, merely constitutes indirect
contempt, and as such is subject to such defenses as
the accused may raise in the proper proceedings. Thus,
following Section 3, Rule 71, a contemner may be
punished only after a charge in writing has been filed,
and an opportunity has been given to the accused to be
heard by himself and counsel. Moreover, settled is the
rule that a contempt proceeding is not a civil action, but
a separate proceeding of a criminal nature in which the
court exercises limited jurisdiction. Thus, the modes of
procedure and the rules of evidence in contempt
proceedings are assimilated as far as practicable to
those adapted to criminal prosecutions. Perforce,
petitioner judge erred in declaring summarily that
respondents are guilty of direct contempt and ordering
their incarceration. She should have conducted a
hearing with notice to respondents.

Petitioner, in convicting respondents for direct

contempt of court, took judicial notice of the Decision in
Civil Case No. 623-92, assigned to another RTC branch,
presided by then Judge Tagle. Section 1, Rule 129 of the
Revised Rules of Court provides:

SEC. 1. Judicial notice, when mandatory. – A court shall

take judicial notice, without the introduction of evidence,
of the existence and territorial extent of states, their
political history, forms of government, and symbols of
nationality, the law of nations, the admiralty and
maritime courts of the world and their seals, the political
constitution and history of the Philippines, the official

Page 256